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Rev. Stat. § 43-279.01
Nebraska
Revised Statutes of 1943
Chapter
43. Infants and Juveniles
Article
2. Juvenile Code
(D)
Preadjudication Procedures
§
43-279.01. Juvenile in need of assistance or termination of parental
rights; rights of parties; proceedings.
(1) When the petition
alleges the juvenile to be within the provisions of subdivision (3)(a)
of section 43-247 or when termination of parental rights is sought pursuant
to subdivision (6) or (7) of section 43-247 and the parent or custodian
appears with or without counsel, the court shall inform the parties of
the:
(a) Nature of the proceedings
and the possible consequences or dispositions pursuant to sections 43-284,
43-285, and 43-288 to 43-295;
(b) Right to engage counsel
of their choice at their own expense or to have counsel appointed if unable
to afford to hire a lawyer;
(c)
Right to remain silent as to any matter of inquiry if the testimony sought
to be elicited might tend to prove the parent or custodian guilty of any
crime;
(d) Right to confront
and cross-examine witnesses;
(e) Right to testify and
to compel other witnesses to attend and testify;
(f) Right to a speedy
adjudication hearing; and
(g) Right to appeal and
have a transcript or record of the proceedings for such purpose.
(2) After giving the parties
the information prescribed in subsection (1) of this section, the court
may accept an in-court admission, an answer of no contest, or a denial
from any parent or custodian as to all or any part of the allegations
in the petition. The court shall ascertain a factual basis for an admission
or an answer of no contest.
(3) In the case of a denial,
the court shall allow a reasonable time for preparation
if needed and then proceed to determine the question of whether the juvenile
falls under the provisions of section 43-247 as alleged. After hearing
the evidence, the court shall make a finding and adjudication to be entered
on the records of the court as to whether the allegations in the petition
have been proven by a preponderance of the evidence in cases under subdivision
(3)(a) of section 43-247 or by clear and convincing evidence in proceedings
to terminate parental rights. If an Indian child is involved, the standard
of proof shall be in compliance with the Nebraska Indian Child Welfare
Act, if applicable.
(4) If the court shall
find that the allegations of the petition or motion have not been proven
by the requisite standard of proof, it shall dismiss the case or motion.
If the court sustains the petition or motion, it shall allow a reasonable
time for preparation if needed and then proceed to inquire into the matter
of the proper disposition to be made of the juvenile.
Source: Laws 1985, LB
447, § 23; Laws 1989, LB 22, § 3.
CROSS REFERENCE
Nebraska Indian Child
Welfare Act, see section 43-1501.
NOTES
OF DECISIONS
Subsection (1) of this
section states in part that when a petition alleges a juvenile to be within
the provisions of subsection (3)(a) of section 43-247 and the parent or
custodian appears with or without counsel, the court shall inform the
parties of the right to confront and cross-examine witnesses. Subsection
(3) of this section provides that when adjudicating whether a juvenile
is dependent or neglected within the purview of subsection (3)(a) of section
43- 247, the State must establish its allegations by a preponderance of
the evidence. In re Interest of Danielle D. et al., 257 Neb. 198, 595
N.W.2d 544 (1999).
Adequate
notice of the possibility of the termination of parental rights must be
given in adjudication hearings before the juvenile court may accept an
in-court admission, an answer of no contest, or a denial from a parent.
A parent in a juvenile court case has the right to appointed counsel if
unable to hire a lawyer. In re Interest of N.M. and J.M., 240 Neb. 690,
484 N.W.2d 77 (1992).
Eight-month delay between
the time when the child is "temporarily" taken from the child's
parent until an adjudication hearing is held cannot be condoned, even
when the parties agree to repeated continuances. In re Interest of D.M.B.,
240 Neb. 349, 481 N.W.2d 905 (1992).
To determine whether due
process requires the assistance of counsel for the parent in a temporary
detention proceeding under sections 43-247(3)(a) and 43- 254, the court
must weigh the interest of the parent, the interest of the State, and
the risk of erroneous decision given the procedures in use. In re Interest
of R.R., 239 Neb. 250, 475 N.W.2d 518 (1991).
The statutory provision
requiring that an adjudication hearing be held within six months after
a juvenile petition is filed is directory, not mandatory. In
re Interest of C.P., 235 Neb. 276, 455 N.W.2d 138 (1990).
A ruling refusing to permit
the withdrawal of an answer of no contest filed pursuant to the provisions
of this section is not a final, appealable order. In re Interest of C.D.A.,
231 Neb. 267, 435 N.W.2d 681 (1989).
The trial court's failure
to advise a mother of her rights, of the possible dispositions, or of
the nature of juvenile court proceedings arising from the State's petition
alleging that the mother inappropriately disciplined her 20- month-old
child and that the child was without proper parental care through the
mother's fault or habits violated the mother's due process rights, even
though the mother vigorously defended against the charges. In re Interest
of Billie B., 8 Neb. App. 791, 601 N.W.2d 799 (1999).
Failure to advise a party
to a termination hearing of his or her rights as delineated in this section
requires reversal of the order of termination. In re Interest of Joelyann
H., 6 Neb. App. 472, 574 N.W.2d 185 (1998).
Failure of a court to
provide the parties with explanations and warnings as mandated by this
section results in a denial of due process. In re Interest of A.D.S. and
A.D.S., 2 Neb. App. 469, 511 N.W.2d 208 (1994).
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