Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/lnacui2api/delivery/printdoc.do?jobhan
The Nebraska Supreme Court held that IN RE INTEREST OF KARLIE. D., A CHILD UNDER 18 YEARS OF AGE; STATE OF NEBRASKA, APPELLANT, v. GARY D., APPELLEE, AND MARTHA D., INTERVENOR-APPELLEE 283 Neb. 581; 2012 Neb. Lexis 44
it would be in Karlie’s best interest to be permanently awarded to her paternal grandmother, Martha D.
Karlie was born in August 2007 to Kara B. The state immediately petitioned custody of the minor child after she tested positive to drugs at birth. At this time the child’s biological father was unknown. Karlie was placed in foster care a few days after birth. On September 10th 2007, Gary D. petitioned the court for custody claiming he was Karlie’s father. The order was denied until paternity could be established. However. Gary was granted visitation to which he frequently brought his mother, Martha D, to accompany him on these visits. In August 2008 paternity was established and Gary D. was granted custody. Due to his hectic work schedule Martha D. often provided Karlie with daycare, sometimes overnight. The courts were aware and never expressed any conflict with this arrangment.
On March 23, 2009, both Gary and Karlie tested positive for methamphetamines. Karlie was placed with Martha at this time. On March 26, 2009 Karlie was removed from Martha’s home due to the positive drug test. Martha disputed stating it was due to a child molestation allegation against Karlie’s uncle. After a department investigation, it was determined this accusation was false. But Karlie was not placed back with Martha. In November 2009, the state moved to have Gary D., rights terminated and Martha filed to have Karlie placed with her. Shortly after this Gary D. died. On March 31, 2011, the juvenile court held that it would be in Karlies best interest to reside with her grandmother, but does not remove the court as guardian. And would schedule another hearing to determine if any subsidy or medicaid coverage was needed. At that June 16, 2011 hearing the Department presented a transitional plan that increased Martha and Karlies time together and over the course of 11 ½ months. At this time the courts did not remove themselves as guardian or grant custody to Martha.
Martha argued that the State could come in at anytime and take Karlie away. The State argued that Martha was too old to care for Karlie and that it was in Karlie’s best interest to stay with her younger and bonded with foster parents. While it is recognized that Martha is older that does not disqualify her from caring for Karlie. And while Karlie is attached to her foster parents she also has a lifetime bond with her paternal grandmother, Martha D. The State argues Karlies behavioral problems are linked to visits with Martha, there is no evidence to support that. A child psychologist was brought in as well but the court finds that her conclusions are not of a consistent or solid merit and the courts will not put much consideration to them.
Nebraska §43-246(5) (Cum. Supp. 2010), when separation from the juvenile’s home is necessary, relatives are to be considered “as a preferred potential placement resource.” This is also stated in the Departments own rules. Martha, wishes to adopt Karlie and records show she is physically, financially and in every other way capable to care for Karlie on a permanent basis. Karlie best interest is served by placement with Martha.
Labels for post: child custody, grandparent rights, visitation, custody, parental death.
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