This appeal requires an examination of the interplay between Nebraska's adoption statutes
Gabriela H. was born in September 1997. On or about November 7, 2008, Gabriela's biological mother left Gabriela at an Omaha hospital. On November 7, the State filed a petition in the separate juvenile court of Douglas County alleging that Gabriela was a child under § 43-247(3)(a) because her mother was "refusing to provide [her] with appropriate care, support and/or supervision." The petition alleged that Gabriela was then in the custody of DHHS.
On February 23, 2009, the juvenile court adjudicated Gabriela under § 43-247(3)(a) and ordered that she remain in the temporary custody of DHHS. The court also ordered Gabriela's mother to pay child support.
At a subsequent permanency planning hearing held on November 10, 2009, a representative of the State Foster Care Review Board recommended adoption as the permanency objective, noting that there had been no contact between Gabriela and her biological parents during the 11 months that she had been in foster care. The deputy county attorney and the guardian ad litem agreed that the permanency objective should be adoption, noting that both parents were willing to relinquish parental rights but that DHHS was refusing to accept relinquishment. Counsel for Gabriela's mother confirmed that he had informed DHHS of the mother's decision to relinquish her parental rights, but that DHHS was unwilling to accept relinquishment. Counsel for Gabriela's father also indicated that he had informed DHHS that the father was willing to relinquish his parental rights. But counsel for DHHS told the court that DHHS "doesn't like to accept relinquishments when [it doesn't] have a permanent home for the child yet" and expressed concern over accepting relinquishment when a parent was paying a "substantial amount" of child support. DHHS requested that the court defer any action on the relinquishment for 3 months while DHHS attempted to find an adoptive home for Gabriela.
In an order entered on November 12, 2009, the juvenile court found as follows:
Based upon these findings, the court ordered that Gabriela remain in the custody of DHHS for appropriate care and placement and that DHHS "shall accept relinquishment by the parents." DHHS perfected an appeal from this order, which we moved to our docket pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.
ASSIGNMENT OF ERROR
DHHS assigns, restated, that the juvenile court erred in ordering it to accept the relinquishments of parental rights.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings.
Nebraska's statutory procedures for adoption include the following provision:
DHHS contends that the decision to accept a relinquishment of parental rights is within its sole discretion and that it cannot be compelled by a juvenile court to do so.
As a statutorily created court of limited and special jurisdiction, a juvenile court has only such authority as has been conferred on it by statute.
Although the juvenile code gives DHHS a certain degree of discretion with respect to children placed in its custody, that discretion is subject to the superior right of the juvenile court to determine what is in the child's best interests. For example, § 43-284 authorizes various placement options for adjudicated children, including "some association willing to receive the juvenile" or DHHS. This language indicates that while other child placement agencies have a choice as to whether to take placement, DHHS can be ordered by the court to accept the juvenile's placement. Additionally, if a juvenile is voluntarily relinquished by his or her parents, § 43-284.01 requires that the juvenile shall remain in the custody of DHHS or another authorized placement agency unless the court finds by clear and convincing evidence that such placement is not in the child's best interests. And the juvenile court is not bound by a placement plan created by DHHS. Section 43-285(2) expressly authorizes the court to reject a placement plan created by DHHS and implement an alternative plan based on the juvenile's best interests. These statutes clearly demonstrate that the juvenile court has the authority to determine placement of a juvenile under its jurisdiction even if such determination is contrary to DHHS' position.
Furthermore, pursuant to § 43-285(1), DHHS is expressly limited in its authority over juveniles placed in its custody; § 43-285(1) provides that DHHS has "authority, by and with the assent of the court, to determine the care, placement, medical services, psychiatric services, training, and expenditures on behalf of each juvenile committed to it." (Emphasis supplied.) We have recognized the authority of a juvenile court to order the removal and replacement of a DHHS case manager, noting that juvenile courts have been given the power by the Legislature to assent and, by implication, to dissent from the placement and other decisions of DHHS.
DHHS argues that § 43-285(1) does not apply to Gabriela's case because the juvenile court did not award DHHS care of Gabriela, but, rather, care was voluntarily relinquished by the parents. This argument ignores the fact that the juvenile court awarded DHHS temporary custody of Gabriela prior to the November 2009 permanency hearing. DHHS also argues that § 43-285(1) does not apply to Gabriela's case because § 43-106.01, which authorizes DHHS to accept a voluntary relinquishment of parental rights, is not included in the juvenile code. However, as Gabriela was adjudicated under § 43-247(3)(a), she is under the juvenile court's jurisdiction, and in determining its disposition, the court is guided by the juvenile code.
Finally, we note that the juvenile code also contains the following provision:
Statutes relating to the same subject matter will be construed so as to maintain a sensible and consistent scheme, giving effect to every provision.
SEPARATION OF POWERS
We also reject DHHS' argument that permitting a juvenile court to order DHHS to accept a parent's relinquishment would be an infringement on the separation of powers between the judicial and executive branches in violation of art. II, § 1, of the Nebraska Constitution. DHHS argues that the court's authority to enter an order relieving a parent of his or her rights comes only after DHHS or another child placement agency has accepted the relinquishment pursuant to § 43-106.01. In support of its argument, DHHS relies upon its own regulations as published in the Nebraska Administrative Code. These regulations specify the process by which DHHS accepts a relinquishment, including a determination by DHHS as to whether relinquishment is in the best interests of the child and family.
It is clear from the record that DHHS declined to accept the relinquishment of parental rights because one of the parents was paying a "pretty substantial amount" of child support which partially offset DHHS' cost with respect to Gabriela's care.
Accordingly, for the reasons discussed, we hold that where a juvenile has been adjudicated pursuant to § 43-247(3)(a) and a permanency objective of adoption has been established, a juvenile court has authority under the juvenile code to order DHHS to accept a tendered relinquishment of parental rights. Here, the juvenile court did not err in exercising that authority.
For the reasons discussed, we affirm the judgment of the separate juvenile court.