The Nebraska Supreme Court recently held that procedural due process protections only attach for parents in non-court arrangements when the state causes a familial separation through explicit agency coercion. The Court’s holding is consistent with the narrow approach of the Sixth and Seventh Circuits in determining when a family’s due process rights attach in non-court involved child welfare cases. This narrow approach may be contrasted with the broader approach of the Third Circuit, which holds that due process protections attach whenever the state alters the custodial relationship between a parent and child. This Comment will argue that the broad standard of the Third Circuit creates stronger protections for families and is easier for courts to apply. Additionally, a legislative solution is needed to bring this frequently used practice out of hiding through codification. Part II of this Comment will provide relevant background information including the benefits and detriments of non-court arrangements, data quantifying their increased use by the state, and a comparison of both sides of the circuit split regarding when procedural due process rights attach in non-court settings. Part III will provide the facts and holding of the recent Nebraska Supreme Court case State v. Kerri S., which followed the Sixth and Seventh Circuits’ jurisprudence and denied the due process protections the Nebraska Court of Appeals had previously granted to the parent engaged in a non-court involved child welfare arrangement. Finally, Part IV will propose legislative solutions to provide heightened standards and procedures in non-court cases.
Claudia W. Brock,
Hidden in Plain Sight: Kerri S. and Nebraska’s Non-court Child Welfare System,
99 Neb. L. Rev. 988
Available at: https://digitalcommons.unl.edu/nlr/vol99/iss4/6