Juvenile Law: Nebraska v. South Dakota

As an attorney who was first licensed in South Dakota, and who practiced there before moving to Nebraska, I grew accustomed to South Dakota procedures in different types of cases.  As a result, becoming acquainted with how things are done in Nebraska has been an adjustment and a definite learning experience.  Juvenile law is one area where there are definite differences between Nebraska and South Dakota.  Here are just a few of the differences between the two states, and my opinion on which is superior.

SD: Different types of cases involving juveniles (abuse & neglect, juvenile delinquency, child in need of supervision, etc.) each have their own chapter of the Code, and as a result, have slightly different procedures.

NE:  Different types of cases involving juveniles are all handled under one section of the Code, and therefore have uniform procedures.

Winner: NE.  It's really nice that the cases all have identical procedures, so that the attorneys and participants in the case cannot get tripped up by some minor difference in the procedures for different types of cases.  

SD: Child's attorney appointed to represent the interests of the child in an abuse & neglect case.  Child's attorney is an attorney for the child who also advocates the best interests of the child (as they quite often are the same thing), although a Guardian ad Litem (GAL) may be appointed if the child's stated interests appear to differ from the best interests of the child.  

NE: GAL appointed to represent the interests of the child in an abuse & neglect case.  GAL represents the best interests of the child, and an additional attorney may be appointed if the child's stated interests appear to differ from the best interests of the child.  

Winner: These are essentially equivalent, although just the reverse of one another.  

SD: Department of Social Services (DSS) prepares a Report to the Court before every hearing.  The Child's Attorney does not prepare a Report to the Court.  

NE: GAL prepares a Report to the Court before every hearing.  The Department of Health and Human Services (HHS) does not prepare a Report to the Court.  

Winner: Neither state wins.  There are benefits to both systems, and therefore I would recommend that both states adopt a requirement that DSS/HHS & the GAL/Child's Attorney prepare Reports to the Court.  HHS has information such as completion of parenting classes, treatment information from parents, as well as information about contacts with the parents, that is valuable for the parties, attorneys, and the judge to consider.  However, the GAL is more of an impartial outsider to the case than is DSS/HHS, and therefore is in a better position to make recommendations to the judge as to what should happen in the case going forward.  In addition, because the GAL is an attorney, and the social worker is not an attorney, the GAL is in a better position to review the law applicable to the case & ensure that it is complied with.  

SD: The State's Attorney represents DSS's interests and may require DSS to take action.

NE: The County Attorney does not represent HHS's interests, and HHS may bring in its own attorney if HHS's recommendations are in conflict with those of the County Attorney.  

Winner: South Dakota.  SD's procedure here is much cleaner and smoother.  It makes much more sense to have the County Attorney, who represents the interests of the State on a daily basis, advocate the position of a state agency.  Likewise, it makes sense for the County Attorney to have some control over the actions of the state agency prior to the case being heard before the judge.  

So as you can see, there are differences between how juvenile cases are handled in Nebraska and South Dakota.  There are benefits to the systems of each state, as well as reasons for the different approaches.  It also makes clear how important it is to be represented by an attorney familiar with these procedures.