Protection Orders Must be Served by Law Enforcement

Neb. Rev. Stat. 28-311.09(8) provides:
Upon the issuance of any harassment protection order under this section, the clerk of the court shall forthwith provide the petitioner, without charge, with two certified copies of such order. The clerk of the court shall also forthwith provide the local police department or local law enforcement agency and the local sheriff's office, without charge, with one copy each of such order and one copy each of the sheriff's return thereon. The clerk of the court shall also forthwith provide a copy of the harassment protection order to the sheriff's office in the county where the respondent may be personally served together with instructions for service. Upon receipt of the order and instructions for service, such sheriff's office shall forthwith serve the harassment protection order upon the respondent and file its return thereon with the clerk of the court which issued the harassment protection order within fourteen days of the issuance of the harass­ment protection order. If any harassment protection order is dismissed or modified by the court, the clerk of the court shall forthwith provide the local police department or local law enforcement agency and the local sheriff's office, without charge, with one copy each of the order of dismissal or modification.
(Emphasis added).  Notice that this section requires service of the protection order on the respondent by law enforcement.  


Neb. Rev. Stat. 28-311.09(4) provides: 
A petition for a harassment protection order filed pursuant to subsection (1) of this section may not be with­drawn except upon order of the court. An order issued pursuant to subsection (1) of this section shall specify that it is effective for a period of one year unless otherwise modified by the court. Any person who knowingly violates an order issued pursuant to subsection (1) of this section after service shall be guilty of a Class II misdemeanor.
(Emphasis added).  Notice here that a person can be convicted of a protection order violation only if that protection order was served on the Respondent/Defendant.  


This is the ruling of the Nebraska Supreme Court in State v. Graff, 282 Neb. 746 (2011).  The Court held that the language of the statute is plain and unambiguous.  So the takeaway is that there can be no conviction for violation of a protection order, unless that protection order was personally served on the Respondent/Defendant by law enforcement, not by mail, not by the clerk, only by law enforcement.

Shaken Baby Syndome

When I was a law clerk, the year after I graduated from law school, I had the opportunity to watch two separate criminal trials where the issue was shaken baby syndrome.  In one trial, the defendant was convicted; in the other, the defendant was acquitted.  In both cases, the prosecution and defense both presented the testimony of expert witnesses on this very topic.  Needless to say, it was extremely interesting to watch and learn about.  However, it made very clear to me that the diagnoses of shaken baby syndrome is far from a medical certainty.  There are many variables that go into whether shaken baby syndrome is present in the particular child.  But even more interesting (at least to me), is the question of whether shaken baby syndrome even exists, as well as whether shaking alone can cause injury or if an impact of the head is needed.  I take no position on this, because frankly I lack the medical training to honestly evaluate it.

In the December 2011 issue of the ABA Journal, an American Bar Association publication, this very topic has been taken up.  I urge you to read it and consider the issue for yourself.  (The article is in the hard copy version of the ABA Journal, but hasn't yet been posted on their website.  Once it is, I'll add the link.)  Here is the link to the article (Updated 12/08/2011).  The ABA Journal has also written about this topic before.  This is a list of some of their other articles on the topic.

Identity Theft & Kids Aging Out of Foster Care

I recently attended the National Association of Counsel for Children (NACC) Conference.  At the conference, I heard in a couple of different breakout sessions about one particular problem that is facing foster kids who have aged out of the system or are about to do so.  That is the problem of identity theft.  Studies show that 1/2 of the kids in foster care in California are victims of identity theft.  Estimates are that fewer Nebraska foster care kids are victims, but any number other than zero is too many.  Making the problem even worse is that most of these kids don't discover the identity theft until they have already aged out of the system and are without support and assistance with cleaning up the problem.

While in foster care, kids' personal information, including date of birth and social security number, passes through an untold number of hands.  HHS/DSS caseworkers and supervisors, attorneys, court personnel, counselors and therapists, medical professionals, and others all come into contact with the children's files.  In addition, kinship placements, foster families, group home staff, and immediate family all get copies of the children's files.  When children's identifying information passes through so many people's hands, as well as is retained by the child's biological family, it's really not surprising that when these kids age out, they often find out that they are victims of identity theft.

So what can we do about it?  Well for one thing, we can use something other than the children's social security number as an identifier.  All students in Nebraska are assigned a student identification number.  This is a system, already in place, that could be expanded and used to identify kids in the child welfare system as well.  This would make it slightly more difficult for the identities of children to be compromised.

In addition, we can do credit checks of foster care kids when they are 16 years old, so that identity theft & credit problems can be cleaned up before they age out of the system.  Many states have already enacted legislation mandating that their states' HHS/DSS do this as part of the process of educating and preparing those kids who are about to age out of the system.  Nebraska could certainly use those states' laws as a model for legislation here.  HHS could begin doing these credit checks as part of the process of preparing foster care kids to age out, even without legislation in place.  Guardians ad litem can and should assist in this process.

Moreover, kids who are about to age out of the system need to be educated so that they can protect themselves against others taking advantage of them once they do age out.  This education needs to be very practical and pragmatic.  Topics such as how you check your credit reports, what are the implications of cosigning or taking out a loan for someone else, etc. need to be covered.  Guardians ad litem need to ensure that these kids are getting the information that they need on this front.

This is something that cannot wait.  We need to begin taking these steps immediately to protect these children from further identity theft, and to help them clean up the cases of identity theft that have already occurred.

Rural Law Practice and My Home State of South Dakota

I'm new to Nebraska, and new to rural practice.  When I lived in South Dakota, I practiced law from Rapid City, and ventured to other, smaller towns for the occasional case.  In Nebraska, I live and practice in a much more rural setting.  Holdrege is a town of about 5,000 people, set in a county of about 10,000 people.  However, many of my cases come out of the surrounding counties, the county seats of which are much smaller.

When I was a law student, I distinctly remember the Chief Justice of the South Dakota Supreme Court, David Gilbertson speaking to law students about the absence of attorneys in many rural communities and the problems this was creating in the administration of justice.  I remember thinking that rural practice could be an excellent opportunity, but not having a clue as to how one would find out about rural communities in need of attorneys.

Well, the South Dakota State Bar Association has taken up the challenge of studying the decline of rural law practice through its recent announcement of the creation of the Rural Practice Task Force (see page 2 of the State Bar Newsletter).  This development has been widely reported on, both within South Dakota (see the Argus Leader's coverage), as well as more widespread national coverage (see the Wall Street Journal Law Blog's coverage, see this post from the Rural Lawyer blog, and see this post from My Shingle).

So why am I posting on this topic on a blog devoted to Nebraska legal issues?  Because the state of Nebraska faces similar challenges.  In my short time thus far practicing law in Nebraska, I have already heard from one judge and multiple attorneys about the need for attorneys in certain rural communities, as well as the gratitude and relief that some new attorneys are moving to more rural communities to begin their careers.

What should be done to address the problem of 'justice denied' in rural communities?  I'm not exactly sure, but I think that the task force created by the South Dakota State Bar is an excellent first step.  I, for one, will be following the task force's activity to see what they discover.

Answers to Questions on Avvo.com

I have answered questions on a variety of topics on Avvo.com, and thought that I would share those answers here.  I hope that you find them helpful.

Non-Probate Assets

I have previously posted on my other blog Back in the Black Hills, explaining (see this post) why it is necessary for everyone to have a will, and explained some of the topics that are frequently covered in in a will.  I also explained that it's important to have an attorney draft that will for you because the attorney should be familiar with state law & can customize your estate planning documents to your needs.

In that post, I didn't cover the topic of non-probate assets.  Non-probate assets are things like 401Ks, IRAs, annuities, and insurance policies.  These are called non-probate assets because they pass outside of probate court.  These assets pass directly to the person listed as beneficiary, or directly to a spouse without a beneficiary designation.

Because of non-probate assets, it is important to review beneficiary designations to determine whether those designations are still appropriate.  In addition, it is important to let your estate planning attorney know about these kinds of assets so that the attorney can make recommendations to you, in order to ensure that your estate passes as you would like it to.  This post explains in more detail why it is so important.

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.  

New to Nebraska

I recently relocated from my hometown in the Black Hills of South Dakota to Holdrege, Nebraska.  It has definitely been a change for a girl used to seeing mountains every day to go to the prairies.  However, the landscape is not the only thing that is different about living in Nebraska.

On my other blog, Back in the Black Hills, I talk about legal issues in South Dakota.  On this blog, I will discuss legal issues relating to Nebraska.  From time to time, I may post a topic on both blogs and talk about the differences between the law in Nebraska and South Dakota, as those may be of interest to readers interested in both states' law.

I hope that the topics discussed are of interest to you!  Happy reading!

Areas of Practice

Juvenile Law:

- Guardian ad Litem

- Juvenile Delinquency

- Abuse and Neglect

Criminal Defense:

- DUI/DWI

- Misdemeanor

- Felony

Family Law:

- Adoption

- Name Change

- Guardianship

- Paternity

- Child Support

- Child Custody
- Divorce

Small Estate Planning:

- Wills

- Powers of Attorney

- Living Wills

- Child Care Powers of Attorney

Other:

- Expungement (South Dakota)

- Exceptional Pardon (South Dakota)
- Motion to Set Aside Conviction (Nebraska)

- Involuntary Commitment

- Mental Hold

- Habeas Corpus

- Protection Order

Contact Information

Law Offices of Tana M. Fye
701 Fourth Avenue, Suite 11
Holdrege, NE 68949
605.939.0295
tanafye@gmail.com
Licensed in NE and SD

Blog on Nebraska legal issues: http://frommountainstoprairies.blogspot.com/
Blog on South Dakota legal issues: http://backintheblackhills.blogspot.com/

Attorney Profile

Tana Fye is a sole practitioner who is licensed in Nebraska and South Dakota.  She first opened her law practice in Rapid City, South Dakota after one year as a law clerk with the Second Judicial Circuit Courts in Sioux Falls, South Dakota, where she worked under ten judges and a staff attorney performing legal research and drafting decisions and opinions.  She recently relocated to Holdrege, Nebraska and reopened her law practice there.  

Tana received her Juris Doctor degree from The University of South Dakota in 2009.  While attending law school, Tana was a member of the Client Counseling & Negotiation/Alternative Dispute Resolution Board, where she competed in national arbitration and negotiation competitions, as well as won an intra-school negotiation competition.  Tana also served as secretary/treasurer for her law school class, and was involved in Delta Theta Phi, a legal honor society.  Tana earned high grades in the following courses while in law school: Remedies, Federal Jurisdiction, Conflict of Laws, Immigration Law, and Contracts I & II.  

Tana also received a Master of Public Administration degree from The University of South Dakota in 2009.  Tana earned a 4.0 grade point average in her master's program, and was awarded membership in the Pi Alpha Alpha Honor Society.  While in the master's program, Tana performed research and wrote her professional report on Qualified Expert Witnesses Under the Indian Child Welfare Act.  

Tana received her Bachelor of Arts degree in Political Science from The University of South Dakota in 2006. While an undergraduate, Tana was in the Honors Program and graduated as a University Scholar, was on the Dean's List and graduated Cum Laude, served in several leadership positions in the Student Government Association, was Involved in her sorority--Alpha Xi Delta, and performed in the University Orchestra and Chamber Orchestra.  She also received several scholarships and awards from the Farber Center, the Political Science Department, Music Department, and the University.  Tana wrote her Honors Thesis on the topic of Gender Bias in the Eight Circuit Courts.  

Tana is from the Black Hills of South Dakota, but now lives on the prairie in Holdrege, Nebraska.  She enjoys playing the cello, drag racing with her family, reading, travelling, and spending time with her fiance.  

Home

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