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The court has ordered that the mother and stepfather participate in a parenting program, as directed by the Department Health and Human Services. The parents have looked diligently for a parenting program that does not violate their Biblically-based religious beliefs as protected by the First Amendment of the Bill of Rights, and by the Nebraska Constitution: Sec. 4. All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No person shall be compelled to attend, erect or support any place of worship against his consent, and no preference shall be given by law to any religious society, nor shall any interference with the rights of conscience be permitted.



The parents have been unable to locate a Biblically-based parenting program in order to satisfy this requirement of the case plan. The Department of Health and Human Services (DHHS) has not attempted to locate a Biblically based parenting program to facilitate the parent’s success with the treatment plan in violation of their own policies: 5-003.01 When community-based programs are not available or appropriate, contracted or staff-provided services will be considered. 5-001.02 Supervisory Staff roles and responsibilities during ongoing services are to: . ..identify and assist in removing barriers to service delivery.



Furthermore, DHHS has failed to obtain the parent’s and the child’s active involvement with the devising the case plan as required by DHHS policies: 5-004 All families and children involved with the Department will

be provided with the following services 2. A case plan developed with the family and child. . 5-004.02B Case planing is the responsibility of the worker with the active involvement of the child and family . . . 6. It is the understanding of the parents that DHHS is attempting to make the parents compromise their devoutly held religious beliefs pertaining to the upbringing of children or risk losing parental rights to the child. The parents vehemently object to this invasive and illegal requirement they are being burdened with.

REMEDY The parents request this court to clarify, for the record, the following questions pertaining to the parenting classes: 7. Is the court ordering the parents to compromise their religious beliefs pertaining to the upbringing of their children by attending and successfully completing secular parenting classes that are based on worldly psycho-babble and which are in direct contradiction to their devoutly held religious beliefs, or else risk the failure to successfully complete the case plan as ordered by the court and ultimately risk losing their child by Termination of Parental Rights as a result of that failure? Or Will the court order DHHS to provide the parents with parenting classes that conform to the teaching of the King James version of the Holy Bible by a religious expert qualified to teach the Bible as the literal and divine revelation of God in accordance with DHHS’s own policies? Or Will the court find that an appropriate case plan cannot be devised based on the religious convictions of the parents and punish the parents for those devoutly held convictions by continuing to sever them from their God-given relationship with their son, the child in this case? Or Will the court find that the unavailability of said parenting classes cannot be held against the parents without violating their protected right to practice their religion according to their consciences and will, therefore, not be used to support any action to withhold custody of the child from the parents? The second item of the case plan, involving individual/family counseling programs approved by DHHS is vague. The parents are already involved in counseling through their own provider and the caseworker has not been forthcoming as to whether or not their therapy provider is acceptable to the DHHS, and if not, DHHS has refused to explain why not in a timely manner.





REMEDY The parents respectfully request the court to clarify the following questions:


Is the parent’s current participation in therapy fulfilling the therapy requirement of the case plan? If the current therapy provider(s) are not acceptable, what requirements are necessary to make the current provider(s) acceptable? If the parent’s invoke their Fifth amendment rights1 pertaining to the issued disclosed to their therapists in confidence, what information is legitimately required by DHHS to satisfy their requirements other than a. whether or not the parents are attending regularly, and b. whether or not they are able to appropriately parent their children; and c. what legitimate reason exists to support DHS’s claim that the additional information is necessary to the successful completion of this provision of the case plan? Is the department permitted by the court to influence the treatment provided by the therapists with respect to the parent’s religious beliefs pertaining to the parenting of their children, which action would affect the department’s assessment as to whether the parents successfully completed this element of the case plan? The parents have attempted to cooperate with the caseworker in facilitating the success of this case plan. The caseworker has not been cooperative with the parent’s desire to audio record all meetings with the caseworker and the caseworker has refused to speak with the parents if they are recording the meetings. This refusal is prima facie evidence of bad faith one the part of the caseworker and proves his desire to have the parents fail to successfully complete the case plan. If he has nothing to hide, he should not fear that the parents are recording the conversations for their personal use. The parents assert their right to obtain an accurate record of all meetings in order to properly understand all requirements imposed upon them and to assist their successful completion of the case plan pursuant to: 86-702 (c) It shall not be unlawful under sections 86-701 to 86-707 for a person not acting under color of law to intercept a wire, electronic, or oral communication when such person is a party to the communication or when one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any state.





REMEDY 17. The parents request the court to order the caseworker to participate in all communications with the parents regardless of whether the parents are recording said communications or not.


The parents request the court to order the caseworker to actively facilitate the parents’ success with the case plan and to exhibit no more obstructionist behaviors in his professional capacity to the detriment of the family.

The parents respectfully remind the court of the following facts: 19. The incident which caused the intervention by DHHS was an isolated incident; it had never happened before. The alleged injuries on the child were unintentional and accidental; and the severity of the disobedience of the child was a contributing factor in the severity of the punishment. The punishment was primarily designed impress upon the child the extreme danger he had exposed himself to and to protect the safety of the child because he had endangered himself by his actions. His actions actually put his own life in danger. This required a lasting lesson be imposed upon him. The lesson was effective; he has stated he will never endanger himself in that manner again. There is no history of domestic violence on the part of either parent. The alleged injuries on the child did not require any medical treatment; nothing, not so much as an analgesic to relieve any alleged pain. The child has expressed a sincere desire to return to his parents. The first, best interests of the child is to be with his family and is supported by DHHS policy: 6-001.01. Family preservation will be the first consideration. . . The parents are not a danger to this child, and the child desires to return home. DHHS cannot demonstrate that the parents are a danger to this child, nor can they demonstrate that they ever were enough of a danger to this child that would require his removal from the home. The parents are attempting to comply with the treatment plan despite the obstructionist actions of the case worker. (See attached letter to caseworker) Reasonable efforts were not made to reunify the family as required by the law in the absence of any evidence that the child was in danger from the parents.


21. 22.





REMEDY 27. The parents request the court to begin immediate reunification efforts. The parents have prepared a reunification plan for the court’s consideration. (Attached) Respectfully submitted ______________________________________________________________________________ MEMORANDUM OF LAW ____________________________________________________________________________

1. It is an ancient principle of the law of evidence that a witness shall not be compelled, in any proceeding, to make disclosures or to give testimony which will tend to criminate him or [142 U.S. 547, 564] subject him to fines, penalties, or forfeitures. Rex v. Slaney, 5 Car. & P. 213; Cates v. Hardacre, 3 Taunt. 424: Maloney v. Bartley, 3 Camp. 210; 1 Starkie, Ev. 71, 191; Case of Sir John Friend, 13 How. St. Tr. 16; Case of Earl of Macclesfield, 16 How. St. Tr. 767; 1 Greenl. Ev. 451; 1 Burr’s Tr. 244; Whart. Crim. Ev. (9th Ed.) 463; Southard v. Rexford, 6 Cow. 254; People v. Mather, 4 Wend. 229; Lister v. Boker, 6 Blackf. 439. COUNSELMAN v. HITCHCOCK, 142 U.S. 547 This court has ordered the parents to submit to a psychiatric evaluation and participate in counseling - and to provide the department with all information obtained during those evaluations and sessions by ordering them to sign all releases. The court, has, in effect, compelled the parents to disclose personal thoughts and feelings to a therapist, possibly not of their choosing, to be evaluated subjectively, which evaluation has no guarantee of accuracy since psychology is an art, not a science, and to have all of these subjective, personal and private disclosures presented as evidence against her in the upcoming adjudication hearing violating not only their right against self-incrimination, but their right to privacy, and their right to the confidentiality of the patient-therapist relationship. The state cannot at this time demonstrate an overriding interest that would permit their and their children’s rights to be so trampled in order to facilitate the state’s fishing expedition against them as a parent. The Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of “physical or moral compulsion” exerted on the person asserting the privilege, Perlman v. United States, 247 U.S. 7, 15 (1918); Johnson v. United States, 228 U.S. 457, 458 (1913); Couch v. United States, supra, at 328, 336. See also Holt v. United States, 218 U.S. 245, 252-253 (1910); United States v. Dionisio, 410 U.S. 1 (1973); Schmerber v. California, 384 U.S. 757, 765 (1966); Burdeau v. McDowell, 256 U.S. 465, 476 (1921); California Bankers Assn. v. Shultz, 416 U.S. 21, 55 (1974). In Miranda v. Arizona, ante, at 460, the Court said of the interests protected by the privilege: “All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government - state or federal - must accord to the dignity and integrity of its citizens. To maintain a `fair state-individual balance,’ to require the government `to shoulder the entire load’ . . . to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” . . Moreover, since it enables the State to rely on evidence forced from the accused, the compulsion violates at least one meaning of the requirement that the State procure the evidence against an accused “by its own independent labors.” If such compulsion is used to obtain their cooperation with the therapist, then any evidence discovered during those evaluations and therapeutic sessions must be excluded for the purposes of adjudication, or for any other aspect of this case.

“It is extortion of information from the accused himself that offends our sense of justice.” Couch v. United States, supra, at 328. We adhere to the view that the Fifth Amendment protects against “compelled self-incrimination, not [the disclosure of] private information.” United States v. Nobles, 422 U.S. 225, 233 n. 7 (1975). Expressions are legion in opinions of this Court that the protection of personal privacy is a central purpose of the privilege against compelled self-incrimination. “It is the invasion of [a person’s] indefeasible right of personal security, personal liberty and private property” “that constitutes the essence of the offence” that violates the privilege. Boyd v. United States, supra, at 630. The privilege reflects “our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life.’” Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1964). “It respects a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation.” Couch v. United States, supra, at 327. See also Tehan v. United States ex rel. Shott, 382 U.S. 406, 416 (1966); Miranda v. Arizona, 384 U.S. 436, 460, (1966). “The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.” Griswold v. Connecticut, 381 U.S. 479, 484 (1965). See also Katz v. United States, 389 U.S. 347, 350 n. 5 (1967). The law also recognizes that some relationships are the opposite of adversarial, instead constituting relationships of trust. These relationships depend for their very existence and efficacy on the assurance that information so communicated will NEVER be used against either of the parties to the communication. Foremost among these privileges is that between attorney and client. Similar recognition is given to the relationship of priest-penitent, husband-wife (in Utah), doctor-patient, and therapist-patient. Privileged interpersonal communications are an essential aspect of the privilege against self-incrimination. Without the existence of these privileges, marriage, medicine, counseling, and indeed, the legal profession itself would be crippled virtually out of existence. No meaningful communication could be given out of fear that something, anything, one says might be used against him or her in a court of law. One cannot simultaneously hold a position of trust and privilege with an accused and at the same time be a prosecution witness. The right against self-incrimination, including the protection of privileged communications, is a right personal to all accused persons. In contrast, the state does not possess rights. It possesses only delegated powers. Thus, whereas the protection of privacy must be assumed for individuals as a matter of right, governmental functions must be assumed to be public as a matter of obligation. Indeed, Schmerber v. California, 384 U.S. 757, 764 (1966), held: “Some tests seemingly directed to obtain ‘physical evidence,’ for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an

effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege ‘is as broad as the mischief against which it seeks to guard.’...” “And any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.” Boyd v. United States, 116 U.S., at 631-632.