- Associated Press - Tuesday, June 16, 2015

OMAHA, Neb. (AP) - A father was unfairly blindsided by allegations from state officials at a hearing to remove his and his wife’s five children from their custody, the Nebraska Court of Appeals found Tuesday.

The ruling came in the case of a couple, listed only as Richard W. and Susan W., whose children were taken from them by local authorities following an investigation by state Child Protective Services last year. That action came after an investigator found three of their children - ages 12, 9 and 18 months - alone in a central Nebraska hotel room.

A month earlier, the family had moved to Albion, Nebraska, from Tennessee to live with Susan’s sister, but was kicked out following a disagreement between the sisters.

The family had lived for several days in a room of a motel where the father was working when Child Protective Services was called to investigate accusations of child neglect and alcohol and prescription drug abuse by the parents.

While two of the children attended elementary school, the three others were found alone in the hotel room. The oldest child - a month from turning 13 - was in charge, and the children had access to both food and a phone in the room. Their father also regularly called to check on them. The Child Protective Services investigator found an empty bottle of a prescription painkiller and a nearly empty bottle of Valium in the room.

The parents explained that Susan had a court hearing and Richard needed to go with her to collect her bond money to use to help care for the family. Because they could not bring the toddler with them to court, they had the 12-year-old and 9-year-old stay home from school to care for the young child.

Based on that and concerns that Richard and Susan were abusing prescription drugs and alcohol, officials sought to remove the children. At the hearing, however, the state presented additional evidence, including claims that the children had lice and that Richard and Susan had asked someone about buying drugs.

The Nebraska Court of Appeals agreed with Richard that the state’s last-minute introduction of new evidence left him unable to provide a defense to them, violating his due process rights. It also found that the remaining allegations of leaving the children alone for several hours and drinking heavily on one documented occasion were not enough to remove the children. Allegations of drug abuse were never proven, the appellate court said.

“Based on this evidence, we cannot say that there was a definite risk of future harm to the minor children or that they were neglected, in a situation dangerous to life or limb, or lacked proper parental care under the circumstances,” Judge Francie Riedmann wrote.

A spokeswoman for the Nebraska Department of Health and Human Services referred questions to the Boone County Attorney’s Office, which argued the case in court. Boone County Attorney Jim Ely, who was just elected this year, said Tuesday he’s considering filing a petition asking the Court of Appeals to further review the case.

An attorney for the father did not immediately returned messages Tuesday seeking comment.

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