In re Interest of A.A. ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/04/2022 08:06 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 310 Neb. 679In re Interest of A.A. et al., children
under 18 years of age.
State of Nebraska, appellee, v. Joshua C.,
appellant, and Stacy J., appellee.
___ N.W.2d ___
Filed January 7, 2022. No. S-21-421.
1. Judgments: Appeal and Error. The construction of a mandate issued
by an appellate court presents a question of law, on which an appellate
court is obligated to reach a conclusion independent of the determination
reached by the court below.
2. Appeal and Error. Appellate review is guided and constrained by the
assignment of error as articulated by the party appealing.
3. Notice: Appeal and Error. The assignments of error section is one of
the most critical sections of an appellant’s or cross-appellant’s brief. It
gives the opposing party notice of what alleged errors to respond to and
advises the appellate court of what allegations of error by the trial court
it has been called upon to address.
4. Appeal and Error: Words and Phrases. A “remand” is an appellate
court’s order returning a proceeding to the court from which the appeal
originated for further action in accordance with the remanding order.
5. Courts: Appeal and Error. When a lower court is given specific
instructions on remand, it must comply with the specific instructions and
has no discretion to deviate from the mandate.
6. Child Custody. Temporary physical custody with a noncustodial parent
should not create a substantial and unnecessary hindrance to efforts of
reunification with the custodial parent.
Appeal from the Separate Juvenile Court of Lancaster
County: Reggie L. Ryder, Judge. Affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 310 Neb. 679Patrick F. Condon, Lancaster County Attorney, and Haley N.
Messerschmidt for appellee State of Nebraska.
Theresa Cusic, of Legal Aid of Nebraska, for appellee
Stacy J.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Upon remand, following our opinions in In re Interest of
A.A. et al., 307 Neb. 817, 951 N.W.2d 144 (2020) (A.A. I),
and In re Interest of A.A. et al., 308 Neb. 749, 957 N.W.2d
138 (2021) (A.A. II) (denying motion for attorney fees), the
separate juvenile court of Lancaster County held a hearing on
reunifying the juvenile, B.C., from a foster home to the home
of one of the child’s biological parents. The juvenile court
entered an order placing physical custody of the minor child
with his biological mother, Stacy J., from whom B.C. had
initially been taken. It also considered and overruled a motion
for legal custody and placement of B.C. filed by the biological
father, Joshua C. Joshua appeals the order of the juvenile court
and claims that the order placing custody of B.C. with Stacy
exceeded our mandate. We affirm.
STATEMENT OF FACTS
Prior Proceedings.
The circumstances of B.C.’s removal from Stacy’s home fol-
lowing a petition alleging child endangerment are set forth fully
in our main opinion, A.A. I, supra, which we summarize below
as relevant to the present appeal. The main opinion, published
in November 2020, addressed two consolidated appeals from
ongoing proceedings to adjudicate B.C., who had previously
lived with Stacy and her other children. B.C. was removed
from Stacy’s home pending adjudication, upon a finding that
remaining in Stacy’s home would be contrary to B.C.’s health,
safety, and welfare and would not be in B.C.’s best interests.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 310 Neb. 679The parties agree that Joshua is B.C.’s biological father and
had an established parental relationship with him. Id. Joshua
intervened in the juvenile proceedings in October 2019 and
alleged that with the exception of a then 1-year separation
from Stacy, Joshua had lived with B.C. and provided continu-
ous care and support for him. Joshua filed a motion requesting
that B.C. be placed with him immediately. Although the State
did not allege that Joshua was unfit to parent B.C., after a
hearing, the court denied Joshua’s motion for temporary place-
ment on the ground of unfitness. The finding was based on
concerns about Joshua’s hospitalization and rehabilitation from
Guillain-Barre syndrome just prior to the hearing and the juve-
nile court’s conclusion that a transition plan needed to be in
place before Joshua took custody of B.C. Joshua successfully
appealed this order.
In our main opinion, we concluded, inter alia, that Joshua
was deprived of due process when the court refused to recog-
nize his parental preference over the State to B.C.’s custody and
specifically by finding Joshua unfit without any formal allega-
tion that would have placed Joshua on notice that he would be
required to defend against an attempt by the State to prove he
had lost the presumption of parental preference. A.A. I, supra.
We remanded the cause to the juvenile court to develop a
transition plan into Joshua’s temporary physical custody after
establishing the most up-to-date information. Id.
Subsequent to our main opinion, Joshua moved for an award
of attorney fees, and we determined that the State was substan-
tially justified in commencing juvenile proceedings seeking to
adjudicate the child as endangered by Stacy and that attorney
fees were not warranted. See A.A. II, supra. A mandate issued
on April 13, 2021, ordering the juvenile court to enter judg-
ment in conformity with our main opinion.
Further Proceedings.
During his appeal, Joshua opposed requests to speak with
the Nebraska Department of Health and Human Services
(DHHS). According to emails sent by Joshua’s attorney in
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 310 Neb. 679November 2020, Joshua would not allow DHHS “to ply infor-
mation from him regarding his physical or mental condition,
beliefs, feelings, attitudes, practices, customs, personal history,
associations, affiliations, or relationships, or the conditions
of his home.” Joshua proposed that DHHS should deliver the
child with his personal items to Joshua and make arrangements
for his school attendance and dependent benefits through
Joshua’s Social Security disability. Joshua threatened to termi-
nate any discussion if DHHS personnel posed personal ques-
tions to him.
Our main opinion was filed on November 20, 2020. See
A.A. I, supra. On November 25, DHHS proposed a transition
plan into Joshua’s care which recommended “a short physi-
cal transition,” under which contact frequency and duration
is increased. The transition plan included (1) a walkthrough
of the residence of Joshua to ensure it is still in appropriate
condition; (2) reasonable access to B.C.; (3) the ability for
the assigned DHHS case manager to speak directly to Joshua
regarding B.C.’s condition and needs so long as B.C. remains a
state ward; (4) assurance that B.C.’s therapy will continue and
to identify any barriers to continuance of the service, if any;
and (5) B.C.’s continued enrollment in school. DHHS invited
Joshua to suggest sibling visitation.
Joshua, through his attorney, resisted the terms of DHHS’
plan, stating that “[t]here’s not going to be a ‘walkthrough’ or
any other of this stuff.”
On April 6, 2021, DHHS moved the juvenile court for an
order approving a change in placement for B.C. to the home
of one of his parents. Joshua immediately moved the juvenile
court to enter a dispositional order removing B.C. from the
care and custody of DHHS and committing him to the care and
custody of Joshua, without supervision or conditions, and to
thereafter terminate its jurisdiction over B.C.
Subsequent to the filing of our main opinion, the juvenile
court received the mandate from this court, which had been
delayed because of continued appellate proceedings. The juve-
nile court scheduled a disposition hearing; a child support
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 310 Neb. 679hearing on various motions, including a hearing on the motion
to award temporary legal custody; and a hearing on the motion
to establish a transition plan. The hearings were held on May
14, 2021, where the juvenile court received evidence and argu-
ments from the parties.
At the time of the hearing, B.C. was still a state ward and
continued to reside out of the homes of both Stacy and Joshua.
DHHS supported B.C.’s being placed with Joshua and, as
noted, in November 2020, had proposed a transition plan for
placement of B.C. with Joshua. However, Joshua continued
to oppose the DHHS plan and, as reflected in his affidavit in
the record, swore he had “no intention in taking part in the
development or implementation of a ‘plan’ for the ‘transition’
of [B.C.] into my custody.” As a result, without an appropriate
transition plan, the juvenile court found it was not empowered
to place custody with Joshua and still adhere to our mandate.
The court overruled Joshua’s motion for legal custody and
motion for placement.
Next, the juvenile court turned to whether B.C. should be
reunited with Stacy. The court found that Stacy had worked
diligently with DHHS to correct the issues that led to the
removal of B.C. The order noted that Stacy had been involved
with intensive family reunification services, parenting classes,
a psychological evaluation, individual counseling on an out­
patient basis, family support, and a parenting assessment.
Stacy was gainfully employed and maintained safe and stable
housing. Her supervision had been lowered with respect to her
probation as part of her criminal case. Significantly, Stacy had
monitored parenting time with B.C. for about 7 months with no
reported safety concerns and had overnight parenting time with
B.C. for about 3 months prior to the hearing.
The court found that B.C. was “no longer in need of [a]
foster care placement” and that it was in the best interests of
B.C. to return to the physical custody of Stacy, subject to sat-
isfaction of the terms of a transition plan. The transition plan,
similar to that which DHHS had proposed to Joshua, provided
that (1) DHHS will conduct a walkthrough of the residence of
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 310 Neb. 679the mother to ensure it is in appropriate condition prior to
placement; (2) the mother shall allow DHHS and the guardian
ad litem reasonable access to B.C.; (3) the assigned DHHS case
manager shall have the ability to speak directly to the mother
regarding B.C.’s condition and needs, so long as B.C. remains
a state ward; (4) the mother shall ensure that B.C.’s therapy
continues, so long as B.C.’s therapist recommends a continued
need for therapy services; (5) the mother shall ensure that B.C.
is enrolled in school; (6) the mother shall fully cooperate with
“random drop-ins” of her residence by DHHS or its designee;
and (7) a family therapy session shall occur between B.C, his
therapist, and the mother prior to placement back in the home
of the mother, so that B.C. is adequately prepared for the tran-
sition. The foster parents would be invited to participate in this
therapy session.
The juvenile court granted DHHS’ motion for a placement
change and ordered that the physical custody of B.C. be placed
with Stacy upon her completion of the conditions of the above
transition plan.
Joshua appeals.
ASSIGNMENT OF ERROR
As his sole assignment of error, Joshua claims that “[t]he
juvenile court’s order placing custody of B.C. with Stacy was
void because it exceeded the juvenile court’s authority under
the mandate.”
STANDARD OF REVIEW
[1] The construction of a mandate issued by an appellate
court presents a question of law, on which an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below. State v. Harris, 307 Neb. 237,
948 N.W.2d 736 (2020).
ANALYSIS
As his sole assignment of error, Joshua claims that “[t]he
juvenile court’s order placing custody of B.C. with Stacy was
void because it exceeded the juvenile court’s authority under
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 310 Neb. 679the mandate.” The order on appeal filed May 18, 2021, deter-
mined a number of issues, including overruling Joshua’s motion
for legal custody, sustaining DHHS’ motion for a placement
change, and placing physical custody with Stacy.
[2,3] As an initial matter, we iterate that the scope of our
appellate analysis is determined by the error assigned. That is,
our appellate review is guided and constrained by the assign-
ment of error as articulated by the party appealing. See Neb.
Ct. App. P. § 2-109(D) (rev. 2021). See, also, Neb. Rev. Stat.
§ 25-1919 (Reissue 2016); In re Interest of Mekhi S. et al.,
309 Neb. 529, 960 N.W.2d 732 (2021); Great Northern Ins.
Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958 N.W.2d
378 (2021). We have repeatedly refused to waive the require-
ment of § 2-109(D)(1) that an appellant set forth a separate
and concise statement of each error the party contends was
made by the trial court, through separately numbered and
paragraphed assignments of error contained in a separate
section of the brief, designated with an appropriate heading,
and located after the statement of the case and preceding
the propositions of law. Great Northern Ins. Co., supra. The
assignments of error section is one of the most critical sections
of an appellant’s or cross-appellant’s brief. Id. It gives the
opposing party notice of what alleged errors to respond to and
advises the appellate court of what allegations of error by the
trial court it has been called upon to address. Id. Designated
assignments of error are required not only by our court rules
but also by § 25-1919, which states that “[t]he brief of appel-
lant shall set out particularly each error asserted and intended
to be urged for the reversal, vacation, or modification of the
judgment, decree, or final order alleged to be erroneous . . . .”
Accordingly, we decline to take up additional claims beyond
that concerning “[t]he juvenile court’s order placing custody of
B.C. with Stacy . . . .”
[4,5] The focus of Joshua’s assignment of error is on place-
ment of B.C. with Stacy and the relationship of such placement
vis-a-vis our main opinion and mandate. Thus, we review sev-
eral principles of procedure following an appeal. A “remand”
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 310 Neb. 679is an appellate court’s order returning a proceeding to the
court from which the appeal originated for further action in
accordance with the remanding order. TransCanada Keystone
Pipeline v. Tanderup, 305 Neb. 493, 941 N.W.2d 145 (2020).
When a lower court is given specific instructions on remand,
it must comply with the specific instructions and has no dis-
cretion to deviate from the mandate. Id. But it is also true, as
we recognized in our main opinion, A.A. I, that the juvenile
court has retained its continuing jurisdiction over this juvenile
matter even during Joshua’s prior appeal. See In re Interest of
Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).
Referring to A.A. I, Joshua highlights that we reversed the
juvenile court’s order that denied Joshua’s motion for place-
ment and remanded the cause “with directions to grant Joshua
temporary physical placement after establishing, with the
most up-to-date information, an appropriate plan for B.C.’s
transition into Joshua’s temporary physical custody.” 307
Neb. at 851, 951 N.W.2d at 171. From this, Joshua maintains
that he is entitled to B.C.’s placement non plus ultra. We do
not agree.
[6] Contrary to Joshua’s argument and assignment of error,
nothing in our opinion or mandate was antithetical to reuni-
fication of B.C. with Stacy, nor did our previous disposition
undermine the juvenile court’s power to expeditiously proceed
with Stacy’s “rehabilitative plan and placement of the children
back in her care.” A.A. I, 307 Neb. at 860, 951 N.W.2d at 175.
The portion of our main opinion which Joshua asserts stripped
the juvenile court of power concerned temporary physical cus-
tody of B.C. with a parent as a preferred alternative to place-
ment with a nonparent. We explained that at the time of B.C.’s
removal, Stacy was the de facto custodial parent; and further,
the juvenile court had the power to require her cooperation
with orders of visitation and its reunification plan which could
return B.C. to her home. A.A. I, supra. We noted that temporary
physical custody with a noncustodial parent should not create
a “‘substantial and unnecessary hindrance to efforts of reuni-
fication’” with the custodial parent. Id. at 852, 951 N.W.2d at
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE INTEREST OF A.A. ET AL.
Cite as 310 Neb. 679171 (quoting In re Interest of Ethan M., 15 Neb. App. 148, 723
N.W.2d 363 (2006)).
In our main opinion, we explained that a juvenile court
may exercise its parens patriae responsibilities to “develop a
transition plan constituting a reasonable intrusion of limited
duration into the nonoffending parent’s rights to autonomy in
the care and custody of the child.” Id. at 850, 951 N.W.2d at
170. We explained that it would not violate due process for the
juvenile court to adjudicate custody rights between two par-
ents to require the nonoffending parent’s cooperation of goals
with reunification back into the home from where the child
was taken. Id. We emphasized that the juvenile court needed
to establish the most up-to-date information in developing an
appropriate plan for temporary placement. See A.A. I, supra.
As noted, the juvenile court always retained continuing
jurisdiction to adjudicate B.C., and if warranted by up-to-date
facts, it could proceed with a plan of reunifying B.C. with
Stacy, the only parent over whom the court had jurisdiction at
the time reunification was proposed. The fact that Joshua may
have been proceeding on a parallel track to acquire temporary
placement did not eclipse the potential for Stacy to acquire
placement. The mandate associated with our main opinion,
favorable to placement with Joshua, was not issued to the
exclusion of “goals of reunification back into the home from
where the child was taken.” Id. at 850, 951 N.W.2d at 170.
Accordingly, Joshua’s sole assignment of error in which he
claimed that placement of B.C. with Stacy exceeded the man-
date is without merit.
CONCLUSION
The juvenile court’s order placing B.C. with Stacy pursuant
to the terms of a transition plan were consistent with our opin-
ion and mandate in A.A. I., supra. We affirm.
Affirmed.