In re Interest of Cassandra B. & Moira B. ( 2015 )

Nebraska Advance Sheets
IN RE INTEREST OF CASSANDRA B. & MOIRA B. 619
Cite as 290 Neb. 619In re I nterest of Cassandra B. and Moira B.,
children under 18 years of age.
State of Nebraska, appellee, v.
Angel B., appellant.
___ N.W.2d ___
Filed April 3, 2015. No. S-14-708.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings. When the evidence is in conflict, however, an appellate court
may give weight to the fact that the lower court observed the witnesses and
accepted one version of the facts over the other.
2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, as in any
other appeal, it is the duty of an appellate court to determine whether it has juris-
diction over the matter before it.
3. Juvenile Courts: Final Orders: Appeal and Error. For an appellate court to
acquire jurisdiction of an appeal, there must be a final order entered by the court
from which the appeal is taken.
4. Final Orders: Appeal and Error. Among the three types of final orders which
may be reviewed on appeal is an order that affects a substantial right made during
a special proceeding.
5. Juvenile Courts: Appeal and Error. A proceeding before the juvenile court is a
special proceeding for appellate purposes.
6. Juvenile Courts: Parental Rights: Parent and Child: Time: Final Orders.
Whether a substantial right of a parent has been affected by an order in juvenile
court litigation is dependent upon both the object of the order and the length of
time over which the parent’s relationship with the juvenile may reasonably be
expected to be disturbed.
7. Constitutional Law: Parental Rights. Parents have a fundamental liberty inter-
est in directing the education of their children.
8. Parental Rights: Final Orders: Appeal and Error. Orders which temporarily
suspend a parent’s custody, visitation, or education rights for a brief period of
time do not affect a substantial right and are therefore not appealable.
9. Juvenile Courts: Final Orders: Constitutional Law: Parent and Child. The
substantial right of a parent in juvenile proceedings is a parent’s fundamental,
constitutional right to raise his or her child.
10. Juvenile Courts: Minors. The State has a right, derived from its parens patriae
interest, to protect the welfare of its resident children.
11. Juvenile Courts: Parental Rights. A juvenile court has the discretionary power
to prescribe a reasonable program for parental rehabilitation to correct the condi-
tions underlying the adjudication.
Appeal from the Separate Juvenile Court of Lancaster
County: Linda S. Porter, Judge. Affirmed.
Nebraska Advance Sheets
620 290 NEBRASKA REPORTS
John C. Ball, of Pollack & Ball, L.L.C., for appellant.
Joe Kelly, Lancaster County Attorney, and Lory A. Pasold
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
Angel B. is the mother of Cassandra B., born in 1998, and
Moira B., born in 2008. She appeals from an order of the
separate juvenile court of Lancaster County prohibiting her
from homeschooling Moira until further order of the court. We
conclude that the order was final and appealable. Finding no
error, we affirm.
FACTS
In May 2012, the State asked the juvenile court to place
Cassandra and Moira in the temporary custody of Nebraska’s
Department of Health and Human Services (DHHS) pursu-
ant to Neb. Rev. Stat. § 43-248 (Cum. Supp. 2012). The
request was supported by the affidavit of a representative of
the Lancaster County sheriff’s office describing an incident
that occurred at a home in rural Lancaster County, Nebraska,
on May 11, 2012. The juvenile court entered the requested
order, based upon its finding that Cassandra, who was then
13 years old, had been forced to sleep outside in a tent when
the temperature was 55 degrees. When Cassandra attempted to
reenter the house, she was forced back into the tent and her
uncle “zip tied” the tent shut. Cassandra escaped, and Angel
then turned on a water hose, which Cassandra’s uncle used to
spray Cassandra with water. Angel also gave the uncle a rope,
which he attempted to tie around Cassandra’s wrists. The court
found that these facts placed both Cassandra and Moira at risk
of harm.
Angel subsequently entered a no contest plea to an
amended petition alleging that both Cassandra and Moira
were children who came within the meaning of Neb. Rev.
Stat. § 43-247(3)(a) (Reissue 2008), and the children were
Nebraska Advance Sheets
IN RE INTEREST OF CASSANDRA B. & MOIRA B. 621
Cite as 290 Neb. 619adjudicated on August 1, 2012. The adjudication order
included a finding that Cassandra had “severe mental and
behavioral health needs” which required “immediate interven-
tion for the safety and well-being of both minor children.”
The order further found that “[o]n one or more occasion[s],”
Angel had “used inappropriate discipline when trying to han-
dle Cassandra[’s] extensive needs. Angel . . . needs assistance
in addressing the extensive needs of Cassandra . . . and learn-
ing appropriate discipline. The above situation places both of
the minor children at risk of harm.”
The court ordered that temporary legal and physical custody
of both children should remain with DHHS. Cassandra was
placed outside the home, but Moira was returned to the physi-
cal care of Angel and has remained there since. Cassandra now
resides with her paternal grandparents in another state. This
appeal pertains only to Moira.
The original disposition was on October 22, 2012. At that
time, the court adopted a case plan, which provided in relevant
part that Angel should not subject Moira to any form of physi-
cal discipline or restraint and that Angel would complete a full
psychological evaluation.
A review hearing was held on December 10, 2013. At that
hearing, DHHS requested that Angel be ordered to undergo an
updated psychological evaluation. This request was based on
concerns regarding Angel’s mental health, expressed by both
the DHHS family services caseworker assigned to the case
and Moira’s therapist. Evidence also showed that in September
and October 2013, Angel had locked Moira in her bedroom
as a form of discipline. The caseworker testified that in late
November or early December, Moira had hit and kicked a visi-
tation worker and was so uncontrollable that the police had to
be called. The caseworker also testified that Angel continued
to think that forcing Cassandra to stay alone in a tent in the
middle of the night had been an acceptable form of discipline.
The caseworker thought Angel was making very little progress
in therapy. She further reported that Angel was at times vola-
tile in her interactions with her and in November 2013, had
yelled at the caseworker for an extended period of time during
a home visit.
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622 290 NEBRASKA REPORTS
In its order entered after the hearing, the court found, inter
alia, that Angel was not cooperating with DHHS and that she
had failed to take responsibility for the improper discipline
of Cassandra. The court ordered that Moira should remain
physically placed with Angel, but noted that Angel’s “care of
Moira, including her emotional well being, should be carefully
monitored by [DHHS] pending further hearing in this case.”
The court also ordered both Angel and Moira to participate in
individual therapy.
Another review hearing was held on June 30, 2014. By that
time, Cassandra was residing with her grandparents. The same
caseworker testified that Moira had attended kindergarten at a
Catholic school during the 2013-14 school year and had done
well. She testified that Angel expressed no complaints about
the curriculum at the school. Moira’s behavior had improved,
and her therapist was recommending less frequent therapy.
The caseworker also testified that there had been no recent
concerns regarding parenting or safety during random drop-in
visits at Angel’s residence.
The caseworker testified in June 2014 that DHHS had
concerns about Angel’s desire to homeschool Moira. School
officials informed the caseworker that Moira was behind aca-
demically when she started kindergarten but was catching up,
and the officials were concerned that she might fall behind
again if homeschooled. The peer interaction at school had also
helped Moira improve her ability to share and communicate
with others. DHHS was also concerned about Angel’s ability
to homeschool Moira, because Angel worked full time, and
when asked to provide information about a proposed schedule
and curriculum, she became defensive and did not provide the
information. Further, DHHS was concerned that Angel wished
to homeschool Moira in order to limit the adults Moira could
communicate with or confide in. The caseworker testified
that when Cassandra was in Angel’s custody, “[s]he would go
periods of time being homeschooled and then she would be in
traditional school, and then she’d go back to homeschooling,
so it was very inconsistent.” The caseworker expressed her
opinion that academically and socially, it was in Moira’s best
Nebraska Advance Sheets
IN RE INTEREST OF CASSANDRA B. & MOIRA B. 623
Cite as 290 Neb. 619interests to remain in a traditional school setting, rather than a
homeschool environment controlled by Angel.
In an order issued on July 9, 2014, the court found that
Angel was not cooperating with DHHS and had not taken
responsibility for the improper discipline of Cassandra. It also
found that Angel had made “minimal progress” to alleviate the
causes of the adjudication. It ordered both Angel and Moira
to continue in individual therapy. In addition, it ordered that
Moira “shall continue to be enrolled in an educational program
as arranged or approved by [DHHS] and shall not be home
schooled at this time, pending further order of this Court.” In
the same order, it set the next review hearing in the case for
January 26, 2015.
Angel appealed from this order, alleging it improperly
infringed on her right to educate Moira as she chose. The
Nebraska Court of Appeals issued an order to show cause as
to why the case should not be dismissed for lack of jurisdic-
tion. It questioned both whether the prohibition against home-
schooling was a new order in the case and, if it was, whether
it was an order affecting a substantial right in a special pro-
ceeding that was subject to appeal. After finding that cause
had been shown, the Court of Appeals ordered the parties to
address the jurisdictional issue in their briefs. We subsequently
moved the case to our docket on our own motion pursuant to
our authority to regulate the caseloads of the appellate courts
of this state.1
ASSIGNMENTS OF ERROR
Angel assigns that the juvenile court erred in (1) prohibiting
her from homeschooling Moira and (2) ordering that Moira
continue to be enrolled in an educational program arranged or
approved by DHHS.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. When the evidence is in conflict,
1
Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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624 290 NEBRASKA REPORTS
however, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of
the facts over the other.2
ANALYSIS
Jurisdiction
[2-5] The order from which this appeal was taken was the
first time that the juvenile court had specifically prohibited
Angel from homeschooling Moira. The State contends that
it nevertheless was not a final order for purposes of appeal.
In a juvenile case, as in any other appeal, it is the duty of an
appellate court to determine whether it has jurisdiction over the
matter before it.3 For an appellate court to acquire jurisdiction
of an appeal, there must be a final order entered by the court
from which the appeal is taken.4 Among the three types of
final orders which may be reviewed on appeal is an order that
affects a substantial right made during a special proceeding.5 A
proceeding before the juvenile court is a special proceeding for
appellate purposes.6 Therefore, we must consider whether the
order of the juvenile court which prohibited Angel from home-
schooling Moira affected a substantial right.
[6,7] Whether a substantial right of a parent has been
affected by an order in juvenile court litigation is dependent
upon both the object of the order and the length of time over
which the parent’s relationship with the juvenile may reason-
ably be expected to be disturbed.7 The U.S. Supreme Court
has clearly established that parents have a fundamental liberty
interest in directing the education of their children.8 Thus, there
2
In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014); In re
Interest of Edward B., 285 Neb. 556, 827 N.W.2d 805 (2013).
3
In re Interest of Danaisha W. et al., 287 Neb. 27, 840 N.W.2d 533 (2013).
4
Id.5
Id.6
Id.7
Id.8
See, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49(2000); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042(1923).
Nebraska Advance Sheets
IN RE INTEREST OF CASSANDRA B. & MOIRA B. 625
Cite as 290 Neb. 619can be no doubt that the object of the July 9, 2014, order is of
sufficient importance to affect a substantial right.
[8] The issue, then, is the length of time over which Angel’s
ability to homeschool Moira may reasonably be expected to
be disturbed. Orders which temporarily suspend a parent’s
custody, visitation, or education rights for a brief period of
time do not affect a substantial right and are therefore not
appealable.9 For example, in In re Interest of Danaisha W. et
al.,10 we held that an order imposing restrictions on a parent’s
visitation rights was temporary in nature and therefore did not
affect a substantial right so as to be appealable when it was in
effect only until a hearing on a motion to terminate parental
rights, which was scheduled for approximately 5 weeks later.
Similarly, in In re Guardianship of Sophia M.,11 we held an
order which denied a parent visitation rights pending a guard-
ianship hearing 3 weeks later was not of sufficient duration to
affect a substantial right.
The Court of Appeals recently relied in part upon this prec-
edent in In re Interest of Nathaniel P.12 In that case, a juvenile
court entered an order which “‘suspended’” the mother’s right
to direct the child’s education “‘at least on a temporary basis
at this time.’”13 Although the next scheduled review hearing
was almost 6 months later, the Court of Appeals construed the
order as providing a means for the parent to regain her educa-
tion rights before the review hearing by participating in reha-
bilitative services, and it thus concluded that it was not a final
order, because it was “expected to disturb [the parent’s] educa-
tion rights for a relatively short period of time.”14 It therefore
dismissed the appeal, and neither party sought further review
by this court.
9
See In re Interest of Nathaniel P., 22 Neb. App. 46, 846 N.W.2d 681(2014).
10
In re Interest of Danaisha W. et al., supra note 3.
11
In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006).
12
In re Interest of Nathaniel P., supra note 9.
13
Id. at 48, 49, 846 N.W.2d at 683, 684 (emphasis omitted).
14
Id. at 52, 846 N.W.2d at 686.
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There is tension between the reasoning of In re Interest of
Nathaniel P. and our holding in In re Interest of Karlie D.,15
in which we determined that the ability of a juvenile court
to change conditions of an adjudicated juvenile’s custody or
care “has no bearing on whether the court’s order is final and
appealable.” And neither the language of the order in this case
nor the context in which it was entered denotes a temporary
interruption of Angel’s right to direct Moira’s education. The
juvenile court’s July 9, 2014, order provided that Moira “shall
not be home schooled at this time, pending further order of
this Court.” The order gave no indication that the court would
revisit this issue prior to the next review hearing scheduled for
January 26, 2015, approximately 6 months in the future. This
is a considerably longer duration of time than the 5 weeks
and 3 weeks we characterized as temporary in In re Interest
of Danaisha W. et al. and In re Guardianship of Sophia M.
And because juvenile courts are required to review the cases
of juveniles adjudicated under § 43-247(3) every 6 months,16
virtually no order would have a longer duration than that.
The order challenged in this appeal encompassed at least the
first semester of Moira’s school year and, potentially, an even
longer period. We conclude that it was not a temporary order,
but, rather, one which affected the parent’s substantial right to
direct the education of her child. It was therefore a final order,
which we have jurisdiction to review.
Merits
[9,10] The substantial right of a parent in juvenile proceed-
ings is a parent’s fundamental, constitutional right to raise
his or her child.17 As we have noted above, this includes the
parents’ fundamental liberty interest in directing the education
of their children.18 But the State also has a right, derived from
its parens patriae interest, to protect the welfare of its resident
15
In re Interest of Karlie D., 283 Neb. 581, 587, 811 N.W.2d 214, 221
(2012).
16
See Neb. Rev. Stat. § 43-278 (Cum. Supp. 2014).
17
In re Interest of Karlie D., supra note 15.
18
See, Troxel v. Granville, supra note 8; Meyer v. Nebraska, supra note 8.
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IN RE INTEREST OF CASSANDRA B. & MOIRA B. 627
Cite as 290 Neb. 619children.19 In a juvenile abuse and neglect case such as this, a
court must balance these sometimes competing interests so as
to achieve a result that is in the best interests of the child. In
other words, a parent’s right to determine the educational needs
of an adjudicated child is not absolute.
[11] When a court’s order of disposition permits an adju-
dicated juvenile to remain in the parental home, a court has
statutory authority to impose certain conditions, which may
include requiring the parent to “[e]liminate the specified con-
ditions constituting or contributing to the problems which led
to juvenile court action,” to “[t]ake proper steps to [e]nsure
the juvenile’s regular school attendance,” and to “[c]ease and
desist from specified conduct and practices which are injurious
to the welfare of the juvenile.”20 Such terms and conditions
“shall relate to the acts or omissions of the juvenile, the par-
ent, or other person responsible for the care of the juvenile
which constituted or contributed to the problems which led to
the juvenile court action in such case.”21 Thus, a juvenile court
has the discretionary power to prescribe a reasonable program
for parental rehabilitation to correct the conditions underlying
the adjudication.22
Angel argues that “the adjudicated issue in this matter has
nothing to do with Moira’s educational needs” and in fact “does
not involve Moira specifically at all.”23 That is not accurate. In
adjudicating both children, the juvenile court specifically found
that Angel’s inappropriate discipline of Cassandra “places both
of the minor children at risk of harm.” And, as noted, the
record reflects that even after both children were adjudicated,
DHHS received a report that Angel had disciplined Moira inap-
propriately by locking her in her bedroom.
19
See, In re Interest of Karlie D., supra note 15; In re Interest of Anthony
G., 255 Neb. 442, 586 N.W.2d 427 (1998); In re Interest of R.G., 238 Neb.
405, 470 N.W.2d 780 (1991), disapproved on other grounds, O’Connor v.
Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998).
20
Neb. Rev. Stat. § 43-288(1), (4), and (5) (Reissue 2008).
21
§ 43-288.
22
See In re Interest of C.D.C., 235 Neb. 496, 455 N.W.2d 801 (1990).
23
Brief for appellant at 10.
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628 290 NEBRASKA REPORTS
The juvenile court permitted Angel to retain physical cus-
tody of Moira but placed legal custody of the child with
DHHS. Under the Nebraska Juvenile Code, “[l]egal custody”
has the same meaning as under the Parenting Act, i.e., “the
authority and responsibility for making fundamental decisions
regarding the child’s welfare, including choices regarding edu-
cation and health.”24 Thus, the juvenile court was entitled to
give weight to the testimony of the DHHS caseworker that
homeschooling by Angel was not in Moira’s best interests.
And this was the only evidence before the court on the issue
of Moira’s educational needs. Although Angel was present with
her counsel at the hearings at which the caseworker testified,
she did not testify or offer any evidence regarding her reasons
for wanting to homeschool Moira or the specific manner in
which she planned to do so.
In explaining its reasoning from the bench, the juvenile
court stated that it was not in Moira’s best interests to be home-
schooled because of the adjudicated findings of inappropriate
discipline by Angel “for which she continues to maintain a
complete lack of understanding as to how inappropriate that
was and . . . that that was a problematic way to deal with a
child.” The court stated its view that
there’s plenty of evidence before the Court that [Angel’s]
decision making with regard to parenting and discipline
issues still places Moira at risk and I don’t think it’s in
the child’s best interest to have no other contacts with
individuals and to have her mother be in charge of her
educational setting as well. And I think it’s not a huge
inference for the Court to make that this is designed,
in part, to isolate the child from others that she may be
exposed to and talk to and I’m concerned about that. . . .
I’m not dictating which . . . educational setting she needs
to be in, but I am going to preclude her from being home-
schooled at this point in time because I don’t find that to
be in her best interest.
Based upon our de novo review of the record, we reach the
same conclusion. Cassandra and Moira were adjudicated on
24
See Neb. Rev. Stat. §§ 43-245(13) and 43-2922(13) (Cum. Supp. 2014).
Nebraska Advance Sheets
IN RE INTEREST OF CASSANDRA B. & MOIRA B. 629
Cite as 290 Neb. 619the basis of a finding that Angel’s inappropriate discipline of
Cassandra placed both children at risk of harm. There is some
indication in the record that this discipline was intended as
punishment for Cassandra’s “back-talking and not doing her
homework.” Following adjudication, there was a subsequent
incident of inappropriate discipline directed at Moira which
prompted the juvenile court to specifically order that Angel
“shall not lock Moira . . . in her room at any time.” Given
the court’s finding that Angel had made “minimal progress
. . . to alleviate the causes of the Court’s adjudication,” to
which no exception was taken on appeal, and the recommen-
dation of DHHS against homeschooling, the juvenile court
was entirely justified in concluding that Moira’s best interests
would not be served by an educational setting which would
place her under Angel’s exclusive control with no opportunity
for regular interaction with other adults interested in her wel-
fare. The court’s prohibition of homeschooling was directly
related to the parental conduct which resulted in adjudica-
tion, and the court properly exercised its discretion to prohibit
homeschooling as a part of a rehabilitation program to address
such conduct.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
separate juvenile court.
Affirmed.