In re Interest of Octavio B. ( 2015 )

Nebraska Advance Sheets
IN RE INTEREST OF OCTAVIO B. ET AL. 589
Cite as 290 Neb. 589In re I nterest ofOctavio B. et al.,
children under 18 years of age.
State of Nebraska, appellee, v.
Melissa R., appellant.
___ N.W.2d ___
Filed April 3, 2015. Nos. S-14-484 through S-14-489.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
2. 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.
3. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, as in any
other appeal, before reaching the legal issues presented for review, it is the duty
of an appellate court to determine whether it has jurisdiction over the matter
before it.
4. Jurisdiction: 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.
5. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. Juvenile
court proceedings are special proceedings under Neb. Rev. Stat. § 25-1902(Reissue 2008), and an order in a juvenile special proceeding is final and appeal-
able if it affects a parent’s substantial right to raise his or her child.
6. Final Orders: Words and Phrases. A substantial right is an essential legal right,
not a mere technical right.
7. 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.
8. Juvenile Courts: Judgments: Parental Rights. A review order in a juvenile
case does not affect a parent’s substantial right if the court adopts a case plan or
permanency plan that is almost identical to the plan that the court adopted in a
previous disposition or review order.
9. Juvenile Courts: Judgments: Appeal and Error. A dispositional order which
merely continues a previous determination is not an appealable order.
10. Judgments: Parental Rights: Appeal and Error. An order that adopts a case
plan with a material change in the conditions for reunification with a parent’s
child is a crucial step in proceedings that could possibly lead to the termination
of parental rights; such an order affects a parent’s substantial right in a special
proceeding and is appealable.
11. Juvenile Courts: Parental Rights. The foremost purpose and objective of the
Nebraska Juvenile Code is the protection of a juvenile’s best interests, with
Nebraska Advance Sheets
590 290 NEBRASKA REPORTS
preservation of the juvenile’s familial relationship with his or her parents where
the continuation of such parental relationship is proper under the law. The goal of
juvenile proceedings is not to punish parents, but to protect children and promote
their best interests.
12. Juvenile Courts: Jurisdiction: Child Custody. Once a child has been adju-
dicated under Neb. Rev. Stat. § 43-247(3) (Reissue 2008), the juvenile court
ultimately decides where a child should be placed. Juvenile courts are accorded
broad discretion in determining the placement of an adjudicated child and to
serve that child’s best interests.
13. Juvenile Courts: Minors: Proof. The State has the burden of proving that a case
plan is in the child’s best interests.
14. Parental Rights. Children cannot, and should not, be suspended in foster care or
be made to await uncertain parental maturity.
Appeals from the County Court for Scotts Bluff County:
K risten D. Mickey, Judge. Affirmed.
Bernard J. Straetker, Scotts Bluff County Public Defender,
for appellant.
Dave Eubanks, Scotts Bluff County Attorney, and Kelli L.
Ceraolo for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
In each of these consolidated juvenile appeals, the mother
presents two issues. First, did changing the primary perma-
nency objective from reunification to adoption affect the moth-
er’s substantial right? Because the juvenile court’s actions
effectively ended services directed toward reunification, we
conclude that it did. Thus, the orders were final and appeal-
able. Second, was changing the permanency objective in the
children’s best interests? The evidence showed that it was.
Accordingly, we affirm.
BACKGROUND
Parents and Children
Melissa R. is the mother of the six minor children involved
in these juvenile proceedings. The oldest child was born in
1999, and the youngest child was born in 2011. The fathers
Nebraska Advance Sheets
IN RE INTEREST OF OCTAVIO B. ET AL. 591
Cite as 290 Neb. 589of the children are not parties to these appeals and will not be
discussed further.
P rior P rocedural History
In March 2013, the State filed a petition seeking to adju-
dicate the children under Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008). The petition alleged that Melissa failed to
provide adequate supervision. Melissa was in jail at the time.
On that same day, the county court, sitting as a juvenile court,
entered an order removing the children from the home and
placing them in the custody of the Nebraska Department of
Health and Human Services (DHHS). The State later filed
a second amended petition, alleging that the children lacked
proper parental care through no fault of Melissa. In May,
the court adjudicated the children. Since the time of the
dispositional hearing in July, the children have remained in
DHHS’ custody, and DHHS’ case plans have been geared
toward reunification.
The juvenile court’s first review hearing appearing in our
record occurred in October 2013. At that time, Melissa was still
incarcerated but had been placed on house arrest since early
September. She was working full time and having supervised
visitations with the children in her mother’s home. The court
report noted that poor progress was being made to alleviate
the causes of out-of-home placement. In an October 1 order,
the court directed the parties to comply with a September 24
case plan. The goal of the case plan was for Melissa to be able
to appropriately care for her children and to provide a stable
home free of domestic violence and illegal drugs in order to
meet the emotional, psychological, and developmental needs of
the children. The case plan set forth a number of strategies to
assist Melissa in reaching the goal.
In January 2014, the juvenile court held another review
hearing. Melissa testified she had been attending “NA,” but
that she had not started a relapse group prevention class
because the class was full. Melissa admitted that because
she was upset and emotional, she canceled a visit with the
children the night before the hearing. During a recess in the
hearing, she submitted to a urinalysis—which tested positive
Nebraska Advance Sheets
592 290 NEBRASKA REPORTS
for methamphetamine. The court adopted DHHS’ January 7
court report and case plan. The report stated that fair progress
was being made to alleviate the causes of out-of-home place-
ment. The plan contained the same goal and strategies identi-
fied in the September 2013 case plan. The court additionally
ordered random drug testing and a new psychological evalu-
ation and parenting assessment by Dr. John Meidlinger. The
court ordered Melissa to follow the recommendations of the
substance abuse evaluation, the psychological evaluation, and
the parenting assessment.
P roceedings Leading
to I nstant A ppeals
On April 15, 2014, the juvenile court conducted a review
and permanency hearing. The family’s children and family
serv­ices specialist testified. From his testimony, we glean sev-
eral pertinent facts:
• The children had been in out-of-home placements for 13
months.
• Since the last review hearing, Melissa had two visits with
two of her sons but she had not participated in visitation with
her other children.
• During a team meeting the previous month, Melissa stated
that she was not “doing what she was supposed to because
she was mad.”
• Melissa was not complying with family support services or
random drug testing.
• The specialist was not aware of any employment on
Melissa’s part.
• Melissa had expressed interest in a residential treatment
program for mothers with children, but there was no guaran-
tee that she would be accepted into the program.
The specialist recommended that the permanency plan be
changed to adoption for all of the children, with a concurrent
goal of reunification with the father for the oldest three chil-
dren and a concurrent goal of guardianship for the younger
three children. The specialist based his recommendation par-
tially on Melissa’s lack of substantial progress with the case
plan and also on Meidlinger’s report.
Nebraska Advance Sheets
IN RE INTEREST OF OCTAVIO B. ET AL. 593
Cite as 290 Neb. 589The juvenile court also received Meidlinger’s psychological
screening report into evidence. The report made the following
recommendation:
Any decisions made in regarding [sic] to case plan and
disposition should be made with the understanding that
Melissa has severe underlying characterological issues
and is at high risk to return to previous problems in the
future. Any decision to return custody of her children to
her should be preceded by [an] extended period of time
in which she demonstrate[s] stability in regard to work,
relationships, finances and contact with her children.
Melissa testified regarding her compliance with the case
plan. She claimed that she was consistent with her visitation
from October 2013 to January 2014. Melissa explained that she
did not participate in visits during the second half of January
and the month of February, aside from two visits, because she
“was very upset.” She also claimed that for the 6 weeks prior
to the review hearing, the only days that she did not see any of
her children were Mondays and Fridays. According to Melissa’s
testimony, she had steady employment from September 2013
until January 16, 2014, when she traveled to Colorado to be
with a son who was hospitalized there. That absence, she testi-
fied, caused the loss of her job. Melissa admitted that she was
not capable of parenting all six children without help, stating “I
can’t even take care of myself right now, so how could I take
care of anybody else?”
The juvenile court agreed that the permanency goals for the
children should be changed as recommended by DHHS. The
court orally stated that it adopted “[t]he balance of those rec-
ommendations not otherwise in conflict with those permanency
goals.” Counsel for the State inquired whether DHHS was
required to continue to provide services to Melissa. The court
responded, “Only as is required under [an April 9, 2014,] case
plan that’s identified on pages 28 through 32 that are — that is
consistent with the permanency goals.”
The pages of the case plan referred to by the juvenile
court contained a number of goals and strategies. The case
plan set forth the following goals for Melissa: (1) continue to
work with a family support worker to improve her parenting
Nebraska Advance Sheets
594 290 NEBRASKA REPORTS
skills, (2) attend individual mental health counseling with an
approved mental health provider, (3) take her prescribed medi-
cation and work with her physician with regard to medication
management for her mental health needs, (4) have supervised
parenting time with her children as arranged by DHHS, (5)
participate in random drug screening, and (6) follow all of the
strategies outlined in the case plan. The case plan listed the
following strategies: (1) have monthly contact with the DHHS
case manager, (2) participate in a parenting assessment and
follow any recommendations, (3) participate in a substance
abuse evaluation and follow any recommendations, (4) par-
ticipate in individual mental health counseling, (5) participate
in individual substance abuse counseling, (6) participle in a
relapse prevention group as recommended in her substance
abuse evaluation, (7) regularly attend an “AA/NA” program,
(8) participate in family therapy with her children when it is
recommended by the children’s therapists, (9) secure a safe
and stable home, and (10) maintain stable employment. The
majority of these strategies are the same as those contained in
the previous case plan.
Juvenile Court’s Disposition
In an April 15, 2014, order entered in each case, the juvenile
court formally changed the permanency goal for the children.
The court changed the primary permanency goal to adoption
for all children, with a concurrent plan of reunification with
the father for the three oldest children and a concurrent plan of
guardianship for the three youngest children. The court found
that reasonable efforts had been made to reach the primary
goal of reunification, but that those efforts were not successful.
The court adopted the provisions of the April 9 case plan and
ordered all parties to comply with the case plan’s terms, includ-
ing any amendments ordered by the court.
Melissa timely appealed. The Nebraska Court of Appeals
originally summarily dismissed the appeals, stating that the
order entered in each case did not affect a substantial right.
Melissa filed a motion for rehearing, which the Court of
Appeals sustained. The Court of Appeals reserved the issue of
jurisdiction and directed the parties to address the jurisdictional
Nebraska Advance Sheets
IN RE INTEREST OF OCTAVIO B. ET AL. 595
Cite as 290 Neb. 589issue in their briefs. We subsequently moved the cases to our
docket under our statutory authority to regulate the caseloads
of the appellate courts of this state.1
ASSIGNMENT OF ERROR
Melissa assigns that the juvenile court erred in finding
that the State presented sufficient evidence to establish that
the change in permanency objective was in the children’s
best interests.
STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law.2
[2] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings.3 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.4
ANALYSIS
Jurisdiction
[3-5] We must first determine whether we have jurisdic-
tion, which turns upon whether the orders changing the pri-
mary permanency objective affected a substantial right. In
a juvenile case, as in any other appeal, before reaching the
legal issues presented for review, it is the duty of an appellate
court to determine whether it has jurisdiction over the matter
before it.5 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.6 Juvenile court proceedings are
1
Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
2
In re Interest of Mya C. & Sunday C., 286 Neb. 1008, 840 N.W.2d 493(2013).
3
In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014).
4
Id.5
In re Interest of Danaisha W. et al., 287 Neb. 27, 840 N.W.2d 533 (2013).
6
Id.Nebraska Advance Sheets
596 290 NEBRASKA REPORTS
special proceedings under Neb. Rev. Stat. § 25-1902 (Reissue
2008), and an order in a juvenile special proceeding is final
and appealable if it affects a parent’s substantial right to raise
his or her child.7 Thus, if changing the permanency objective
affected Melissa’s substantial right to raise her children, the
orders were final and appealable. But if the change did not
affect a substantial right, we lack jurisdiction and must dismiss
the appeals.
[6-9] The governing principles are easily stated. A substan-
tial right is an essential legal right, not a mere technical right.8
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 par-
ent’s relationship with the juvenile may reasonably be expected
to be disturbed.9 A review order does not affect a parent’s sub-
stantial right if the court adopts a case plan or permanency plan
that is almost identical to the plan that the court adopted in a
previous disposition or review order.10 Thus, a dispositional
order which merely continues a previous determination is not
an appealable order.11
But because the inquiry is so fact specific, applying these
principles can easily lead to different results from case to case.
On at least two occasions, the Court of Appeals has considered
the appealability of a juvenile court order changing the per-
manency goal from reunification to adoption. As those cases
illustrate, the resolution is dependent on the facts. This makes
it impractical to declare a uniform rule regarding the finality of
an order changing the permanency goal.
In In re Interest of Tayla R.,12 the Court of Appeals deter-
mined that an order in one of the consolidated appeals of the
case which changed the permanency plan from reunification
7
In re Interest of Mya C. & Sunday C., supra note 2.
8
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
9
In re Interest of Danaisha W. et al., supra note 5.
10
In re Interest of Mya C. & Sunday C., supra note 2.
11
In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999).
12
In re Interest of Tayla R., 17 Neb. App. 595, 767 N.W.2d 127 (2009).
Nebraska Advance Sheets
IN RE INTEREST OF OCTAVIO B. ET AL. 597
Cite as 290 Neb. 589to adoption was not appealable because it did not affect the
mother’s substantial rights. The court observed that the terms
of the new order had the effect of continuing reasonable efforts
to preserve the family. The court reasoned that the new order
contained the same services as the previous order, that it did
not change the mother’s visitation or status, and that it implic-
itly provided the mother an opportunity for reunification by
complying with the terms of the rehabilitation plan.13
A different panel found an order modifying a permanency
goal from reunification to guardianship/adoption to be appeal-
able in In re Interest of Diana M. et al.14 In that case, the
order modifying the permanency plan objective was coupled
with an order ceasing further reasonable efforts to bring about
reunification.15 The court reasoned that because the order
affected the mother’s right to reunification with her children,
it affected a substantial right and was appealable.16
In both of those cases, the Court of Appeals’ jurisdictional
analysis was consistent with our precedent. In In re Interest
of Sarah K.,17 we scrutinized orders entered 2 months apart.
The first order approved a case plan which identified reuni-
fication as the goal and provided for long-term foster care
for the child and supervised visitation by the parents. The
second order adopted the State’s permanency plan of long-
term foster care transitioning to independent living which
provided for the possibility of reunification. On appeal, we
stated that the terms of the second order “merely repeat the
essential terms” of the first order and that “[t]he parents were
not disadvantaged by the juvenile court’s [second] order
. . . , nor were their substantial rights changed or affected
thereby.”18 We further stated that the second order “effects no
13
Id.14
In re Interest of Diana M. et al., 20 Neb. App. 472, 825 N.W.2d 811(2013).
15
Id.16
See id.17
In re Interest of Sarah K., supra note 11.
18
Id. at 58, 601 N.W.2d at 785.
Nebraska Advance Sheets
598 290 NEBRASKA REPORTS
change in the parents’ status or the plan to which the parents
and [child] were previously subject.”19 Thus, we concluded
that the second order was not an appealable order. Similarly,
in In re Guardianship of Rebecca B. et al.,20 we dismissed
one of the consolidated appeals after concluding that a later
order merely continued the terms of the previous disposi-
tional order and, thus, did not affect a substantial right of
the mother.
In the instant case, the thrust and parry of arguments ulti-
mately favor Melissa. The State contends that the April 2014
orders did not affect a substantial right because Melissa was
still provided with an opportunity to comply with the case plan
adopted by the juvenile court. But Melissa points out that the
court’s change of the permanency objective to adoption was
accompanied by an order relieving DHHS of any obligation to
provide her with services. In response, the State suggests that
although DHHS was no longer required to pay for services not
related to the new permanency objective, Melissa could still
complete the case plan and move toward reunification. We
agree with Melissa.
The juvenile court’s April 2014 order entered in each case
was not merely a continuation of previous orders. Although it
contained many of the same goals and strategies, it changed
the permanency objective to adoption for all children and did
not provide for reunification with Melissa as a concurrent goal.
Because the order contained many of the same goals and strate-
gies, the order would suggest that the situation here resembles
that presented in In re Interest of Tayla R.21 But the juvenile
court’s statements from the bench essentially eviscerated the
opportunity to achieve reunification. The court stated that
DHHS was required to continue to provide services to Melissa
only as consistent with the new permanency goals. Because
reunification with Melissa was no longer a goal, it appears that
19
Id. at 59, 601 N.W.2d at 785.
20
In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289(2000).
21
In re Interest of Tayla R., supra note 12.
Nebraska Advance Sheets
IN RE INTEREST OF OCTAVIO B. ET AL. 599
Cite as 290 Neb. 589services aimed at reunification were effectively ended. Thus,
Melissa was disadvantaged by the orders.
[10] An order that adopts a case plan with a material change
in the conditions for reunification with a parent’s child is a
crucial step in proceedings that could possibly lead to the
termination of parental rights; such an order affects a parent’s
substantial right in a special proceeding and is appealable.22 We
conclude that the order entered in each case affects Melissa’s
substantial right and is a final, appealable order.
This case illustrates the importance of ensuring that the
record shows the full import of a court’s ruling. The written
orders entered in each case stated only that the juvenile court
adopted DHHS’ case plan and that the parties were to comply
with its terms, including any court-ordered amendments. The
orders did not reflect the court’s statement from the bench
relieving DHHS from providing services to Melissa that were
inconsistent with the new permanency goals. Here, we are
aware of the real effect of the court’s ruling through a ques-
tion from DHHS’ counsel and the court’s response, which were
contained in the bill of exceptions. Had this colloquy not been
included in the record, our conclusion regarding appealability
would likely have been different.
Best Interests
Melissa argues that the State presented insufficient evidence
to prove that changing the permanency objective was in the
children’s best interests. We disagree.
[11-13] The foremost purpose and objective of the Nebraska
Juvenile Code is the protection of a juvenile’s best interests,
with preservation of the juvenile’s familial relationship with
his or her parents where the continuation of such parental
relationship is proper under the law. The goal of juvenile
proceedings is not to punish parents, but to protect children
and promote their best interests.23 Once a child has been
adjudicated under § 43-247(3), the juvenile court ultimately
decides where a child should be placed. Juvenile courts are
22
See In re Interest of Mya C. & Sunday C., supra note 2.
23
In re Interest of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (2014).
Nebraska Advance Sheets
600 290 NEBRASKA REPORTS
accorded broad discretion in determining the placement of
an adjudicated child and to serve that child’s best interests.24
The State has the burden of proving that a case plan is in the
child’s best interests.25
The evidence demonstrated that Melissa has not made suf-
ficient progress toward the goal of reunification. The spe-
cialist testified that Melissa’s progress began when he took
over the family’s case in March 2014, stating “she wasn’t
doing anything she was supposed to be doing until I showed
up this last month or the month of March until now.” And
although Melissa had arranged mental health counseling, she
had already missed three appointments. For a period of time,
Melissa did not participate in visitations with her children
because she was upset.
Melissa admitted during the April 2014 hearing that she
was not capable of parenting her children on her own at that
time. She had never been able to provide financially for her-
self and her children. And Melissa’s mother had done most of
the parenting of the children for the past 7 or 8 years. Further,
Meidlinger’s report recommended that “[a]ny decision to return
custody of [Melissa’s] children to her should be preceded by
[an] extended period of time in which she demonstrate[s] sta-
bility in regard to work, relationships, finances and contact
with her children.”
[14] Children cannot, and should not, be suspended in foster
care or be made to await uncertain parental maturity.26 At the
time of the April 2014 hearing, the children had been in out-of-
home placements for 13 months. The evidence established that
Melissa had made little progress toward reunification with her
children, and an expert recommended that there be an extended
period of time of stability in Melissa’s life before custody of
the children be returned to her. Given this evidence, it was in
the children’s best interests to change the primary permanency
objective from reunification with Melissa.
24
In re Interest of Karlie D., supra note 8.
25
In re Interest of Diana M. et al., supra note 14.
26
In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).
Nebraska Advance Sheets
STATE v. LEE 601
Cite as 290 Neb. 601CONCLUSION
Because the juvenile court’s orders affected Melissa’s sub-
stantial right to raise her children, they were final and appeal-
able. Upon our de novo review, we find that the evidence
supports the juvenile court’s order changing the primary per-
manency objective from reunification with Melissa to adoption,
with a concurrent plan of reunification with the father for the
three oldest children and a concurrent plan of guardianship for
the three youngest children. We therefore affirm the juvenile
court’s order in each case.
Affirmed.
State of Nebraska, appellee, v.
Donald M. Lee, appellant.
___ N.W.2d ___
Filed April 3, 2015. No. S-14-537.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Postconviction: Pleas: Waiver: Effectiveness of Counsel. Normally, a volun-
tary guilty plea waives all defenses to a criminal charge. However, in a postcon-
viction proceeding brought by a defendant convicted because of a guilty plea or a
plea of no contest, a court will consider an allegation that the plea was the result
of ineffective assistance of counsel.
3. Evidence: Appeal and Error. An appellate court does not resolve conflicts
in the evidence, pass on the credibility of witnesses, evaluate explanations,
or reweigh the evidence presented, which are within a fact finder’s province
for disposition.
Appeal from the District Court for Lincoln County: Donald
E. Rowlands, Judge. Affirmed.
Donald M. Lee, pro se.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.