In re Interest of Jassenia H. ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF JASSENIA H.
Cite as 291 Neb. 107
In re I nterest of Jassenia H., a child
under 18 years of age.
State of Nebraska, appellee, and Joy Shiffermiller,
guardian ad litem, on behalf of Jassenia H.,
appellant, v. Monique M., appellee.
___ N.W.2d ___
Filed June 12, 2015. No. S-14-1076.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
which does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent of the lower court’s decision.
2. 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.
3. Jurisdiction: Appeal and Error. When an appellate court is without
jurisdiction to act, the appeal must be dismissed.
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; conversely, an appellate
court is without jurisdiction to entertain appeals from nonfinal orders.
5. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902
(Reissue 2008), the three types of final orders which may be reviewed
on appeal are (1) an order which affects a substantial right in an action
and which in effect determines the action and prevents a judgment, (2)
an order affecting a substantial right made during a special proceeding,
and (3) an order affecting a substantial right made on summary applica-
tion in an action after a judgment is rendered.
6. Juvenile Courts: Appeal and Error. A proceeding before a juvenile
court is a special proceeding for appellate purposes.
7. Final Orders: Appeal and Error. To be final and appealable, an order
in a special proceeding must affect a substantial right.
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IN RE INTEREST OF JASSENIA H.
Cite as 291 Neb. 107
8. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
9. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to the appellant prior to the order
from which the appeal is taken.
Appeal from the Separate Juvenile Court of Lancaster
County: Toni G. Thorson, Judge. Appeal dismissed.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
guardian ad litem, for appellant.
Lisa F. Lozano and Danielle L. Savington for appellee
Monique M.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
This appeal attempts to challenge a juvenile court order
determining that the federal Indian Child Welfare Act of 1978
(ICWA)1 (and by implication, the Nebraska Indian Child
Welfare Act (NICWA)2) applies to the adjudication proceed-
ing of an alleged Indian child. The child’s guardian ad litem
(GAL) asserts that the “Indian family” had already been dis-
solved by the mother’s intent to relinquish custody. However,
we determine that the order was not a final, appealable order.
The mere determination that ICWA and NICWA applied, with-
out further action, did not affect a substantial right. We dismiss
the appeal for lack of jurisdiction.
BACKGROUND
The juvenile proceeding under Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008) regarding Jassenia H. began several weeks
1
25 U.S.C. §§ 1901 to 1963 (2012).
2
Neb. Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2008 & Cum. Supp.
2014).
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IN RE INTEREST OF JASSENIA H.
Cite as 291 Neb. 107
after her birth and commenced with the filing of a motion for
temporary custody. In support of the motion, the State attached
an affidavit from a “Children and Family Services Specialist”
with the Nebraska Department of Health and Human Services
(DHHS). The specialist indicated that Jassenia’s mother,
Monique M., had an extensive history of involvement with
DHHS regarding her other children. According to the special-
ist, “[S]everal of [Monique’s] children have been abused and/
or neglected, which resulted in them being removed from her
care. She has thereafter failed to correct the conditions of
neglect and those children have not been able to be returned
to her care.”
The juvenile court granted DHHS temporary custody of
Jassenia and ordered that she be removed from Monique’s
care. Several days later, the State filed a petition for adjudica-
tion pursuant to § 43-247(3)(a), alleging that Jassenia lacked
proper parental care by reason of Monique’s fault or habits
and/or that Jassenia was in a situation dangerous to life or limb
or injurious to her health or morals.
After a hearing, the juvenile court ordered the State to pro-
vide notice to the Oglala Sioux Tribe as set forth in ICWA and
NICWA. The notice provisions of ICWA and NICWA are sub-
stantially the same. Under NICWA,
[i]n any involuntary proceeding in a state court, when the
court knows or has reason to know that an Indian child
is involved, the party seeking the foster care placement
of, or termination of parental rights to, an Indian child
shall notify the parent or Indian custodian and the Indian
child’s tribe . . . of the pending proceedings and of their
right of intervention. . . . No foster care placement or ter-
mination of parental rights proceedings shall be held until
at least ten days after receipt of notice by the parent or
Indian custodian and the tribe or the secretary.3
In addition, the court appointed a GAL for Jassenia and coun-
sel to represent Monique.
3
§ 43-1505(1).
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291 Nebraska R eports
IN RE INTEREST OF JASSENIA H.
Cite as 291 Neb. 107
At a later hearing, the juvenile court stated that despite the
notice given to the Oglala Sioux Tribe, no response or motion
to intervene had been received from the tribe. And accord-
ing to Monique’s testimony, Jassenia was eligible for enroll-
ment in the tribe. Monique testified that she was an enrolled
member of the tribe, that Jassenia was born on the reserva-
tion, and that Monique had completed “application forms” for
Jassenia’s enrollment.
However, Monique also testified that on the day of
Jassenia’s birth, she had intended to grant custody of Jassenia
to Monique’s cousin. To that effect, Monique executed a
document purporting to “[h]ereby/and give full legal consent
and guardianship an[d] custody of [Jassenia] [t]o my relative
. . . .” And Monique believed that pursuant to the document,
her cousin had “legal custody” of Jassenia. Monique testified
that her cousin was a member of the tribe living on the res-
ervation and that Monique wanted Jassenia to be raised in a
“Native American culture” by a family member.
After the hearing, the juvenile court continued the matter in
order to determine whether ICWA applied. And on that issue,
the GAL filed a motion specifically requesting that ICWA be
found inapplicable based upon the U.S. Supreme Court’s hold-
ing in Adoptive Couple v. Baby Girl.4
In Adoptive Couple, the adoptive parents of a little girl who
was 3/256 Cherokee petitioned for certiorari from the South
Carolina Supreme Court’s interpretation of certain provisions
of ICWA. The South Carolina court interpreted provisions of
the federal act to require the removal of the girl from her adop-
tive parents’ care to be given to her biological father, a member
of the Cherokee Nation, with whom she had never had prior
contact and who had attempted to relinquish custody.
The U.S. Supreme Court rejected the South Carolina court’s
interpretation and observed that the adoption of the little girl
did not contravene Congress’ intent in enacting ICWA.
4
Adoptive Couple v. Baby Girl, ___ U.S. ___, 133 S. Ct. 2552, 186 L. Ed.
2d 729 (2013).
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IN RE INTEREST OF JASSENIA H.
Cite as 291 Neb. 107
[T]he primary mischief the ICWA was designed to coun-
teract was the unwarranted removal of Indian children
from Indian families due to the cultural insensitivity and
biases of social workers and state courts. . . . And if the
legislative history of the ICWA is thought to be relevant,
it further underscores that the Act was primarily intended
to stem the unwarranted removal of Indian children
from intact Indian families. . . . In sum, when, as here,
the adoption of an Indian child is voluntarily and law-
fully initiated by a non-Indian parent with sole custodial
rights, the ICWA’s primary goal of preventing the unwar-
ranted removal of Indian children and the dissolution of
Indian families is not implicated.5
Relying upon the Court’s holding, the GAL argued that
Monique’s intention to relinquish custody of Jassenia ren-
dered ICWA inapplicable. The GAL claimed that like
Adoptive Couple, this case would not result in the dissolu-
tion of an Indian family, because Monique did not intend to
raise Jassenia.
The juvenile court conducted a hearing on the applicability
of ICWA, and the court received an affidavit from an “ICWA
Advocate” with the Oglala Sioux Tribe. In the affidavit, the
advocate stated that he had reviewed the tribe’s “records of
enrollment” and that Monique was a registered member of the
tribe. He further averred that as the child of an enrolled mem-
ber, Jassenia was eligible for enrollment in the tribe.
The juvenile court entered an order finding that ICWA was
applicable to the proceedings. (Because the applicability of
ICWA and NICWA are substantially the same,6 we construe
the court’s order as speaking to both acts.) The GAL filed
5
Id., 133 S. Ct. at 2561.
6
See 25 U.S.C. § 1903(4) and § 43-1503(4). See, also, In re Adoption
of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007) (observing that
applicability of ICWA and NICWA depends on whether proceedings
involve “Indian child”).
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291 Nebraska R eports
IN RE INTEREST OF JASSENIA H.
Cite as 291 Neb. 107
a timely notice of appeal, and we moved the appeal to our
docket pursuant to statutory authority.7
ASSIGNMENT OF ERROR
The GAL assigns, restated, that the juvenile court erred in
determining that ICWA and NICWA were applicable to the
proceedings notwithstanding Monique’s intent to relinquish
custody of Jassenia.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.8
ANALYSIS
[2,3] As noted above, from the outset, this case presents an
issue regarding appellate jurisdiction. 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.9 When an
appellate court is without jurisdiction to act, the appeal must
be dismissed.10
[4,5] 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; conversely, an appellate
court is without jurisdiction to entertain appeals from nonfinal
orders.11 Under Neb. Rev. Stat. § 25-1902 (Reissue 2008),
the three types of final orders which may be reviewed on
appeal are (1) an order which affects a substantial right in an
action and which in effect determines the action and prevents
7
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
8
In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006).
9
In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
10
Carlos H. v. Lindsay M., 283 Neb. 1004, 815 N.W.2d 168 (2012).
11
In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002).
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IN RE INTEREST OF JASSENIA H.
Cite as 291 Neb. 107
a judgment, (2) an order affecting a substantial right made
during a special proceeding, and (3) an order affecting a sub-
stantial right made on summary application in an action after
a judgment is rendered.12
[6,7] We have previously indicated that a proceeding before
a juvenile court is a special proceeding for appellate pur­
poses.13 Thus, we focus our analysis upon the second category
of final orders set forth in § 25-1902. And as provided by that
section, to be final and appealable, an order in a special pro-
ceeding must affect a substantial right.14
However, short of identifying a substantial right, the GAL
does not identify any right which was affected by the juve-
nile court’s order finding ICWA and NICWA applicable to
the proceedings. Rather, her assertion of appellate jurisdiction
relies upon the Nebraska Court of Appeals’ holding in In re
Interest of Brittany C. et al.15 In that case, the Court of Appeals
concluded that the denial of a biological mother’s requests to
transfer jurisdiction to a tribal court pursuant to ICWA and
NICWA was a final, appealable order.
But in In re Interest of Brittany C. et al., the Court of
Appeals reasoned that the mother’s requests for transfer were
analogous to a motion seeking arbitration in lieu of litigation.16
If granted, the proceedings would stop and be transferred to
another forum which may “differ in other respects consistent
with the tribal court’s Native American traditions.”17 And as
12
In re Interest of Meridian H., supra note 9.
13
See, e.g., id.; In re Interest of Anthony R. et al., supra note 11.
14
See In re Interest of Anthony R. et al., supra note 11.
15
In re Interest of Brittany C. et al., 13 Neb. Ct. App. 411, 693 N.W.2d 592
(2005).
16
See Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33
(2004) (determining that denial of motion to compel arbitration affected
substantial right, because motion sought to halt pending lawsuit and
transfer it to nonjudicial forum).
17
In re Interest of Brittany C. et al., supra note 15, 13 Neb. Ct. App. at 421, 693
N.W.2d at 601.
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291 Nebraska R eports
IN RE INTEREST OF JASSENIA H.
Cite as 291 Neb. 107
Congress recognized in enacting ICWA, a tribal court may
provide a parent and child with significant advantages inher-
ent in the recognition and implementation of Native American
customs and traditions.18
However, unlike In re Interest of Brittany C. et al., this case
does not involve the denial of a request to transfer jurisdic-
tion to a tribal court. Rather, the juvenile court merely deter-
mined that ICWA and NICWA were applicable to the proceed-
ings. Thus, we must decide whether this determination alone
affected a substantial right.
[8,9] We have defined a “substantial right” in various ways.
We have stated that a substantial right is an essential legal
right, not a mere technical right.19 We have also explained that
a substantial right is affected if an order affects the subject
matter of the litigation, such as diminishing a claim or defense
that was available to the appellant prior to the order from
which the appeal is taken.20
In this case, as in all juvenile cases, the GAL represents the
interests of the juvenile.21 But discussion of a juvenile’s inter-
ests is rare in our final order jurisprudence. Most of our prior
cases dealing with the finality of juvenile court orders involve
the substantial right of a parent.22 In our review, we have found
only one appellate case of this state addressing the substantial
right of a juvenile in a juvenile proceeding.23 And that case
merely determined that a juvenile did not have a substantial
right to testify outside of the presence of her mother.24
18
See id.
19
See In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
20
See id.
21
See Neb. Rev. Stat. § 43-272(2) (Reissue 2008).
22
See In re Interest of Karlie D., supra note 19 (identifying substantial right
of parent in juvenile proceedings as parent’s fundamental, constitutional
right to raise his or her child).
23
See In re Interest of Marcella B. & Juan S., 18 Neb. Ct. App. 153, 775 N.W.2d
470 (2009).
24
See id.
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IN RE INTEREST OF JASSENIA H.
Cite as 291 Neb. 107
In considering a juvenile’s interest, we take note of the
purpose of the Nebraska Juvenile Code in ensuring the rights
of all juveniles to care and protection and a safe and stable
living environment and to development of their capacities for
a healthy personality, physical well-being, and useful citizen-
ship to protect the public interest.25 And we acknowledge that
like parents, children also have a constitutional interest in
the continuance of the parent-child relationship.26 However,
we cannot settle the issue here. Although ICWA and NICWA
have repercussions upon a child’s welfare and the parent-
child relationship, these consequences are not realized until
some adjudicative or dispositive action is taken by the juve-
nile court.
Generally speaking, the substantive portions of ICWA and
NICWA provide heightened protection to the rights of Indian
parents, tribes, and children in proceedings involving custody,
termination, and adoption.27 To that effect, among other provi-
sions, the acts authorize tribal jurisdiction,28 require specific
showings for foster care placement or termination of paren-
tal rights,29 and express a preference for the placement of
Indian children with extended family members or persons with
tribal ties.30
However, all of the heightened protections afforded by
ICWA and NICWA apply prospectively to future determina-
tions in the proceedings.31 In the present case, there is no
indication that these protections have had any effect upon the
adjudication proceedings. From the record, it does not appear
25
See Neb. Rev. Stat. § 43-246(1) (Cum. Supp. 2014).
26
See In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004).
27
See In re Adoption of Kenten H., supra note 6.
28
See 25 U.S.C. § 1911 and § 43-1504.
29
See 25 U.S.C. § 1912 and § 43-1505.
30
See 25 U.S.C. § 1915 and § 43-1508.
31
See In re Adoption of Kenten H., supra note 6 (observing that ICWA and
NICWA apply prospectively from date Indian child status is established on
record).
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IN RE INTEREST OF JASSENIA H.
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that the juvenile court has entered a preadjudication detention
order. (Although we understood the GAL as stating at oral
argument that such an order had been entered, we do not find
it in our record.) And it is clear that Jassenia had not yet been
adjudicated at the time ICWA and NICWA were found appli-
cable. Further, we see no motion to transfer jurisdiction to a
tribal court or any indication that the Oglala Sioux Tribe has
sought to intervene.
Until the court takes action to implement or contravene
the heightened protections afforded by ICWA and NICWA in
some fashion, we cannot conclude that the mere determination
of applicability affects a substantial right. The juvenile court
declared only that these laws apply—it did not implement
them in any way affecting the child’s substantial rights. The
court’s order was interlocutory and until it applied the law in
some adjudicative or dispositive action, functioned merely as
an advisory opinion.
CONCLUSION
The GAL appealed from an order merely finding that ICWA
and NICWA applied to the adjudication proceeding. But the
juvenile court took no action implementing or contravening
the heightened protections afforded by the acts. Although we
are sensitive to the need to expedite juvenile matters, without
some dispositive action, we see no impact upon the juvenile’s
substantial rights. Consequently, the juvenile court’s order does
not constitute a final order within the meaning of § 25-1902.
In the absence of a final order, we must dismiss the appeal for
lack of jurisdiction. Because these proceedings have already
been delayed for an inordinate time, we have expedited the
disposition of this appeal.
A ppeal dismissed.
Stephan, J., not participating.