In re Interest of Becka P. ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/15/2017 05:13 PM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
In re I nterest of
Becka P. et al., children
18 years of age.
under
State of Nebraska, appellee, v. Robert P.
and Veronica M., appellants.
___ N.W.2d ___
Filed April 7, 2017. Nos. S-16-646 through S-16-648.
1. Juvenile Courts: Jurisdiction. An appellate court reviews juvenile
cases de novo on the record and reaches its conclusions independently
of the juvenile court’s findings.
2. 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.
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. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), the three types of final orders which may be reviewed
on appeal are (1) an order which affects a substantial right and which
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 application in an action
after judgment is rendered.
5. Juvenile Courts: Final Orders: Appeal and Error. A proceed-
ing before a juvenile court is a “special proceeding” for appellate
purposes.
6. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
7. Juvenile Courts: Parental Rights: Final Orders: Time. 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
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
length of time over which the parent’s relationship with the juvenile may
reasonably be expected to be disturbed.
8. Constitutional Law: Parental Rights. Parents have a fundamental lib-
erty interest in directing the education of their children.
9. Parental Rights: Final Orders: Time: 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.
10. Parental Rights: Final Orders: Time. An order appointing an educa-
tional surrogate which has no limitation on its duration or scope is not
a temporary order, but, rather, one which affects the parents’ substantial
right to direct the education of their child.
11. Jurisdiction: Appeal and Error. Generally, once an appeal has been
perfected to an appellate court, the trial court is divested of its jurisdic-
tion to hear a case involving the same matter between the same parties;
however, there is statutory authority allowing the juvenile court to retain
or continue jurisdiction while appeals are pending.
12. Juvenile Courts: Jurisdiction: Parental Rights: Appeal and Error.
Although a juvenile court retains jurisdiction over a juvenile while an
appeal is pending, such continuing jurisdiction is not without limits;
for example, the continuing jurisdiction of a juvenile court pending an
appeal does not include the power to terminate parental rights.
13. Juvenile Courts: Jurisdiction: Final Orders: Appeal and Error.
Pending an appeal from an adjudication, the juvenile court does not have
the power to enter a permanent dispositional order.
14. Juvenile Courts: Jurisdiction: Appeal and Error. The extent of the
juvenile court’s jurisdiction over a juvenile while an appeal is pending
must be determined by the facts of each case.
15. ____: ____: ____. A juvenile court has continuing jurisdiction to issue
and rule upon an order to show cause seeking enforcement of a previous
order while the order of adjudication is pending on appeal.
16. Juvenile Courts: Contempt. Juvenile courts, whether separate juvenile
courts or county courts sitting as juvenile courts, are courts of record
with the statutory authority to punish contemptuous conduct.
Appeals from the County Court for Garden County: R andin
Roland, Judge. Affirmed.
Michael R. Snyder, of Snyder & Hilliard, P.C., L.L.O., for
appellants.
Philip E. Pierce, Garden County Attorney, for appellee.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Stacy, J.
Robert P. and Veronica M. appeal from orders of the county
court for Garden County, sitting as a juvenile court, appointing
an “educational surrogate” after Robert and Veronica refused
to complete consent forms necessary to authorize speech and
language and early childhood development assessments previ-
ously ordered by the court. We affirm.
FACTS
Robert and Veronica are the parents of Becka P.; Robert
P., Jr. (Robert Jr.); and Thomas P. In December 2015, the
State filed juvenile petitions, alleging the children—who were
ages 4, 2, and 1, respectively—came within the meaning of
Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) due to the faults
and habits of their parents. The cases were consolidated for
trial, and the juvenile court entered orders finding the allega-
tions of the petitions were true as to all three children. The
orders of adjudication placed custody of the children with the
Nebraska Department of Health and Human Services (DHHS)
and, among other things, ordered a “language and speech
assessment” for Becka and an “early childhood development
assessment” for Robert Jr. and Thomas. All assessments were
to be conducted on the children by an “Educational Services
Unit” (ESU).
The parents appealed the adjudication orders in all three
cases. The appeals were consolidated, and on October 19, 2016,
the Nebraska Court of Appeals affirmed the adjudications in
an unpublished memorandum opinion in cases Nos. A-16-351
through A-16-353. The mandate issued November 23.
While the parents’ appeals were pending before the Court
of Appeals, the county attorney charged with enforcing court
orders filed an “Affidavit and Application for Order to Show
Cause” in the juvenile court. This application asked that the
parents and DHHS be ordered to appear and show cause why
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
they should not be held in contempt for failing to comply with
the assessments previously ordered by the court. The record
indicates the court issued an order to show cause in each of
the three cases and consolidated the matters for purposes of
the hearing.
A show cause hearing was held in May 2016. Evidence
introduced by the State showed the parents had signed the
informed consent forms needed by the ESU to proceed with
the assessments, but had added language indicating their sig-
natures were not voluntary, and had refused to consent to the
release of information between the ESU and the programs it
uses to conduct the evaluations. As such, the ESU did not con-
sider the consent forms sufficient to permit the assessments to
be performed and the evaluations to be completed. There was
evidence that DHHS had not signed the consent forms, but that
pertinent regulations precluded DHHS from signing such con-
sents for children who are wards of the State.
After hearing the evidence, the court declined to make any
finding of contempt and instead decided to appoint an “educa-
tional surrogate” to authorize the necessary consents. The fol-
lowing colloquy took place on the record:
THE COURT: . . . I’m going to appoint [an] educa-
tional surrogate for all three children. There are no limita-
tions on that whatsoever . . . .
....
[Parents’ counsel]: — I assume before you appoint . . .
a surrogate, you’ll give a short time for [the parents] to
sign [the] documents?
THE COURT: Okay. No. We’re done. She’s a surro-
gate. . . .
[Parents’ counsel]: Okay.
THE COURT: Because I’m not going to come back
here when they refuse to do something in the future.
....
. . . I’m not going to find anyone in contempt. I don’t
think it’s necessary.
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296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
....
. . . I’m going to appoint [an attorney] as the surrogate
to have educational rights for all three children.
As I understand from the testimony presented today,
that will allow the evaluations to go through. . . .
I believe the adjudications are up on appeal. I think we
have a status hearing set just to monitor how the appeal
is progressing.
....
. . . We’ll schedule it for August 4th at 2:00 p.m. And
if we’re still waiting for an appellate decision at that time,
we’ll certainly entertain a motion to continue that out
probably for another month or so to monitor the ruling.
All prior orders not in conflict are continued. Court’s
adjourned.
After the show cause hearing, the court entered an order in
each child’s case which provided that a particular attorney was
“appointed as educational surrogate for the minor child herein
and shall have all educational rights for the minor child.”
Robert and Veronica timely appealed from the May 2016
orders appointing an educational surrogate in each child’s case.
We moved these appeals to our docket on our own motion pur-
suant to our statutory authority to regulate the caseloads of the
appellate courts of this state.1
ASSIGNMENTS OF ERROR
Robert and Veronica assign, consolidated and restated, that
the juvenile court erred in (1) ordering them to show cause why
they should not be held in contempt, and subsequently appoint-
ing an educational surrogate, while appeals of the adjudications
were pending in the Court of Appeals and (2) appointing an
educational surrogate in a civil contempt proceeding without
giving them an opportunity to purge their contempt by com-
pleting the assessment consent forms.
1
Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
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.2
[2] A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law.3
ANALYSIS
Orders A ppointing Educational
Surrogate Were Final Orders
[3] The State argues the orders appointing an educational
surrogate were not final, appealable orders. In a juvenile case,
as in any other appeal, before reaching the legal issues pre-
sented for review, it is the duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it.4
Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016) gives
appellate courts jurisdiction to review “[a]ny final order or
judgment entered by a juvenile court . . . .” No one argues that
the orders appointing an educational surrogate are judgments
under Neb. Rev. Stat. § 25-1301 (Reissue 2016), so whether
we have jurisdiction to review the juvenile court’s orders
depends on whether Robert and Veronica have appealed from
final orders.
[4,5] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the
three types of final orders which may be reviewed on appeal
are (1) an order which affects a substantial right and which
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
application in an action after judgment is rendered.5 Because
2
In re Interest of Danaisha W. et al., 287 Neb. 27, 840 N.W.2d 533 (2013).
3
Id.
4
Id.
5
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012); In re
Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
a proceeding before a juvenile court is a “special proceeding”
for appellate purposes,6 the pertinent inquiry is whether the
order appointing an educational surrogate affected a substantial
right. We conclude it did.
[6,7] A substantial right is an essential legal right, not a
mere technical right.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
reasonably be expected to be disturbed.8 This court has consid-
ered both the object and duration of the orders at issue here,
and we conclude the orders affect a substantial right.
[8] The object of the orders appointing an educational sur-
rogate is the fundamental right of Robert and Veronica to
direct the education of their children. The U.S. Supreme Court
has recognized parents have a fundamental liberty interest
in directing the education of their children.9 And this court
has recognized there “can be no doubt that the object of [an
order prohibiting a parent from homeschooling her child] is
of sufficient importance to affect a substantial right.”10 Here,
although the educational surrogate was appointed to address
the parents’ refusal to consent to court-ordered assessments,
the orders gave the surrogate “all educational rights for the
minor child” and the court clarified on the record that “[t]here
are no limitations on [the appointment] whatsoever . . . .”
6
In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).
7
In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015).
8
Id.
9
See, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000); Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L.
Ed. 2d 772 (1997); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct.
571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct.
625, 67 L. Ed. 1042 (1923).
10
In re Interest of Cassandra B. & Moira B., 290 Neb. 619, 625, 861 N.W.2d
398, 403 (2015).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
We are persuaded on this record that the object of the orders
appointing an educational surrogate is of sufficient importance
to affect a substantial right.
[9] The second prong of the substantial right analysis
requires consideration of the length of time over which the
parent-child relationship may reasonably be expected to be dis-
turbed.11 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.12
[10] Here, neither the language of the orders appointing the
educational surrogate nor the court’s remarks on the record
denote a temporary interruption of the parents’ rights to direct
the education of their children. To the contrary, the court’s
remarks indicate the educational surrogate was appointed with
“no limitations on that whatsoever” and the court wanted
the appointment to continue in case the parents “refuse to
do something in the future.” Because there was no limit on
the duration or scope of the educational surrogate’s appoint-
ment, we conclude these were not temporary orders, but,
rather, orders which affected the parents’ substantial right to
direct the education of their child.13 The orders were therefore
final orders, and we proceed to consider the errors assigned
on appeal.
Robert and Veronica challenge the appointment of an educa-
tional surrogate on two grounds. First, they argue the juvenile
court lacked jurisdiction to issue or rule upon the orders to
show cause while the adjudications were pending on appeal.
Next, they argue the orders appointing an educational surrogate
were improper sanctions for civil contempt, because they were
not afforded “an opportunity to purge their contempt by sign-
ing the testing authorization forms.” We consider each argu-
ment in turn.
11
Id.
12
Id.
13
See id.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
Juvenile Court H ad Jurisdiction
to Issue and Rule Upon
Orders to Show Cause
Robert and Veronica argue the juvenile court was with-
out power to issue orders to show cause or appoint an edu-
cational surrogate while their appeals of the adjudications
were pending before the Court of Appeals. They contend the
appeal divested the juvenile court of jurisdiction to issue or
rule upon the orders to show cause. In this regard, Robert
and Veronica do not contend that the surrogate was unneces-
sary or that the ordered assessments were unrelated to the
basis for adjudication. Nor do they challenge the juvenile
court’s authority to appoint an educational surrogate gener-
ally. Rather, they assign and argue that because the adjudica-
tion appeals were pending, the juvenile court lacked authority
to take any action.
[11-15] Nebraska case law generally holds that once an
appeal has been perfected, the trial court is divested of its juris-
diction to hear a case involving the same matter between the
same parties.14 However, Neb. Rev. Stat. § 43-2,106 (Reissue
2016) provides in relevant part:
When a juvenile court proceeding has been insti-
tuted before a county court sitting as a juvenile court,
the original jurisdiction of the county court shall con-
tinue until the final disposition thereof and no appeal
shall stay the enforcement of any order entered in the
county court. After appeal has been filed, the appel-
late court, upon application and hearing, may stay any
order, judgment, or decree on appeal if suitable arrange-
ment is made for the care and custody of the juvenile.
The county court shall continue to exercise supervision
over the juvenile until a hearing is had in the appellate
court and the appellate court enters an order making
other disposition.
14
In re Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d 109 (1998).
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296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
(Emphasis supplied). In In re Interest of Jedidiah P.,15 we
explained that although a juvenile court retains jurisdiction
over a juvenile while an appeal is pending, such continuing
jurisdiction is not without limits. For example, the continu-
ing jurisdiction of a juvenile court pending an appeal from an
adjudication does not include the power to terminate parental
rights16 or to enter a permanent dispositional order.17 As such,
the extent of the juvenile court’s jurisdiction must be deter-
mined by the facts of each case.18 The question presented here
is whether, while the orders of adjudication were pending on
appeal, the juvenile court had continuing jurisdiction to issue
and rule upon orders to show cause seeking enforcement of its
previous orders requiring a speech and language assessment.
We conclude it did.
[16] The juvenile court’s adjudication orders placed custody
of the children with DHHS and, among other things, ordered
that assessments be conducted by the ESU. When the State
learned the assessments had not yet occurred because DHHS
and the parents had refused to complete the necessary forms,
the State sought to enforce the court’s orders by filing an affi-
davit and application for order to show cause in each case.
Juvenile courts, whether separate juvenile courts or county
courts sitting as juvenile courts, are courts of record with the
statutory authority to punish contemptuous conduct.19 Section
43-2,106 expressly provides that “no appeal shall stay the
enforcement of any order entered in the county court [sitting
as a juvenile court].” Because the proceedings were enforcing
15
In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).
16
Id., citing In re Interest of Joshua M. et al., 4 Neb. Ct. App. 659, 548 N.W.2d
348 (1996), reversed in part on other grounds 251 Neb. 614, 558 N.W.2d
548 (1997).
17
Id., citing In re Interest of Andrew H. et al., 5 Neb. Ct. App. 716, 564 N.W.2d
611 (1997).
18
Id.
19
In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011).
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
IN RE INTEREST OF BECKA P. ET AL.
Cite as 296 Neb. 365
previous orders of the juvenile court, we find no merit to the
parents’ contention that the juvenile court lacked authority to
issue or rule upon the orders to show cause while the orders of
adjudication were on appeal.
Orders A ppointing Educational
Surrogate Were Not Premised
on Finding of Contempt
Robert and Veronica argue the juvenile court erred in impos-
ing “an unconditional punishment of removal of educational
rights in a civil contempt proceeding, without giving [them]
an opportunity to purge their contempt by signing the testing
authorization forms. The parents argue that the court imposed
a punitive sanction in a civil contempt proceeding, and they
suggest a proper sanction for civil contempt “should have
allowed them to purge the contempt by . . . sign[ing] the
[authorization] forms for the tests.”20
This assignment of error assumes the court ordered the
appointment of an educational surrogate as a sanction for a
finding of civil contempt. But that is incorrect. The record
shows the court specifically declined to find either the parents
or DHHS in contempt of court for failing to complete the nec-
essary authorizations. The orders appointing an educational
surrogate were not imposed as a sanction for civil contempt,
because there was no finding of contempt made by the court.
We find this assignment of error is factually unsupported and
therefore lacks merit.
CONCLUSION
For the foregoing reasons, the orders of the juvenile court
are affirmed.
A ffirmed.
20
Brief for appellants at 9.