In re Interest of Danaisha W. ( 2013 )

Nebraska Advance Sheets
IN RE INTEREST OF DANAISHA W. ET AL. 27
Cite as 287 Neb. 27
sense, but, rather, whether these specific lodging facilities
were reasonably necessary to accomplish the educational pur-
pose of the Foundation in the operation of its museum. Just as
the grazing and farming lands were reasonably necessary to
the charitable and educational purposes of the boys’ ranch in
Lariat Boys Ranch and the childcare facility was reasonably
necessary to accomplish the charitable purposes of the hospital
in Immanuel, Inc., the operation of the motel and campground
by the Foundation is reasonably necessary to the accomplish-
ment of its educational mission.
Because we conclude that TERC erred as a matter of law in
vacating and reversing the decisions of the board, we need not
consider the Foundation’s remaining assignments of error.
CONCLUSION
For the reasons discussed, we reverse TERC’s decisions
which vacated and reversed the decisions of the board, and
we remand each cause to TERC with directions to affirm
the board’s decision granting property tax exemptions to the
Foundation for its motel and campground properties for the tax
year 2011.
R eversed and remanded with directions.
In re I nterest of
Danaisha W. et al.,
children under18 years of age.
State of Nebraska, appellee, v.
Dennisca W., appellant.
___ N.W.2d ___
Filed December 13, 2013. No. S-13-218.
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.
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.
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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. 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.
6. Juvenile Courts: Appeal and Error. A proceeding before a juvenile court is a
special proceeding for appellate purposes.
7. Child Custody: Visitation: Final Orders: Appeal and Error. Orders which
temporarily suspend a parent’s custody and visitation rights do not affect a sub-
stantial right and are therefore not appealable.
8. 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.
Appeal from the Separate Juvenile Court of Lancaster
County: Linda S. Porter, Judge. Appeal dismissed.
Hazell G. Rodriguez, of Legal Aid of Nebraska, for appellant.
Joe Kelly, Lancaster County Attorney, and Carolyn C. Bosn
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
Dennisca W. is the mother of six minor children who are the
subject of a juvenile proceeding pending in the separate juve-
nile court of Lancaster County. She appeals from an order of
that court, contending that its provisions with respect to visita-
tion amount to an improper delegation of the juvenile court’s
authority to the Department of Health and Human Services
(DHHS). The State contends that the order is not appealable.
We agree with the State and therefore dismiss the appeal for
lack of jurisdiction.
BACKGROUND
Of the six children involved in this case, the oldest child
was born in 2004 and the youngest children, twins, were
born in 2010. Insofar as we can determine from the record,
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IN RE INTEREST OF DANAISHA W. ET AL. 29
Cite as 287 Neb. 27
the children’s fathers have not been made parties to the juve-
nile proceedings.
This juvenile proceeding began in March 2011, when an
order for temporary custody was entered based on reports of
domestic abuse and after Dennisca left her infant unattended
while seeking medical treatment for one of her other children.
The children were adjudicated on May 12, 2011, after Dennisca
entered a plea of no contest. The juvenile court made find-
ings that the children were at risk of harm due to domestic
violence in the home. It also found that after the twins’ birth,
meconium test results for one of the twins showed the presence
of marijuana.
The children were originally placed with their maternal
grandmother. Dennisca was permitted to live in the same home,
and the children were returned to her custody in January 2012,
with a requirement that she and the children continue to reside
with the grandmother. It was subsequently discovered that
Dennisca and the children were frequently staying with other
family members, and the children were again removed from
her custody and were placed in foster homes.
The juvenile court conducted a review hearing on October
29, 2012, and entered a dispositional order on November 1.
In that order, the court found that reasonable efforts had been
made to return legal custody of the children to Dennisca, but
that doing so would be contrary to the welfare of the children
due to Dennisca’s “lack of appropriate behaviors in interac-
tions with her children and others”; her “relapse in the use of
controlled substances and failure to successfully complete sub-
stance abuse treatment”; and her “failure to date to demonstrate
a safe, stable, and drug-free and violence-free environment
for her children.” The court further found that “the health and
safety of the minor children require said children’s continued
removal from the family home” and that it was “in the chil-
dren’s best interests and welfare that they remain in out-of-
home placements at this time.”
The court overruled Dennisca’s request to place the chil-
dren back with their maternal grandmother. The court ordered
Dennisca to establish a safe and stable home and a legal means
of support for herself and her children, to abstain from alcohol
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and nonprescribed controlled substances, and to participate in
individual therapy sessions “to address anger management,
healthy interpersonal relationships, social skills, including
working cooperatively with others involved in her children’s
lives, and abstinence from controlled substances.” The order
also provided: “Visitation/parenting time between [Dennisca]
and the minor children is temporarily suspended at this time.”
There was no appeal from this order.
On December 6, 2012, the State filed a motion for termi-
nation of parental rights. The case came before the court on
December 18 for a hearing on Dennisca’s motion to reinstate
visitation rights, which the court overruled after receiving evi-
dence. After providing Dennisca with a copy of the motion to
terminate parental rights, the court scheduled an adjudication
hearing on the motion for January 29, 2013. There was no
appeal from this order.
At the January 29, 2013, hearing, the court advised Dennisca
of her rights with respect to the motion to terminate her paren-
tal rights and received her plea of “denial.” After stating that
it would conduct a formal hearing on the motion to terminate
parental rights on March 21, the court accepted Dennisca’s
request to conduct a review hearing on the issue of visitation.
The court thereafter received evidence on the visitation issue,
including a court report submitted by DHHS, a report of the
guardian ad litem, documents compiled by KVC Behavioral
Healthcare regarding care plans for the children, and a report
from the Nebraska Foster Care Review Office. Dennisca testi-
fied at the hearing, as did the DHHS caseworker assigned to
the case.
In an order entered on February 11, 2013, the juvenile court
found that services had been provided in compliance with the
case plan and that Dennisca had made no sustained progress
to alleviate the causes of the adjudication and the children’s
out-of-home placements. The court ordered that the children
remain in the temporary custody of DHHS for placement,
treatment, and care, and further ordered that DHHS could not
change the foster placements without prior court approval. The
court ended its temporary suspension of Dennisca’s visitation
rights, but imposed specific conditions upon such visitation. It
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Cite as 287 Neb. 27
ordered that Dennisca could have visitation with each of the
children at a location selected by DHHS, fully supervised by
a therapist, DHHS caseworker, or family support worker who
is familiar with the child. Visitation with each of the children
was to be separate. The order further provided that Dennisca
could be required to meet with any therapist who was super-
vising a visit prior to the visit to “go over ground rules and
suggestions.” She was also directed not to discuss with the
children the pending termination proceeding or the children’s
placement. In addition, no other persons were to be present
during the visitation except Dennisca and the individual des-
ignated by DHHS to supervise the visit. The order provided:
“If [Dennisca] is unwilling to abide by any ground rules and
the restrictions as to the visitation as set forth herein, visitation
with that child or those children shall remain suspended pend-
ing further hearing before this Court.”
On March 5, 2013, Dennisca filed a motion to compel, ask-
ing the court to enter an order directing DHHS to immediately
schedule visitation based on the February 11 order. The motion
stated that Dennisca’s counsel had encountered difficulty in
making arrangements with DHHS for the visits ordered by the
court. On March 8, 3 days after filing the motion to compel,
and before any disposition by the juvenile court, Dennisca filed
a notice of appeal from the February 11 order.
While the appeal was pending before the Nebraska Court
of Appeals, the State filed a motion for summary dismissal
pursuant to Neb. Ct. R. App. P. § 2-107(B)(1) (rev. 2012), con-
tending that there was no final, appealable order. The Court of
Appeals denied the motion. We subsequently moved the case
to our docket on our own motion, pursuant to our statutory
authority to regulate the caseloads of the appellate courts of
this state.1
ASSIGNMENTS OF ERROR
Dennisca contends that the juvenile court erred in (1) del-
egating its authority to DHHS and therapists to determine and
1
See, Neb. Rev. Stat. § 24-1106(3) (Reissue 2008); Neb. Ct. R. App. P.
§ 2-102(C) (rev. 2012).
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enforce their own conditions for visitation; (2) determining that
visitation with the children should be separate, contrary to the
best interests of the children and despite Dennisca’s progress
and improvement; and (3) creating a conditional order, which
Dennisca contends is unreasonable and void.
STANDARD OF REVIEW
[1,2] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings.2 A jurisdictional question which does
not involve a factual dispute is determined by an appellate
court as a matter of law.3
ANALYSIS
[3-6] The State reasserts its argument that we lack appellate
jurisdiction because there was no final, appealable order by
the juvenile court. 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 jurisdic-
tion over the matter before it.4 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 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.6 A proceeding before a juvenile court is a special
proceeding for appellate purposes.7 Therefore, we must con-
sider whether the order of the juvenile court which imposed
conditions and restrictions upon Dennisca’s visitation with her
children affected a substantial right.
2
In re Interest of Edward B., 285 Neb. 556, 827 N.W.2d 805 (2013); In re
Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).
3
In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011); In re
Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).
4
In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011); In re
Interest of Taylor W., 276 Neb. 679, 757 N.W.2d 1 (2008).
5
Selma Development v. Great Western Bank, 285 Neb. 37, 825 N.W.2d 215
(2013).
6
See id.
7
In re Interest of Jamyia M., supra note 3.
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[7] We have held that where an order from a juvenile court
is already in place and a subsequent order merely extends the
time for which the previous order is applicable, the subsequent
order by itself does not affect a substantial right and does not
extend the time in which the original order may be appealed.8
The State contends that this rule applies here because the juve-
nile court’s order of February 11, 2013, imposing conditions
on Dennisca’s visitation rights, was merely a continuation of
its order of November 1, 2012, suspending those rights, from
which Dennisca did not appeal. But the State’s position is
incorrect because the November 1 order explicitly stated that
Dennisca’s visitation and parenting time were “temporarily
suspended.” Orders which temporarily suspend a parent’s cus-
tody and visitation rights do not affect a substantial right and
are therefore not appealable.9
[8] However, we find the February 11, 2013, order was not
a final order for a different reason. 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.10
Although the February 11 order was not specifically designated
as “temporary” in nature, it was effectively so, because on
the same date, the court scheduled the hearing on the State’s
motion to terminate parental rights for March 21. Borrowing
from our final order jurisprudence in juvenile cases, we held in
In re Guardianship of Sophia M.11 that an order which denied
a mother visitation with her child pending a final hearing on
the custodial grandparents’ petition for guardianship did not
affect the mother’s substantial right, because the hearing was
scheduled for 3 weeks later. We reasoned that “since the order
8
In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289
(2000).
9
See, Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009); In re
Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006).
10
In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010); Steven
S. v. Mary S., supra note 9.
11
In re Guardianship of Sophia M., supra note 9.
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effectively denied visitation only until the final guardianship
hearing, the length of time that [the mother’s] relationship with
[the child] was to be disturbed was brief, and the order was not
a permanent disposition.”12
Given the procedural posture of this case at the time the
February 11, 2013, visitation order was entered, the order
could be expected to affect Dennisca’s relationship with her
children only until such time as the juvenile court ruled on
the State’s motion to terminate her parental rights. It is that
disposition which will determine whether the parental rela-
tionship will continue and, if so, under what conditions. Had
this appeal not been taken, the resolution of the motion to
terminate parental rights would likely have occurred within a
few weeks after entry of the visitation order. As we noted in
In re Guardianship of Sophia M., the fact that an appeal has
delayed final disposition “is unfortunate but irrelevant in our
determination whether the order, when issued, affected a sub-
stantial right.”13
We conclude that because the February 11, 2013, order
related to visitation and was necessarily temporary in nature,
it did not affect a substantial right and was not a final,
appealable order. Accordingly, we dismiss the appeal for lack
of jurisdiction.
CONCLUSION
For the reasons discussed, we find that this court lacks juris-
diction and that the appeal must be dismissed.
Appeal dismissed.
12
Id. at 139, 710 N.W.2d at 317.
13
Id.