State v. Victoria F. (In Re Interest of Kirsten H.) , 915 N.W.2d 815 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
In re I nterest ofK irsten H., a child
under 18 years of age.
State of Nebraska, appellee,
v. Victoria F., appellant.
___ N.W.2d ___
Filed May 22, 2018. No. A-17-981.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion 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. ____: ____. Subject matter jurisdiction is a court’s power to hear and
determine a case in the general class or category to which the proceed-
ings in question belong and to deal with the general subject involved
in the action or proceeding before the court and the particular question
which it assumes to determine.
4. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
5. Child Custody: Jurisdiction. Jurisdiction over child custody pro-
ceedings is governed by the Uniform Child Custody Jurisdiction and
Enforcement Act.
6. ____: ____. Under the Uniform Child Custody Jurisdiction and
Enforcement Act, a court which makes an initial child custody deter-
mination will have exclusive, continuing jurisdiction over child cus-
tody until certain determinations are made pursuant to Neb. Rev. Stat.
§ 43-1239 (Reissue 2016).
7. ____: ____. A court with exclusive and continuing jurisdiction under the
Uniform Child Custody Jurisdiction and Enforcement Act may decline
to exercise its jurisdiction on the basis that it is an inconvenient forum.
8. Judgments: Jurisdiction. A court action taken without subject matter
jurisdiction is void.
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IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
9. Judgments: Final Orders: Jurisdiction: Appeal and Error. A void
order is a nullity which cannot constitute a judgment or final order that
confers appellate jurisdiction on a court.
10. Judgments: Jurisdiction: Appeal and Error. An appellate court has
the power to determine whether it lacks jurisdiction over an appeal
because the lower court lacked jurisdiction to enter the order; to vacate
a void order; and, if necessary, to remand the cause with appropri-
ate directions.
11. Jurisdiction: Appeal and Error. When a lower court does not have
jurisdiction over the case before it, an appellate court also lacks jurisdic-
tion to review the merits of the claim.
Appeal from the County Court for Box Butte County: Paul
G. Wess, Judge. Orders vacated, appeal dismissed, and cause
remanded with directions.
Katy A. Reichert, of Chaloupka, Holyoke, Snyder, Chaloupka
& Longoria, P.C., L.L.O., for appellant.
Travis R. Rodak, Box Butte County Attorney, for appellee.
Jean Rhodes, guardian ad litem.
R iedmann and Bishop, Judges, and Inbody, Judge, Retired.
Bishop, Judge.
INTRODUCTION
Kirsten H.’s parents divorced in North Dakota in approxi-
mately 2009. In 2012, Kirsten and her mother, Victoria F.,
moved to Nebraska, where Victoria later remarried. While vis-
iting her grandparents in North Dakota in the summer of 2016,
Kirsten made allegations that she had been sexually abused by
John F., her stepfather. Juvenile proceedings were initiated in
North Dakota, and the juvenile court there ultimately deter-
mined that Kirsten was to be returned to Victoria in Nebraska
by July 1, 2017.
Before July 1, 2017, juvenile proceedings were initiated
in Nebraska. After a hearing on August 10, the county court
for Box Butte County, sitting as a juvenile court, granted
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IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
temporary custody of Kirsten to the Nebraska Department of
Health and Human Services (DHHS) and said that placement
with her grandparents in North Dakota should continue. And
after a hearing on August 31, the juvenile court overruled
Victoria’s motion to dismiss, which claimed the juvenile court
lacked subject matter jurisdiction because of the proceed-
ings in North Dakota. Victoria appeals the orders from both
August 10 and 31. For the reasons that follow, we find that
the juvenile court of Box Butte County did not have subject
matter jurisdiction at the time of both the August 10 and
August 31 orders and that therefore, those orders are void. We
vacate those orders, dismiss the appeal, and remand the cause
with directions.
BACKGROUND
Victoria is the biological mother of Kirsten, born in December
2007. Garvin H. is Kirsten’s biological father. Garvin was sta-
tioned in Germany with the Army at the time of the juvenile
court proceedings in both North Dakota and Nebraska in 2016
and 2017; the record does not establish Garvin’s domicile.
Victoria’s father and stepmother are Kirsten’s grandparents,
and they live in North Dakota.
Victoria and Garvin were divorced in North Dakota, the
proceedings of which “started” in 2009. In 2012, Victoria
and Kirsten moved to Nebraska. Victoria subsequently mar-
ried John. Victoria, John, and Kirsten continued to live in
Nebraska.
In the summer of 2016, Kirsten went to North Dakota to
spend a week with her grandparents. While in North Dakota,
Kirsten disclosed that she had been sexually abused by John.
After receiving the report of possible abuse, and having
Kirsten interviewed (during which she also apparently dis-
closed physical abuse by John and Victoria), the State of
North Dakota initially filed for emergency custody, and later,
a “deprivation” petition was filed. Kirsten has remained with
her grandparents ever since.
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IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
North Dakota Proceedings
Although we do not have any of the initial court plead-
ings or orders from North Dakota, testimony from an April
2017 North Dakota hearing was received into evidence in the
current Nebraska case. We briefly summarize that testimony.
North Dakota entered an emergency custody order in August
2016. The “venue [got] changed” to Nebraska in October.
Nebraska apparently filed juvenile proceedings, but the pro-
ceedings were dismissed by the State in February 2017 before
it went to “trial.” Victoria then went to North Dakota to get
Kirsten, but because there were still concerns about Kirsten’s
safety, another emergency custody order was obtained in North
Dakota, and a “deprivation” petition was filed.
After a hearing in April 2017, the Foster County Juvenile
Court in North Dakota entered its order in May. The court
found that competent evidence regarding the sexual abuse alle-
gations was not presented to the court, noting that a forensic
interview of Kirsten was done but the interviewer did not tes-
tify. The court also noted that although there were allegations
of corporal punishment being used in the home, Victoria testi-
fied that she had abandoned “spanking” as a form of discipline
and that she now used “time outs and restriction of privileges.”
However, the court found Kirsten was a “deprived” child, in
that she was a child “without proper parental care, control,
subsistence, education as required by law, or other care or
control necessary for the child’s physical, mental, or emotional
health, or morals and the deprivation is not due primarily to the
lack of financial means of the parent or custodian of the child.”
That finding was made to allow Kirsten time to finish the cur-
rent school year and complete or transfer therapy to Nebraska.
The court ordered that
pending further order, the child, Kirsten . . . , be and is
hereby placed under the full care, custody, and control of
the Executive Director of Foster County Social Services,
or her successor, for placement and care, for a period
dating from February 13, 2017 until July 1st, 2017 when
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IN RE INTEREST OF KIRSTEN H.
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she shall be returned to [Victoria’s] home in Nebraska
. . . and the petitions will be dismissed.
The Foster County Juvenile Court’s May order was received
into evidence in the current Nebraska juvenile court proceeding.
Current Nebraska Case
On June 16, 2017, the State of Nebraska filed a juvenile
court petition in the county court for Box Butte County, sitting
as a juvenile court, alleging that Kirsten was a child as defined
by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), because
she lacked proper parental care by reason of the faults or hab-
its of Victoria in that Victoria failed to protect Kirsten from
sexual abuse while in her care, custody, and control and in that
Victoria failed to report child abuse reported to her by Kirsten.
The State further alleged that Kirsten was in a situation danger-
ous to life or limb or injurious to her health or morals, in that
Kirsten was sexually abused while in Victoria’s care, custody,
and control; Victoria engaged in acts toward Kirsten that would
constitute physical and/or mental abuse; and Victoria sought to
destroy or tamper with evidence regarding the alleged sexual
abuse of Kirsten by John. The juvenile petition noted that
Kirsten was living with her grandparents in North Dakota, but
did not mention that there was an ongoing juvenile case in
North Dakota.
Also on June 16, 2017, the State filed an ex parte motion
for temporary custody of Kirsten, which attached and incor-
porated the supporting affidavit of an investigator with the
Nebraska Attorney General’s office. The ex parte motion for
temporary custody also failed to mention the ongoing North
Dakota case, but the “pending juvenile case in North Dakota”
was mentioned in the supporting affidavit. On June 17, the
court granted the State’s ex parte motion for temporary cus-
tody of Kirsten.
An order filed on June 22, 2017, notes that a protective cus-
tody hearing was held and that Kirsten was to be placed into
the temporary custody of DHHS; the hearing does not appear
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IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
in our record. The court ordered that “[a]ny communication
or contact between Kirsten and [Victoria] will only occur if
Kirst[e]n agrees, and must be supervised and in a therapeu-
tic setting.”
On July 17, 2017, Victoria filed a motion to dismiss pursu-
ant to Neb. Ct. R. Pldg. § 6-1112 for lack of subject matter
jurisdiction. Victoria alleged:
1. At the time Petition was filed in the above-captioned
case, [Kirsten] was not present in the State of Nebraska;
2. [Kirsten] is not present in the State of Nebraska as
of the date hereof;
3. The Nebraska Supreme Court has held that the State
lacks parens patriae power to provide the basis for find-
ing jurisdiction over a child where the child is not within
the State’s borders at the time the petition was filed.
In re Interest of Violet T., 286 Neb. 949, 840 N.W.2d
959 (2013)[.]
Also on July 17, 2017, Victoria filed an answer denying the
allegations in the petition, and she asserted several affirma-
tive defenses, including the court’s lack of jurisdiction over
the proceedings.
An order filed on July 27, 2017, states that a hearing was
held on Victoria’s motion to dismiss and the case was taken
under advisement; the hearing does not appear in our record.
In an order filed on July 31, the court found there was insuf-
ficient evidence adduced at the July 27 hearing in order to
decide the motion. The court stated, “What is unknown, or
unclear, is whether North Dakota has adopted the [Uniform
Child Custody Jurisdiction and Enforcement Act], if so, the
specific statutory basis for the Foster County, North Dakota
Juvenile Court’s jurisdiction over Kirsten . . . and how long
Kirsten was in North Dakota before the North Dakota peti-
tion was filed.” The court overruled Victoria’s motion to
dismiss, but said the motion could be renewed and more evi-
dence adduced.
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IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
On August 10, 2017, a hearing was held on Victoria’s motion
for change of placement, filed on July 18, which had asked the
court to place Kirsten in her home or another suitable place
in Scottsbluff, Nebraska. The court treated the hearing as an
initial detention hearing, and testimony was given. In its order
filed that same day, the court found that reasonable efforts had
been made to prevent or eliminate the need for removal and
make it possible for Kirsten to safely return home, but that it
was necessary for her to be placed in the custody of DHHS.
The court further found that placement with her grandparents
in North Dakota was the least restrictive placement and in
Kirsten’s best interests. The court stated: “Reasonable visita-
tion to be determined by DHHS[.] Further visitation conditions
are: To be determined by Kirsten and her therapist . . . and
should begin in a therapeutic setting.” Victoria’s motion for
change of placement was denied.
On August 17, 2017, the State filed an amended juvenile
court petition, once again alleging that Kirsten was a child
as defined by § 43-247(3)(a). The allegations in the amended
petition varied from those in the original petition. The amended
petition did not include an allegation that Victoria failed to
report child abuse reported to her by Kirsten. But it added
an allegation that Victoria continued to sustain a relationship
with John and other individuals whose relationships and prox-
imity to Victoria were dangerous to the health or morals of
Kirsten. It also added an allegation that Kirsten was in need
of specialized treatment, including but not limited to counsel-
ing, and that Victoria has refused to facilitate or participate in
such treatment.
On August 28, 2017, Victoria filed a renewed motion
to dismiss pursuant to § 6-1112 for lack of subject mat-
ter jurisdiction, making the same allegations as in her July
17 motion to dismiss. She further alleged that the State of
Nebraska lacked jurisdiction over Kirsten under the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA),
Neb. Rev. Stat. §§ 43-1226 through 43-1266 (Reissue 2016),
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IN RE INTEREST OF KIRSTEN H.
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and that the State of North Dakota was actively exercising
jurisdiction over Kirsten at the time the petition in this case
was filed.
At a hearing on August 31, 2017, the court heard arguments
on Victoria’s renewed motion to dismiss. Various exhibits had
previously been received into evidence at the August 10 hear-
ing; among the exhibits were the bill of exceptions from April
hearings in North Dakota, a May order from North Dakota,
and a copy of the sections of the North Dakota Century Code
regarding the UCCJEA and the Uniform Juvenile Court Act.
The court noted that Kirsten had lived in Nebraska for some
time prior to her being removed from the home and then placed
with her grandparents in North Dakota. The court further noted
that at the time the case was originally filed, Victoria lived in
Box Butte County, and that she still works there. In its order
filed on August 31, the court overruled Victoria’s motion to
dismiss. The court also overruled a motion in limine filed
by Victoria, made discovery orders, and ordered a parent-
ing assessment and psychological evaluation. An adjudication
hearing was set for September 21.
Victoria appeals the orders from both August 10 and
31, 2017.
ASSIGNMENTS OF ERROR
Victoria assigns that the juvenile court erred in (1) overrul-
ing her motion to dismiss for lack of subject matter jurisdic-
tion, (2) continuing temporary custody of Kirsten and finding
that reasonable efforts were made prior to removal to prevent
or eliminate the need for removal and to make it possible for
Kirsten to return to her care, (3) finding that Kirsten’s place-
ment in North Dakota was the least restrictive placement, and
(4) delegating its authority to determine Victoria’s visitation
rights to DHHS, Kirsten, and Kirsten’s counselor.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
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IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
court’s findings. In re Interest of Dana H., 299 Neb. 197, 907
N.W.2d 730 (2018).
[2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. Id.
ANALYSIS
Jurisdiction
Victoria asserts that the juvenile court did not have subject
matter jurisdiction in this case and should have granted her
motion to dismiss.
Generally, a denial of a motion to dismiss is not a final
order. Herman Trust v. Brashear 711 Trust, 22 Neb. Ct. App. 758,
860 N.W.2d 431 (2015). We need not determine whether an
exception exists in juvenile proceedings where the motion
questions subject matter jurisdiction under the UCCJEA,
because the denial of Victoria’s motion to dismiss (order filed
August 31, 2017) is not the only order being appealed. See
In re Interest of Carmelo G., 296 Neb. 805, 896 N.W.2d 902
(2017) (appellate court not obligated to engage in analysis
that is not necessary to adjudicate case and controversy before
it). In this case, Victoria also appeals from the court’s order
filed on August 10, which, following what it treated as an
initial detention hearing, ordered that Kirsten remain in the
custody of DHHS and that her placement with her grandpar-
ents in North Dakota continue. Assuming that the court had
proper subject matter jurisdiction on August 10, that order
would have been a final, appealable order. See In re Interest
of Stephanie H. et al., 10 Neb. Ct. App. 908, 914, 639 N.W.2d
668, 675 (2002) (“[a]lthough an ex parte temporary deten-
tion order keeping a juvenile’s custody from his or her parent
for a short period of time is not final, an order under Neb.
Rev. Stat. § 43-254 (Cum. Supp. 2000) and § 43-247(3)(a)
after a hearing which continues to keep a juvenile’s custody
from the parent pending an adjudication hearing is final and
thus appealable”).
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IN RE INTEREST OF KIRSTEN H.
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[3,4] Subject matter jurisdiction is a court’s power to
hear and determine a case in the general class or category
to which the proceedings in question belong and to deal
with the general subject involved in the action or proceeding
before the court and the particular question which it assumes
to determine. In re Interest of Violet T., 286 Neb. 949, 840
N.W.2d 459 (2013). Lack of subject matter jurisdiction may
be raised at any time by any party or by the court sua sponte.
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899
N.W.2d 893 (2017). Therefore, although the August 10, 2017,
order (continuing custody and placement of Kirsten) would
ordinarily be final and appealable, we must still consider
whether the juvenile court had subject matter jurisdiction over
the proceedings.
Victoria states that at the time the present case was filed
on June 16, 2017, “the State of North Dakota was actively
exercising jurisdiction” over Kirsten and “made specific orders
that the case would remain open until July 1, when Kirsten
would return to Victoria’s care.” Brief for appellant at 14. She
claims that on June 16, the juvenile court (in Nebraska) lacked
jurisdiction over Kirsten under the UCCJEA. She also claims
the State of Nebraska lacked parens patriae power.
We agree that Nebraska could not exercise jurisdiction using
its parens patriae power because Kirsten was not present in
Nebraska at the time the juvenile proceedings were filed in
June 2017, nor anytime thereafter up to and including August
31 when the juvenile court overruled Victoria’s motion to
dismiss. In In re Interest of Violet T., 286 Neb. at 953, 840
N.W.2d at 463, the Nebraska Supreme Court recalled its previ-
ous decisions in which the court stated:
“‘The jurisdiction of a state to regulate the custody of
infants found within its territory does not depend upon
the domicile of the child, but it arises out of the power
that every sovereignty possesses as parens patriae to
every child within its borders to determine its status and
the custody that will best meet its needs and wants, and
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residence within the state suffices even though the domi-
cile may be in another jurisdiction.’”
(Emphasis in original.) Nebraska could not exercise jurisdic-
tion using parens patriae power.
[5] However, the UCCJEA must also be addressed when
determining jurisdiction in all child custody proceedings. See
Watson v. Watson, 272 Neb. 647, 724 N.W.2d 24 (2006) (stat-
ing jurisdiction over child custody proceedings is governed
by UCCJEA). The UCCJEA, § 43-1227(4), defines “[c]hild
custody proceeding” as “a proceeding in which legal custody,
physical custody, or visitation with respect to a child is an
issue. The term includes a proceeding for divorce, separation,
neglect, abuse, dependency, guardianship, paternity, termina-
tion of parental rights, and protection from domestic violence,
in which the issue may appear.”
We note that in its brief, the State cites to case law determin-
ing jurisdiction under the Nebraska Child Custody Jurisdiction
Act; however, that act was repealed in 2003, see Laws 2003,
L.B. 148, § 105, and is not helpful in our determination of
jurisdiction in the instant case.
Both Nebraska and North Dakota have adopted the
UCCJEA. See, §§ 43-1226 through 43-1266; N.D. Cent. Code
§§ 14-14.1-01 through 14-14.1-37 (2017). For the remainder of
this opinion, all the UCCJEA citations will be to the Nebraska
statutes unless otherwise noted. Nebraska has determined that
the UCCJEA is applicable to juvenile proceedings filed under
§ 43-247(3)(a). In re Interest of Maxwell T., 15 Neb. Ct. App. 47,
57, 721 N.W.2d 676, 686 (2006) (finding that “case brought
under § 43-247(3)(a) fits the definition of a ‘[c]hild custody
proceeding’ under the UCCJEA, see § 43-1227(4), and that
therefore, the UCCJEA is applicable”).
The UCCJEA, § 43-1238, addresses initial child custody
jurisdiction and provides in relevant part:
(a) Except as otherwise provided in section 43-1241
[temporary emergency jurisdiction], a court of this state
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has jurisdiction to make an initial child custody determi-
nation only if:
(1) this state is the home state of the child on the
date of the commencement of the proceeding or was
the home state of the child within six months before the
commencement of the proceeding and the child is absent
from this state but a parent or person acting as a parent
continues to live in this state.
See, also, N.D. Cent. Code § 14-14.1-12. “Initial deter-
mination means the first child custody determination con-
cerning a particular child.” § 43-1227(8); N.D. Cent. Code
§ 14-14.1-01(7). A “[c]hild custody determination means a
judgment, decree, or other order of a court providing for the
legal custody, physical custody, or visitation with respect to
a child. The term includes a permanent, temporary, initial,
and modification order.” § 43-1227(3); N.D. Cent. Code
§ 14-14.1-01(2). And
[h]ome state means the state in which a child lived with
a parent or a person acting as a parent for at least six
consecutive months immediately before the commence-
ment of a child custody proceeding. In the case of a child
less than six months of age, the term means the state in
which the child lived from birth with any of the persons
mentioned. A period of temporary absence of any of the
mentioned persons is part of the period.
§ 43-1227(7); N.D. Cent. Code § 14-14.1-01(6).
At the April 2017 North Dakota hearing (received into
evidence as exhibit 7 in the Nebraska hearing), Victoria testi-
fied that Kirsten was born in Hawaii in 2007. At some point,
they moved to North Dakota. While in North Dakota, Victoria
“started a divorce” in January 2009; Victoria’s father also testi-
fied that Victoria got a divorce from Garvin in North Dakota.
Then, in 2012, Victoria moved to Nebraska. Based on this
testimony, the initial child custody determination concern-
ing Kirsten was made in North Dakota because that is where
at least Kirsten and Victoria were living, and where Victoria
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and Garvin were divorced, and although that decree does
not appear in our record, it presumably addressed the legal
and physical custody of Kirsten, as well as visitation rights.
(Victoria’s father testified that “it stated in the divorce papers
that if [Garvin] went overseas during the summer, Kirsten
would either go to [Garvin’s] parents or us.”)
[6] A court which makes an initial child custody deter-
mination (in this case, North Dakota) will have exclusive,
continuing jurisdiction over child custody until certain deter-
minations are made pursuant to § 43-1239. The parties suggest
Kirsten’s “home state” status impacts jurisdiction. It is true that
Nebraska would have become Kirsten’s home state 6 months
after she and Victoria moved here in 2012. But there is some
question as to whether Nebraska was still Kirsten’s home state
at the time the juvenile petition was filed in Box Butte County
in June 2017, given that she had been living in North Dakota
since late July or early August 2016. The parties disagree about
whether Kirsten’s time in North Dakota can be considered a
“temporary absence” pursuant to § 43-1227(7). However, as
will be explained below, Kirsten’s home state in June 2017
is irrelevant because North Dakota had exclusive, continuing
jurisdiction at the time of the various juvenile court proceed-
ings in 2016 and 2017.
[7] As stated previously, North Dakota made the initial
child custody determination concerning Kirsten in Victoria
and Garvin’s divorce. Exclusive and continuing jurisdiction
remains with the court under the UCCJEA either until a deter-
mination is made under § 43-1239(a) or until the court declines
to exercise jurisdiction under § 43-1244 on the basis of being
an inconvenient forum. See Watson v. Watson, 272 Neb. 647,
724 N.W.2d 24 (2006). Section 43-1239 states:
(a) Except as otherwise provided in section 43-1241
[temporary emergency jurisdiction], a court of this state
which has made a child custody determination consistent
with section 43-1238 [initial child custody determina-
tion] or 43-1240 [jurisdiction to modify determination]
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has exclusive, continuing jurisdiction over the determina-
tion until:
(1) a court of this state determines that neither the
child, nor the child and one parent, nor the child and a
person acting as a parent have a significant connection
with this state and that substantial evidence is no longer
available in this state concerning the child’s care, protec-
tion, training, and personal relationships; or
(2) a court of this state or a court of another state deter-
mines that the child, the child’s parents, and any person
acting as a parent do not presently reside in this state.
(b) A court of this state which has made a child custody
determination and does not have exclusive, continuing
jurisdiction under this section may modify that determina-
tion only if it has jurisdiction to make an initial determi-
nation under section 43-1238.
See, also, N.D. Cent. Code § 14-14.1-13 (exclusive, continuing
jurisdiction). There is nothing in our record to demonstrate that
the North Dakota court made the requisite determination under
either subsection (a)(1) or subsection (a)(2) of § 43-1239. Nor
is there evidence that the North Dakota court declined to exer-
cise jurisdiction under § 43-1244 on the basis that it was an
inconvenient forum. See, also, N.D. Cent. Code § 14-14.1-18
(inconvenient forum).
To the contrary, the North Dakota court affirmatively exer-
cised jurisdiction over Kirsten’s custody as evidenced by its
May 2017 order. In that order, which was entered after an evi-
dentiary hearing, the North Dakota court found Kirsten came
“within the provisions of the Uniform Juvenile Court Act,” see
N.D. Cent. Code §§ 27-20-01 through 27-20-60 (2016), and
was a “deprived” child. See N.D. Cent. Code § 27-20-03(1)(a)
(juvenile court has jurisdiction over proceedings in which
child alleged to be deprived). The court found Kirsten was
a “deprived” child, in that she was a child “without proper
parental care, control, subsistence, education as required by
law, or other care or control necessary for the child’s physical,
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mental, or emotional health, or morals and the deprivations is
not due primarily to the lack of financial means of the parent
or custodian of the child.” See N.D. Cent. Code § 27-20-02(8)
(defining “‘[d]eprived child’”). The May 2017 order of the
North Dakota court is similar in effect to a Nebraska juvenile
court exercising jurisdiction over a juvenile after finding that
the juvenile comes within the meaning of § 43-247(3)(a). The
North Dakota court ordered that
pending further order, the child, Kirsten . . . , be and is
hereby placed under the full care, custody, and control of
the Executive Director of Foster County Social Services,
or her successor, for placement and care, for a period dat-
ing from February 13, 2017 until July 1st, 2017 when she
shall be returned to [Victoria’s] home in Nebraska . . . and
the petitions will be dismissed.
Although it appears from its May order that the North Dakota
court intended that the juvenile petitions would be dismissed
on July 1, there is no evidence in our record that the North
Dakota proceedings have, in fact, been dismissed. (We note
that at the August 10 hearing in Nebraska, the State’s counsel
said there was no ongoing case in North Dakota.) See In re
Interest of Lawrence H., 16 Neb. Ct. App. 246, 743 N.W.2d 91
(2007) (attorney’s assertions at trial are not to be treated as evi-
dence). Also at the August 10 hearing, a North Dakota family
service specialist testified that her supervisor told her that since
the Nebraska court had signed an order on June 17, the North
Dakota order was “no longer valid.” Despite counsel’s and the
witness’ assertions as to the status of the North Dakota pro-
ceedings, there is nothing in our record from the North Dakota
court to show that its proceedings have been dismissed.
Notably, at the time the juvenile petition was filed in
Nebraska in June 2017, there was an existing proceeding in
North Dakota, and as stated previously, North Dakota was prop-
erly exercising jurisdiction under the UCCJEA. The UCCJEA
has provisions regarding “[s]imultaneous proceedings.” See
§ 43-1243. Section 43-1243 provides in part:
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25 Nebraska A ppellate R eports
IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
(a) Except as otherwise provided in section 43-1241
[temporary emergency jurisdiction], a court of this state
may not exercise its jurisdiction under sections 43-1238
to 43-1247 if, at the time of the commencement of the
proceeding, a proceeding concerning the custody of the
child has been commenced in a court of another state
having jurisdiction substantially in conformity with the
Uniform Child Custody Jurisdiction and Enforcement Act,
unless the proceeding has been terminated or is stayed by
the court of the other state because a court of this state is
a more convenient forum under section 43-1244.
(b) Except as otherwise provided in section 43-1241,
a court of this state, before hearing a child custody pro-
ceeding, shall examine the court documents and other
information supplied by the parties pursuant to section
43-1246. If the court determines that a child custody pro-
ceeding has been commenced in a court in another state
having jurisdiction substantially in accordance with the
act, the court of this state shall stay its proceeding and
communicate with the court of the other state. If the court
of the state having jurisdiction substantially in accordance
with the act does not determine that the court of this state
is a more appropriate forum, the court of this state shall
dismiss the proceeding.
(Emphasis supplied.) Clearly, under § 43-1243(a), Nebraska
could not exercise jurisdiction when the juvenile petition
was filed in June 2017, because the North Dakota proceed-
ing had not been terminated or stayed by the North Dakota
court on the basis that Nebraska was a more convenient
forum under § 43-1244(a). And Nebraska did not comply with
§ 43-1243(b), which required it, prior to hearing, to stay its
juvenile proceeding and communicate with the North Dakota
court. The juvenile court acknowledged the lack of com-
munication when, at the August 31 hearing on the motion to
dismiss, it said, “What, perhaps, would have been better is
if there would have been some communication between the
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IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
North Dakota Court and the Nebraska Court. That didn’t hap-
pen for whatever reason.”
We note that the State, in its June 2017 juvenile petition, did
not comply with § 43-1246, which required certain information
(including knowledge of any other proceeding that could affect
the current proceeding) to be contained in the initial pleading
or attached affidavit. However, the same day the juvenile peti-
tion was filed, the State also filed an ex parte motion for tem-
porary custody. Attached and incorporated into that motion was
an affidavit from an investigator with the Nebraska Attorney
General’s office, and that affidavit made several references
to the North Dakota case, including that it was “pending.”
Accordingly, the juvenile court should have been immediately
aware of a potential jurisdiction problem.
We take a moment to make an observation. As stated pre-
viously, it appears from its May 2017 order that the North
Dakota court intended that the juvenile petitions would be
dismissed on July 1. However, there is no evidence in our
record that the North Dakota juvenile proceedings were actu-
ally dismissed. But even if they were, North Dakota would
still have exclusive and continuing jurisdiction under the
UCCJEA because it made the initial child custody determi-
nation concerning Kirsten in Victoria and Garvin’s divorce.
And its exclusive and continuing jurisdiction continues either
until a determination is made under § 43-1239(a) or until the
court declines to exercise jurisdiction under § 43-1244 on the
basis of being an inconvenient forum. We note that, among
other reasons, the purpose of the UCCJEA is to promote
cooperation between courts of other states so that a custody
determination can be rendered in a state best suited to decide
the case in the interest of the child. See Carter v. Carter, 276
Neb. 840, 758 N.W.2d 1 (2008) (setting forth six purposes
for which UCCJEA was enacted). In the present matter, it
is evident that both North Dakota and Nebraska have an
interest in protecting Kirsten. However, without an order or
other evidence showing that a determination was made by a
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IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
North Dakota court as discussed above, Nebraska was without
jurisdiction over child custody proceedings related to Kirsten
under the UCCJEA.
[8-10] Based on the record before us, the North Dakota court
had exclusive and continuing jurisdiction of child custody
proceedings involving Kirsten when the June 2017 juvenile
petition was filed in Box Butte County. North Dakota affirma-
tively exercised such jurisdiction over Kirsten’s custody as evi-
denced by its May 2017 order. There is nothing in our record
to show that the North Dakota court declined jurisdiction on
the basis that Nebraska was a more convenient forum. And the
Nebraska court failed to comply with § 43-1243(b), once the
current juvenile proceedings were commenced. Accordingly,
the juvenile court for Box Butte County did not have subject
matter jurisdiction under the UCCJEA at the time of its orders
on August 10 and 31, 2017. As our Nebraska Supreme Court
has stated:
A court action taken without subject matter jurisdiction
is void. A void order is a nullity which cannot constitute
a judgment or final order that confers appellate jurisdic-
tion on this court. But an appellate court has the power
to determine whether it lacks jurisdiction over an appeal
because the lower court lacked jurisdiction to enter the
order; to vacate a void order; and, if necessary, to remand
the cause with appropriate directions.
In re Interest of Trey H., 281 Neb. 760, 766-67, 798 N.W.2d
607, 613 (2011) (determining that because juvenile court’s
order was void, DHHS had not appealed from final order or
judgment; juvenile court’s order vacated and appeal dismissed
for lack of jurisdiction). Because the juvenile court did not
have jurisdiction to issue orders on August 10 and 31, those
orders are void. We vacate those orders, dismiss the appeal,
and remand the cause to the juvenile court with directions to
comply with the UCCJEA, including § 43-1243(b).
For the sake of completeness, we note that the juvenile
court of Box Butte County did not have temporary emergency
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IN RE INTEREST OF KIRSTEN H.
Cite as 25 Neb. Ct. App. 909
jurisdiction under § 43-1241, because Kirsten was not “pres-
ent” in Nebraska. Section 43-1241(a) provides:
A court of this state has temporary emergency jurisdiction
if the child is present in this state and the child has been
abandoned or it is necessary in an emergency to protect
the child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment
or abuse.
The juvenile petition filed on June 16, 2017, specifically
states that Kirsten is “[l]iving with” her grandparents in North
Dakota. And the affidavit attached to and incorporated into the
State’s ex parte motion for temporary custody also specifically
states that Kirsten “currently resides . . . in . . . North Dakota
with her maternal grandparents.” Because Kirsten was not
“present” in Nebraska, the juvenile court of Box Butte County
could not exercise temporary emergency jurisdiction under
§ 43-1241.
R emaining Assignments of Error
[11] Because our resolution of the jurisdiction issue is dis-
positive of this appeal, we cannot address Victoria’s remaining
assignments of error. When a lower court does not have juris-
diction over the case before it, an appellate court also lacks
jurisdiction to review the merits of the claim. Armour v. L.H.,
259 Neb. 138, 608 N.W.2d 599 (2000).
CONCLUSION
For the reasons stated above, we find that the juvenile court
of Box Butte County did not have subject matter jurisdiction
at the time of its orders on August 10 and 31, 2017, and that
therefore, those orders are void. We vacate those orders, dis-
miss the appeal, and remand the cause with directions to com-
ply with the UCCJEA, including § 43-1243(b).
Orders vacated, appeal dismissed, and
cause remanded with directions.