In re Interest of Kenneth B. , 25 Neb. Ct. App. 578 ( 2018 )

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IN RE INTEREST OF KENNETH B. ET AL.
Cite as 25 Neb. Ct. App. 578
In re I nterest of
K enneth B., Jr., et al.,
children under 18 years of age.
State of Nebraska, appellee,
v. K enneth B., appellant.
___ N.W.2d ___
Filed February 27, 2018. No. A-17-459.
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. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken.
5. Final Orders: Appeal and Error. 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.
6. Juvenile Courts: Appeal and Error. Juvenile court proceedings are
special proceedings for purposes of appeal.
7. Words and Phrases. A substantial right is an essential legal right, not a
mere technical right.
8. Juvenile Courts: Parental Rights: Parent and Child: Time: Final
Orders. Whether a substantial right of a parent has been affected by an
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IN RE INTEREST OF KENNETH B. ET AL.
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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.
9. Juvenile Courts: Final Orders: Time: Appeal and Error. In juvenile
cases, 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 substan-
tial right and does not extend the time in which the original order may
be appealed.
10. Juvenile Courts: Parental Rights: Parent and Child: Final Orders:
Appeal and Error. An order that continues prior dispositional orders
but changes the permanency objective from family reunification to
another objective is not a final, appealable order unless the parent’s
ability to achieve rehabilitation and family reunification has been
clearly eliminated.
Appeal from the Separate Juvenile Court of Douglas County:
Elizabeth Crnkovich, Judge. Appeal dismissed.
Jane M. McNeil for appellant.
Donald W. Kleine, Douglas County Attorney, and Jennifer
C. Clark for appellee.
Maureen K. Monahan, guardian ad litem.
Moore, Chief Judge, and Inbody and Bishop, Judges.
Inbody, Judge.
INTRODUCTION
Kenneth B., the biological father to Derrek B. and Kenneth
B., Jr. (Kenneth Jr.), appeals the order of the Douglas County
Separate Juvenile Court changing the permanency objective
for the children from reunification to guardianship. Kenneth
does not appeal the order as it relates to his third child, Kylie
B. Because we conclude the order changing the permanency
objective is not a final, appealable order, we dismiss the
appeal for lack of jurisdiction.
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IN RE INTEREST OF KENNETH B. ET AL.
Cite as 25 Neb. Ct. App. 578
BACKGROUND
In September 2014, Kenneth was given leave to intervene in
juvenile court proceedings involving four minor children and
their mother, Kari S. Genetic testing confirmed that three of
those four children were Kenneth’s biological children, namely
Derrek, Kenneth Jr., and Kylie. At that time, the children
were in the temporary custody of the Department of Health
and Human Services (DHHS) with placement to exclude the
parental home. In January 2015, the State filed a supplemen-
tal petition alleging that Derrek, Kenneth Jr., and Kylie were
children within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Cum. Supp. 2014) as a result of Kenneth’s lack of parental
care. The petition alleged that Kenneth was incarcerated; had
failed to provide the children with safe, stable, and appropri-
ate housing; and had failed to provide proper parental care,
support, and supervision to the children. Following a hearing
on the supplemental petition, the children were adjudicated as
children within the meaning of § 43-247(3)(a). Kenneth subse-
quently appealed, and this court affirmed the juvenile court’s
determination in a memorandum opinion filed December 21,
2015, in case No. A-15-557.
In January 2016, the juvenile court entered an order setting
the permanency objective as a concurrent plan of “reunifi-
cation/adoption.” The State moved to terminate Kenneth’s
parental rights in June 2016 but dismissed the petition without
prejudice in September. Following another permanency plan-
ning hearing in October 2016, the permanency plan was reuni-
fication. In the October permanency planning order, Kenneth
was ordered to participate in supervised visitation and to par-
ticipate in family therapy, obtain safe housing, and follow the
rules of his parole. The court further ordered that “a Family
Group Conference be held to explore permanency through
guardianship.”
The juvenile court held its latest review and permanency
planning hearing in March 2017, wherein Lindsey Witt of
DHHS gave oral summaries on the condition and progress of
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IN RE INTEREST OF KENNETH B. ET AL.
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the children and parents. Witt provided DHHS’ recommenda-
tion that Kenneth “continue to participate in services and show
. . . ongoing consistency” but that the permanency objective be
changed to “guardianship for Kylie, [Kenneth Jr.], and Derrek
with their grandfather.” In its submitted court report, DHHS
recommended a course of action similar to that implemented
from the October 2016 order:
[Kenneth] shall:
1. Participate in supervised visitation with Kylie,
Derrek, and [Kenneth Jr.], as recommended by the chil-
dren’s therapists.
2. Participate in family therapy, as recommended by
the children’s therapists.
3. Maintain safe and stable housing and a legal source
of income.
4. Follow all rules and regulations of Parole.
5. This case [will] be reviewed in four months.
In its March 2017 permanency planning order, the juvenile
court adopted DHHS’ recommendation and changed the per-
manency objective for Kenneth’s three children from reunifi-
cation to guardianship, stating that “the permanency objective
is a guardianship for [Derrek, Kenneth Jr., and Kylie].” In
support of this determination, the order stated that “it would be
contrary to the health, safety and welfare of the minor children
. . . to be returned home at this time.” The court found that
reasonable efforts had been made to return the children to the
home “and to finalize permanency to include[,] but not [be]
limited to[,] evaluations, residential treatment, family therapy,
individual therapy, bus tickets, placement and case manage-
ment.” During the March review and permanency planning
hearing, the juvenile court explained:
I am adopting the recommendation of [DHHS]. The sin-
gular permanency plan in this case at this time is one of
guardianship.
Now, [Kenneth], in terms of your relationship with
the kids, you have this choice: You can agree to another
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IN RE INTEREST OF KENNETH B. ET AL.
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family group conference with yourself and with the foster
parents to see if, on your own, you can reach some agree-
ment as to how shall we visit. . . . Or [I] can . . . decide
how much contact you get.
The March 2017 order also scheduled a subsequent review
and permanency planning hearing to be held 5 months later in
August. Kenneth currently appeals from the March order.
ASSIGNMENT OF ERROR
Kenneth assigns, rephrased and consolidated, that the juve-
nile court erred by modifying the permanency objective from
reunification to guardianship.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings. In re Interest of Carmelo G., 296 Neb. 805,
896 N.W.2d 902 (2017).
[2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d
247 (2017).
ANALYSIS
Kenneth appeals the March 2017 permanency planning
order. Specifically, he challenges the juvenile court’s chang-
ing the permanency goal from reunification to guardianship
for Derrek and Kenneth Jr. Kenneth argues he was denied due
process and a fundamentally fair procedure because he was not
given notice that DHHS no longer supported its own written
case plan and court report and because the State did not meet
its burden to show that the written case plan and court report
were not in the children’s best interests. Kenneth further argues
the change in the permanency objective was not supported by
sufficient evidence.
[3,4] In a juvenile case, as in any other appeal, before reach-
ing the legal issues presented for review, it is the duty of an
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appellate court to determine whether it has jurisdiction over the
matter before it. In re Interest of Becka P. et al., supra. 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. In re Interest of Darryn C., 295 Neb. 358, 888 N.W.2d
169 (2016).
[5,6] 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 spe-
cial proceeding, and (3) an order affecting a substantial right
made on summary application in an action after judgment
is rendered. In re Interest of Karlie D., 283 Neb. 581, 811
N.W.2d 214 (2012). Juvenile court proceedings are spe-
cial proceedings for purposes of appeal. In re Interest of
LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016). Thus,
we must decide whether the juvenile court’s order changing
the permanency plan to guardianship affected a substan-
tial right.
[7-10] A substantial right is an essential legal right, not a
mere technical right. Id. Whether a substantial right of a par-
ent 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. In re Interest
of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015).
This determination is fact specific and should be undertaken
on a case-by-case basis. Id. Additionally, in juvenile cases,
where an order from a juvenile court is already in place and a
subsequent order merely extends the time for which the pre-
vious 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. In re Guardianship
of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289 (2000).
Thus, an order that continues prior dispositional orders but
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changes the permanency objective from family reunifica-
tion to another objective is not a final, appealable order
unless the parent’s ability to achieve rehabilitation and family
reunification has been clearly eliminated. See In re Interest of
LeVanta S., supra.
In In re Interest of Tayla R., 17 Neb. Ct. App. 595, 767 N.W.2d
127 (2009), this court determined that a review order which
changed the permanency plan goal from reunification to adop-
tion did not affect a substantial right, because the order imple-
mented a rehabilitation plan that contained the same services
as the previous order, did not change the mother’s visitation
status, and implicitly provided the mother an opportunity for
reunification by complying with the terms of the rehabilita-
tion plan. However, in In re Interest of Diana M. et al., 20
Neb. Ct. App. 472, 825 N.W.2d 811 (2013), we found the juvenile
court’s modification of a permanency goal from reunification
to guardianship/adoption to be appealable, because the order
also ceased all reasonable efforts affecting the mother’s right
to reunification. Similarly, the Nebraska Supreme Court in
In re Interest of Octavio B. et al., supra, found that an order
changing the permanency goal from reunification to adoption
did affect a substantial right as the record indicated that the
mother would not be given further opportunity for compliance
with the case plan.
The present case presents a similar situation to that of In
re Interest of Tayla R., supra. The juvenile court changed the
children’s permanency objective from reunification to guard-
ianship in its March 2017 order by stating that “the perma-
nency objective is a guardianship for [Derrek, Kenneth Jr.,
and Kylie].” In support of this determination, the order stated
that “it would be contrary to the health, safety and welfare
of the minor children . . . to be returned home at this time.”
(Emphasis supplied.) The March order was silent on the issue
of services available to Kenneth. In the October 2016 order,
however, Kenneth was ordered to participate in supervised
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IN RE INTEREST OF KENNETH B. ET AL.
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visitation and family therapy as recommended by the chil-
dren’s therapists, obtain safe and adequate housing, and follow
the rules and regulations of his parole. The March 2017 order
did not explicitly cease these services and obligations ordered
pursuant to the October 2016 order.
During the March 2017 review and permanency planning
hearing, Witt provided DHHS’ recommendation that Kenneth
“continue to participate in services and show . . . ongoing
consistency” but that the permanency objective be changed to
“guardianship for Kylie, [Kenneth Jr.], and Derrek with their
grandfather.” In its accompanying court report, DHHS recom-
mended a course of action similar to that implemented from the
October 2016 order:
[Kenneth] shall:
1. Participate in supervised visitation with Kylie,
Derrek, and [Kenneth Jr.], as recommended by the chil-
dren’s therapists.
2. Participate in family therapy, as recommended by
the children’s therapists.
3. Maintain safe and stable housing and a legal source
of income.
4. Follow all rules and regulations of Parole.
5. This case [will] be reviewed in four months.
The juvenile court adopted the DHHS recommendation during
the hearing, explaining:
I am adopting the recommendation of [DHHS]. The sin-
gular permanency plan in this case at this time is one of
guardianship.
Now, [Kenneth], in terms of your relationship with
the kids, you have this choice: You can agree to another
family group conference with yourself and with the foster
parents to see if, on your own, you can reach some agree-
ment as to how shall we visit. . . . Or [I] can . . . decide
how much contact you get.
(Emphasis supplied.)
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IN RE INTEREST OF KENNETH B. ET AL.
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Kenneth argues the juvenile court, in stating that the “singu-
lar permanency plan” is guardianship during the March 2017
hearing, changing the permanency goal in the March order to
guardianship, and not providing any further written guidance
on whether rehabilitation and reunification remain possible
for him and Derrek and Kenneth Jr. effectively eliminated his
ability to rehabilitate and reunify. However, the March order
does not foreclose Kenneth’s ability to seek rehabilitation and
reunification with Derrek and Kenneth Jr. The October 2016
order directed Kenneth to participate in supervised visitation
and family therapy, obtain safe and adequate housing, and fol-
low the rules and regulations of his parole. The March 2017
order did not order such directions to cease. Instead, at the
March hearing, the juvenile court stated it was adopting the
DHHS recommendations, including that Kenneth continue
to receive services and perform his obligations. It is evident
that the services, visitation, and obligations the juvenile court
previously ordered concerning Kenneth were to continue after
the March order.
Moreover, the juvenile court included qualifying language
during its oral pronouncement at the March 2017 hearing of
the permanency objective, saying that “[t]he singular perma-
nency plan in this case at this time is one of guardianship.”
(Emphasis supplied.) The juvenile court again qualified its
finding that immediate reunification was inappropriate in its
March order by writing that “it would be contrary to the health,
safety and welfare of the minor children . . . to be returned
home at this time.” (Emphasis supplied.) The use of such
qualifying language taken together with the juvenile court’s
ordering that a further review hearing be held 5 months after
its March 2017 order implies rehabilitation and reunification
remained a possibility. Therefore, because the March order
merely changed the permanency objective from family reunifi-
cation to guardianship and did not eliminate Kenneth’s ability
to achieve rehabilitation and family reunification, it is not a
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final, appealable order. See In re Interest of Tayla R., 17 Neb.
App. 595, 767 N.W.2d 127 (2009). Accordingly, we are with-
out jurisdiction to review Kenneth’s appeal of the March order
and we dismiss the appeal.
CONCLUSION
Although the March 2017 order changed the permanency
objective from reunification to guardianship, DHHS was to
continue to provide services to Kenneth as the order did not
cease all reasonable efforts affecting his right to reunification.
Therefore, the order is not a final, appealable order and we are
without jurisdiction to review Kenneth’s appeal.
A ppeal dismissed.