In re Interest of Mya C. & Sunday C. , 20 Neb. Ct. App. 916 ( 2013 )

Decisions of the Nebraska Court of Appeals
916 20 NEBRASKA APPELLATE REPORTS
In re I nterest ofMya C. and Sunday C.,
children under 18 years of age.
State of Nebraska, appellee, v. Nyamal M., appellant.
___ N.W.2d ___
Filed June 25, 2013. No. A-12-811.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, its determination is a matter of law, which
requires an appellate court to reach a conclusion independent from the decisions
made by the lower courts.
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 tribunal 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: Final Orders. Juvenile court proceedings are special
proceedings.
7. Final Orders: Words and Phrases. A substantial right is an essential legal right,
not a mere technical right.
8. Juvenile Courts: Final Orders: Constitutional Law: Parental Rights. The
substantial right of a parent in juvenile proceedings is a parent’s fundamental,
constitutional right to raise his or her child.
9. Juvenile Courts: Words and Phrases. The State’s right in juvenile cases
is derived from its parens patriae interest in the proceedings. This means, in
essence, that the State has a right to protect the welfare of its resident children.
10. Juvenile Courts: Final Orders: Parental Rights. Whether a substantial right of
a parent has been affected by an order entered in a juvenile proceeding is depen-
dent upon both the object of the order and the length of time over which the par-
ent’s relationship with the juvenile may reasonably be expected to be disturbed
by the order.
11. Juvenile Courts: Final Orders: 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 substantial right and does not extend the time in which
the original order may be appealed.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MYA C. & SUNDAY C. 917
Cite as 20 Neb. Ct. App. 916
12. ____: ____: ____. A dispositional order which merely continues a previous deter-
mination of the juvenile court is not an appealable order.
Appeal from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Appeal dismissed.
Matt Catlett for appellant.
Joe Kelly, Lancaster County Attorney, and Daniel J. Zieg
for appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Moore, Judge.
Nyamal M., the mother of Mya C. and Sunday C., appeals
from a dispositional order entered by the separate juvenile
court of Lancaster County. Nyamal challenges the provision in
the order that required her to actively pursue either a diploma
through the GED program or a high school diploma. We con-
clude that the dispositional order is not an appealable order
and, therefore, dismiss the appeal for lack of jurisdiction.
FACTUAL BACKGROUND
Nyamal is the mother of Mya, born in December 2006, and
Sunday, born in January 2008. On September 24, 2010, Mya
and Sunday were adjudicated to be children as described in
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). The reason
for adjudication was a lack of proper care due to the faults or
habits of Nyamal. At the time of the adjudication, Nyamal was
a minor and was herself a ward of the State under a separate
juvenile court case.
On December 7, 2010, the juvenile court held the initial
dispositional hearing. Mya and Sunday were placed in the tem-
porary legal custody of the Department of Health and Human
Services, with placement with Nyamal in the same foster home
in which Nyamal was placed through her juvenile court case.
The primary permanency plan was family preservation, with
reunification as the alternative plan. Among the provisions of
its order, issued December 10, the court required Nyamal to
participate in therapy, seek part-time employment to provide
financial support for her children, and cooperate with family
Decisions of the Nebraska Court of Appeals
918 20 NEBRASKA APPELLATE REPORTS
support services. The court also ordered that Nyamal “shall
continue her education as [sic] Lincoln High School. [She]
should not switch her education plans without approval from
the Department of Health and Human Services.” No appeal
was taken from this order.
The juvenile court has held three dispositional review hear-
ings since the initial dispositional order. For purposes of this
appeal, the first two review orders, dated June 7, 2011, and
December 8, 2011, contained provisions that were essentially
the same as those in the original order. Those provisions
included a requirement that Nyamal continue her education.
In its orders, the court specified that Nyamal was required to
“continue with her education at Bryan Community School.” No
appeals were taken from those orders.
When the matter came for review hearing on May 24,
2012, Nyamal had reached her 19th birthday. Nyamal had
also recently begun attending GED classes. Because there was
insufficient time to conclude the hearing that day, the hearing
was continued to July 31. At the time of the continued hear-
ing, Nyamal had obtained temporary full-time employment and
decided to stop attending GED classes. Nyamal testified that
she would continue her education later in life, but did not have
time to pursue it as of the time of the hearing.
At the conclusion of the testimony, the court found the rec-
ommendations contained in the guardian ad litem’s report to
be in the children’s best interests and approved those recom-
mendations. The court also ordered Nyamal to “actively pursue
a GED or a high school diploma.” The court noted that this
requirement was relevant to Nyamal’s ability to provide for her
children. The court stated that even though Nyamal had found
current employment, it was important that she have a fallback
plan. Following this hearing, the court issued an order on
August 9, 2012, from which Nyamal now appeals.
ASSIGNMENT OF ERROR
Nyamal assigns that the juvenile court erred when it ordered
that she actively pursue either a diploma through the GED
program or a high school diploma as part of its rehabilita-
tive plan.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MYA C. & SUNDAY C. 919
Cite as 20 Neb. Ct. App. 916
STANDARD OF REVIEW
[1] Juvenile cases are reviewed de novo on the record, and
an appellate court is required to reach a conclusion indepen-
dent of the juvenile court’s findings. In re Interest of Diana M.
et al., 20 Neb. Ct. App. 472, 825 N.W.2d 811 (2013).
[2] When a jurisdictional question does not involve a factual
dispute, its determination is a matter of law, which requires
an appellate court to reach a conclusion independent from the
decisions made by the lower courts. In re Interest of Sarah K.,
258 Neb. 52, 601 N.W.2d 780 (1999).
ANALYSIS
[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
appellate court to determine whether it has jurisdiction over the
matter before it. In re Interest of Diana M. et al., supra. For an
appellate court to acquire jurisdiction of an appeal, there must
be a final order entered by the tribunal from which the appeal
is taken. Id.
[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 special pro-
ceeding, 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). It has long been held that juvenile court proceedings
are special proceedings. Id. Therefore, we must determine
whether the juvenile court’s order affected one of Nyamal’s
substantial rights.
[7-10] A substantial right is an essential legal right, not a
mere technical right. In re Interest of Sarah K., supra. The
substantial right of a parent in juvenile proceedings is a par-
ent’s fundamental, constitutional right to raise his or her child.
In re Interest of Karlie D., supra. The State’s right in juvenile
cases is derived from its parens patriae interest in the pro-
ceedings. This means, in essence, that the State has a right to
protect the welfare of its resident children. Id. The Nebraska
Supreme Court has made it clear that the question of whether
Decisions of the Nebraska Court of Appeals
920 20 NEBRASKA APPELLATE REPORTS
a substantial right of a parent has been affected by an order
entered in a juvenile proceeding is dependent upon both the
object of the order and the length of time over which the par-
ent’s relationship with the juvenile may reasonably be expected
to be disturbed by the order. See, In re Interest of R.G., 238
Neb. 405, 470 N.W.2d 780 (1991), disapproved on other
grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d
350 (1998); In re Interest of Tayla R., 17 Neb. Ct. App. 595, 767
N.W.2d 127 (2009).
[11,12] Nevertheless, 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 appli-
cable, 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. In re Interest of Tayla R., supra. In
other words, a dispositional order which merely continues a
previous determination of the juvenile court is not an appeal-
able order. See In re Interest of Diana M. et al., supra.
Nyamal argues that the provision of the latest dispositional
order requiring her to obtain her GED diploma or high school
diploma affects a substantial right. She urges us to find that
the rule stated above regarding continuing orders should not
apply in this case. First, she argues that there is a clear inter-
vening circumstance in this case that breaks the chain of
continuity between the dispositional orders. Nyamal reached
her 19th birthday on December 17, 2011, with the result that
the juvenile court’s jurisdiction in her own docketed case had
ended. She argues that “‘aging out’” of the system after the
December 8, 2011, order and before the August 9, 2012, order
breaks the chain of continuity between the orders. Reply brief
for appellant at 2. She contends such a break should allow
her to appeal from the August 9 order. In addition, Nyamal
argues that the December 8, 2011, and August 9, 2012, orders
are not the same. She contends that an order to “continue
with her education at Bryan Community School” is differ-
ent from being required to “actively pursue a GED or a high
school diploma.”
We decline Nyamal’s suggestion that we carve out an excep-
tion in this case to the rule prohibiting appeals from orders
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF MYA C. & SUNDAY C. 921
Cite as 20 Neb. Ct. App. 916
which are a continuation of previous determinations of the
court. The juvenile court has ordered Nyamal to continue
with her education in all of its dispositional orders. Nyamal
argues that because she is now an adult, the education provi-
sion is not reasonable or material to the court’s jurisdictional
basis over her children and has no relationship to the goal of
reunifying her with her children. See In re Interest of T.T., 18
Neb. Ct. App. 176, 779 N.W.2d 602 (2009) (plan for rehabilita-
tion to correct underlying conditions leading to adjudication
must be reasonably related to objective of reunifying parent
with children). However, Nyamal was not prohibited from
making this argument in connection with the previous orders
prior to her 19th birthday. Although Nyamal’s circumstances
have arguably changed since the original dispositional order,
the education provisions have continued and we find no justi-
fication or authority for creating an exception to the jurisdic-
tional prohibition.
Additionally, while the subsequent orders changed the loca-
tion or method of obtaining such education, the orders are
essentially the same; that is to say, Nyamal was required to
work toward the equivalent of a high school education. When
a subsequent order merely repeats the essential terms of a prior
order, the order is not appealable. See In re Interest of Tayla
R., 17 Neb. Ct. App. 595, 767 N.W.2d 127 (2009). We conclude
that the August 9, 2012, order is merely a continuation of the
original December 10, 2010, dispositional order. Therefore,
any appeal to the court’s education requirement should have
been made within the applicable period after the December 10
order. The current appeal is an impermissible collateral attack
on a prior judgment.
CONCLUSION
The juvenile court order requiring Nyamal to actively pursue
either a diploma through the GED program or a high school
diploma was a continuation of the prior orders. Therefore, it is
not an appealable order. This appeal must be dismissed for lack
of jurisdiction.
Appeal dismissed.