In re Interest of LeVanta S. ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/02/2016 08:08 AM CST
- 151 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151In re I nterest of LeVanta S., a child
under 18 years of age.
State of Nebraska, appellee and cross-appellee,
v. Patricia B., appellant, and Calvin S.,
appellee and cross-appellant.
In re Interest of LeRonn S., a child
under 18 years of age.
State of Nebraska, appellee and cross-appellee,
v. Patricia B., appellant, and Calvin S.,
appellee and cross-appellant.
___ N.W.2d ___
Filed December 2, 2016. Nos. S-15-909, S-15-910.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings. When the evidence is in conflict,
however, an appellate court may give weight to the fact that the lower
court observed the witnesses and accepted one version of the facts over
the other.
3. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. Appellate
courts in Nebraska have jurisdiction to hear appeals from final orders
issued by juvenile courts in the same manner as appeals from the dis-
trict courts.
4. Final Orders: Appeal and Error. An order that affects a substantial
right made in a special proceeding is a final order.
5. Juvenile Courts: Appeal and Error. Juvenile court proceedings are
special proceedings for purposes of appeal.
6. Words and Phrases. A substantial right is an essential legal right, not a
mere technical right.
- 152 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 1517. Juvenile Courts: Parental Rights: Parent and Child: Time: Final
Orders: Appeal and Error. When determining whether a juvenile court
order affects a substantial right of a parent to raise his or her child, an
appellate court considers the object of the order as well as the length of
time over which the parent’s relationship with the child may reasonably
be expected to be disturbed.
8. Juvenile Courts: Minors. Nebraska law requires the creation of perma-
nency plans for every juvenile placed in out-of-home care and requires
juvenile courts to hold a hearing on the plan.
9. Juvenile Courts: Judgments: Parental Rights: Adoption: Guardians
and Conservators. The juvenile court’s order on a permanency plan
must include whether the objective is for the juvenile to be returned to
the parent, referred for a termination-of-parental-rights filing, placed for
adoption, or referred for a guardianship.
10. Parental Rights. Nebraska law requires reasonable efforts to be made to
reunify families after a juvenile is placed in out-of-home care.
11. Parental Rights: Adoption: Guardians and Conservators. Reasonable
efforts toward reunification may be made concurrently with a plan for
adoption or guardianship, but the objective of family preservation and
reunification must take priority over the other objectives.
12. Guardians and Conservators: Minors. The first requirement for estab-
lishment of a permanent guardianship is that the juvenile be adjudicated
under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015).
13. Parental Rights. An adjudication of a juvenile under Neb. Rev. Stat.
§ 43-247(3)(a) (Supp. 2015) can be a basis for termination of parental
rights if subsequent reasonable efforts to preserve and reunify the family
have failed. But an adjudication under § 43-247(3)(c) is not a ground for
termination under Neb. Rev. Stat. § 43-292 (Reissue 2016).
14. Guardians and Conservators: Minors. Pursuant to Nebraska’s per-
manent juvenile guardianship statute, Neb. Rev. Stat. § 43-1312.01(Reissue 2016), an adjudication under Neb. Rev. Stat. § 43-247(3)(a)
(Supp. 2015) is a requirement for establishing a guardianship.
15. Juvenile Courts: Jurisdiction: Mental Health. The only basis for the
court’s jurisdiction in a case under Neb. Rev. Stat. § 43-247(3)(c) (Supp.
2015) is that the juvenile is mentally ill and dangerous.
16. Parental Rights: Due Process. The absence of an opportunity for par-
ents to respond to allegations about their fitness to raise their children
implicates their due process rights.
17. Due Process. The concept of due process embodies the notion of funda-
mental fairness and defies precise definition. But the central meaning of
procedural due process is clear: Parties whose rights are to be affected
are entitled to be heard.
- 153 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 15118. Parental Rights: Due Process: Appeal and Error. The absence of a
formal opportunity to be heard distinguishes a case under Neb. Rev.
Stat. § 43-247(3)(c) (Supp. 2015) from a case under § 43-247(3)(a) in an
appellate court’s analysis of whether the change in permanency objec-
tive was a final order.
19. Statutes: Appeal and Error. Appellate courts will adhere to the plain
meaning of a statute absent a statutory indication to the contrary.
20. Guardians and Conservators: Minors. Because Neb. Rev. Stat.
§ 43-1312.01(1)(a) (Reissue 2016) requires that for the establishment
of a guardianship, the child is a juvenile who has been adjudged to be
under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015), a guardianship may
not be established without such adjudication.
Appeals from the Separate Juvenile Court of Douglas
County: Elizabeth Crnkovich, Judge. Reversed and remanded
for further proceedings.
Regina T. Makaitis for appellant.
Karen C. Hicks, of Hicks Law, P.C., L.L.O., for appellee
Calvin S.
Donald W. Kleine, Douglas County Attorney, and Jennifer
C. Clark for appellee State of Nebraska.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Wright, J.
I. NATURE OF CASE
In 2013, the separate juvenile court of Douglas County adju-
dicated twin brothers LeVanta S. and LeRonn S. under Neb.
Rev. Stat. § 43-247(3)(c) (Reissue 2008) as “mentally ill and
dangerous.” Both brothers were eventually placed in out-of-
home care. In September 2015, the juvenile court entered an
order changing the brothers’ permanency objective from family
reunification to guardianship. The mother (appellant, Patricia
B.) and the father (cross-appellant, Calvin S.) separately appeal
from this order in each brother’s case. The appeals from the
two cases have been consolidated.
- 154 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151II. FACTS
1. Family Background
At a very young age, LeVanta and LeRonn were adopted
by Patricia and Calvin, their parents. The twin brothers have
developmental disabilities due to fetal alcohol syndrome.
Both have IQ’s in the “Extremely Low Range” and meet the
criteria for “Mild Mental Retardation.” They were 15 years
old when their cases began in January 2013, and are now 18
years old.
The parents were separated before January 2013 and have
since divorced. After the parents’ separation, one brother lived
with each parent. From the time the children were 5 years old,
the parents have sought professional help in dealing with the
brothers’ behaviors.
2. Petition and First Hearing
In January 2013, the brothers were brought before the
juvenile court for criminal delinquency charges of trespass
and truancy. These charges were dropped when it was deter-
mined that they were not mentally competent to be tried. The
county attorney then filed petitions alleging the brothers were
“mentally ill and dangerous” within § 43-247(3)(c). The State
moved for temporary custody with the Department of Health
and Human Services (DHHS), with placement to include the
parental homes.
3. A djudication and Disposition
An adjudication hearing was held April 3, 2013, and the
brothers and the mother and father were present. Each brother
had appointed counsel, but the parents were not represented
by counsel. The family permanency specialist and the mother
both testified. Examples of the brothers’ poor judgment, fight-
ing, anger problems, and other violent behavior were offered.
Testimony was also offered that LeRonn would at times refuse
to take his medications. The court found by clear and convinc-
ing evidence that the brothers were within the definition of
- 155 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151§ 43-247(3)(c). Temporary custody was placed with DHHS.
The parents did not appeal the adjudication.
A disposition hearing was held May 21, 2013, but the par-
ents were not present and were not represented by counsel.
At the beginning of the hearing, there was some discussion
whether the parents had been informed of the hearing date and
time. The court ordered that the brothers stay at home with
their parents, but that applications for out-of-home placements
should be made. The court ordered in-home developmental
disability services to be provided, with both parents to par-
ticipate. All visits by the parents were to be supervised, and
they were to participate in therapy and complete a psychiat-
ric evaluation.
The court found that reasonable efforts—including evalua-
tions, family support, and case management—had been made
to return each brother to the parents’ custody, but that it was
in their best interests to remain in the temporary custody
of DHHS.
4. A dditional Hearings
The juvenile court continued to have additional review hear-
ings. The family permanency objective was stated as “family
preservation” or “reunification,” but applications for out-of-
home placements were to be made.
In July 2013, LeRonn threw a mailbox through the front
window of his father’s house. He was moved from his father’s
house to an “extended family home” for individuals with devel-
opmental disabilities. Later that month, the court appointed
counsel to represent the parents.
In June 2014, when LeVanta’s behavior regressed, the court
ordered that he be placed in out-of-home care. In July, he was
placed in a group home. The court sustained an ex parte motion
requiring supervision of all visits between the parents and the
boys, because the mother reportedly took the brothers on a
visit together, in violation of a court order, and the father and
LeRonn had gotten into an argument.
- 156 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151At a December 18, 2014, review hearing, the judge ques-
tioned whether an adjudication under § 43-247(3)(c) was the
right procedure in this case or whether subsection (3)(a) was
more appropriate. The court said:
Without a doubt, [these boys] have their own set of chal-
lenges. There is no question about that. That does not
make them delinquent, and it does not make them men-
tally ill and dangerous.
They have a mother and a father who are good, kind
people . . . who love these boys dearly. But I’m — I find
at every hearing that what is at the heart of these chal-
lenges is an inability to parent these boys based on their
unique needs.
No new petition was filed alleging the parents’ “inability to
parent these boys based on their unique needs.”
Upon the recommendation of DHHS, the court ordered
that LeVanta be placed in the same foster home as LeRonn so
they could work on building their relationship and interacting
appropriately without fighting. The orders following the hear-
ing stated that the permanency objective was “reunification,”
with temporary custody remaining with DHHS. The parents
were ordered to “participate with the family support worker
until successful discharge” in order to learn to better teach
the brothers healthy coping skills and ways to interact with
each other.
At another review hearing on March 19, 2015, it was
reported that the brothers were doing well in their placements
and in school. The court ordered the parents to participate in
family support services to work on parenting the brothers and
to participate in individual and family therapy.
Because a finding of a lack of reasonable efforts “can
impact families by shutting off funding for services” and
because many of the previous problems had been corrected, the
court declined to find a lack of reasonable efforts on the part
of DHHS. The court found reasonable efforts had been made
by DHHS.
- 157 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 1515. Change of Permanency Objective
At the review hearing on September 10, 2015, DHHS rec-
ommended continuing to work on the permanency plan of
reunification, while making concurrent permanency plans of
a guardianship. The parents opposed the recommendation of a
guardianship, and the mother’s request for a continuance and
an evidentiary hearing on the issue was denied. The attorneys
for the brothers requested the court to close the case based on
the adjudication under § 43-247(3)(c), because the brothers
were doing very well.
The court denied the requests to close the case and adopted
the permanency objective of guardianship, stating:
So indeed, young man and your brother, too, you are
doing superbly. I could not be more proud. And I wish
that I could grant your request today. But it is not because
of your behavior that I cannot.
At the same time, [the parents] — I think I’ve said this
before — are loving people, are good people, are kind
people, and they love their sons and their sons love them.
But it has been clear at every hearing that they are unable
to place themselves in a position of parenting these chil-
dren. And that was clear even when early on the specific
services to the kids were confusing.
I’m not letting [DHHS] off the hook. I disagree with
— that someone has a mindset that the only solution is a
guardianship. I believe the evidence supports that the pos-
sibility of reunification, given the almost three years that
we have been before the Court, is not likely to happen in
the minority of these children before their 19th birthday.
And it is those combination of things in the evidence that
leads me to conclude that we — a guardianship is the
most appropriate permanency plan for these two young
men. But I want to know for sure that they will stay in
their present placement.
That is the order of the Court. We are adjourned.
Thank you.
- 158 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151The written order stated that the “the primary perma-
nency objective is a guardianship.” It did not state that this
permanency objective was concurrent with an objective of
reunification.
The parents were ordered to continue in individual and
family therapy. For the first time, the father was ordered to
participate in urinalysis testing and to complete a chemical
dependency evaluation. The mother was ordered to allow the
family permanency specialist to conduct drop-in, walk-through
inspections of her home in order to have visits there.
Both parents separately appealed from these orders.
III. ASSIGNMENTS OF ERROR
The mother and father raise the following issues: whether
the juvenile court erred by issuing an order changing the per-
manency objective to guardianship when the juveniles had
been adjudicated only under § 43-247(3)(c) and whether the
juvenile court violated the parents’ constitutional right to due
process. The mother claims the court erred in denying her
request for an evidentiary hearing on the issue of changing the
permanency objective to guardianship.
IV. STANDARD OF REVIEW
[1,2] A jurisdictional issue that does not involve a factual
dispute presents a question of law.1 An appellate court reviews
juvenile cases de novo on the record and reaches its conclu-
sions independently of the juvenile court’s findings. When the
evidence is in conflict, however, an appellate court may give
weight to the fact that the lower court observed the witnesses
and accepted one version of the facts over the other.2
V. ANALYSIS
This case presents these issues: whether the order of the
juvenile court changing the permanency objective for the
1
In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015).
2
Id.- 159 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151brothers was a final, appealable order; whether the juvenile
court exceeded its authority by changing the permanency objec-
tive to guardianship when there has been no adjudication under
§ 43-247(3)(a) (Supp. 2015). The parents argue that the statute
for juvenile guardianships requires an adjudication under sub-
section (3)(a) before a guardianship may be established. The
State argues that the juvenile court has broad authority to adopt
permanency plans for juveniles in both § 43-247(3)(a) and (c)
cases under Neb. Rev. Stat. § 43-285 (Supp. 2015).
The last issue is whether the juvenile court’s order violated
the parents’ due process rights. The parents argue that their
rights were violated by the adoption of the permanency plan
of guardianship because the only basis for the court’s jurisdic-
tion was an adjudication that the brothers were “mentally ill
and dangerous” under § 43-247(3)(c). In a subsection (3)(c)
case, no allegation is made regarding the fitness of a parent
to raise his or her child, nor does a parent have the oppor-
tunity to respond to the petition. The parents also assert that
their due process rights were violated because they were not
advised of their rights or given notice of the possible conse-
quences of future dispositional orders, such as the establish-
ment of a guardianship. The State claims that because the
parents were present in the courtroom when the juveniles were
advised of their rights, the parents were thereby also advised
of their rights.
1. Jurisdiction
As a preliminary matter, we must determine whether we
have jurisdiction over this appeal. The State has asserted that
the orders from which the mother and father appeal are not
final, appealable orders.
[3-6] Appellate courts in Nebraska have jurisdiction to
hear appeals from final orders issued by juvenile courts in
the same manner as appeals from the district courts.3 An
order that “affect[s] a substantial right made in a special
3
Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016).
- 160 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151proceeding” is a final order.4 Juvenile court proceedings are
“special proceedings” for purposes of appeal.5 The question
is whether the order affects a substantial right.6 A substantial
right is an essential legal right, not a mere technical right.7 We
have explained:
Numerous factors determine whether an order affects
a substantial right for purposes of interlocutory appeal.
Broadly, these factors relate to the importance of the
right and the importance of the effect on the right by the
order at issue. It is not enough that the right itself be sub-
stantial; the effect of the order on that right must also be
substantial. Whether the effect of an order is substantial
depends on “‘whether it affects with finality the rights
of the parties in the subject matter.’” It also depends on
whether the right could otherwise effectively be vindi-
cated. An order affects a substantial right when the right
would be significantly undermined or irrevocably lost by
postponing appellate review. Stated another way, an order
affects a substantial right if it “‘affects the subject matter
of the litigation, such as diminishing a claim or defense
that was available to the appellant prior to the order from
which he or she is appealing.’”8
[7] When determining whether a juvenile court order affects
a substantial right of a parent to raise his or her child, we con-
sider the object of the order as well as the length of time over
which the parent’s relationship with the child may reasonably
be expected to be disturbed.9
4
Neb. Rev. Stat. § 25-1902 (Reissue 2016).
5
In re Interest of Octavio B. et al., supra note 1, 290 Neb. at 596, 861
N.W.2d at 422.
6
Id.
7
Id.
8
Deines v. Essex Corp., 293 Neb. 577, 581, 879 N.W.2d 30, 33-34 (2016)
(emphasis supplied).
9
See In re Interest of Octavio B. et al., supra note 1.
- 161 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151(a) Permanency Plans
[8-11] Nebraska law requires the creation of permanency
plans for every juvenile placed in out-of-home care and
requires juvenile courts to hold a hearing on the plan.10 The
court’s order on a permanency plan must include whether
the objective is for the juvenile to be returned to the parent,
referred for a termination-of-parental-rights filing, placed for
adoption, or referred for a guardianship.11 Nebraska law also
requires “reasonable efforts” to be made to reunify families
after a juvenile is placed in out-of-home care. Reasonable
efforts toward reunification may be made concurrently with
a plan for adoption or guardianship, but the objective of fam-
ily preservation and reunification must take priority over the
other objectives.12
[12] If the juvenile’s permanency objective does not include
reunification or adoption, a permanent guardianship may be
established in certain circumstances.13 The first requirement
for establishment of a permanent guardianship is that the
juvenile be adjudicated under § 43-247(3)(a).14 Guardianship
gives the guardian all of the powers, rights, and duties that
a child’s parents would have, but does not terminate a par-
ent’s rights.15
10
Neb. Rev. Stat. §§ 43-1311 (Reissue 2016) and 43-1312 (Cum. Supp.
2014). See, also, generally, Adoption and Safe Families Act of 1997, Pub.
L. No. 105-89, 111 Stat. 2115 (codified at 42 U.S.C. §§ 673b, 678, 679b
(2012), requiring states to adopt permanency plans in their juvenile laws in
order to maintain federal funding); In re Interest of DeWayne G. & Devon
G., 263 Neb. 43, 638 N.W.2d 510 (2002) (discussing permanency plans
and reasonable efforts for family reunification); In re Interest of Sarah K.,
258 Neb. 52, 601 N.W.2d 780 (1999) (discussing adoption of permanency
plans in Nebraska law).
11
§ 43-1312(3).
12
Neb. Rev. Stat. § 43-283.01(6) (Reissue 2016).
13
Neb. Rev. Stat. § 43-1312.01 (Reissue 2016).
14
§ 43-1312.01(1)(a).
15
§ 43-1312.01(2) and (7).
- 162 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151In the cases In re Interest of Sarah K.,16 In re Interest of
Tayla R.,17 In re Interest of Diana M. et al.,18 and In re Interest
of Octavio B. et al.,19 this court and the Nebraska Court of
Appeals have considered whether an order in a juvenile case,
which continues prior dispositional orders but changes the
permanency objective from family reunification to another
objective, is a final, appealable order. In these cases, the
permanency objectives were changed from family reunifica-
tion to adoption, guardianship, or foster care transitioning to
independent living. Read together, these cases provide that
such an order is not a final, appealable order unless the par-
ent’s ability to achieve rehabilitation and family reunification
has been clearly eliminated. However, in all of these cases, the
juveniles had been adjudicated under § 43-247(3)(a). As we
will discuss, the order in this case affects a substantial right of
the parents in a way that a similar order in a subsection (3)(a)
case would not.
(b) § 43-247(3)(c): “mentally ill
and dangerous”
In the cases at bar, the brothers were both adjudicated under
§ 43-247(3)(c) as “mentally ill and dangerous.” The nature of
the adjudication bringing the brothers under the jurisdiction
of the juvenile court is important to understanding whether
the order affected a substantial right of the parents. The order
implicates the parents’ due process rights.
Subsection (3)(c) of § 43-247 gives the juvenile court juris-
diction over any juvenile “who is mentally ill and dangerous as
defined in section 71-908.” Neb. Rev. Stat. § 71-908 (Reissue
2009) is a part of the Nebraska Mental Health Commitment
Act and provides:
16
In re Interest of Sarah K., supra note 10.
17
In re Interest of Tayla R., 17 Neb. App. 595, 767 N.W.2d 127 (2009).
18
In re Interest of Diana M. et al., 20 Neb. App. 472, 825 N.W.2d 811(2013).
19
In re Interest of Octavio B. et al., supra note 1.
- 163 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151Mentally ill and dangerous person means a per-
son who is mentally ill or substance dependent and
because of such mental illness or substance dependence
presents:
(1) A substantial risk of serious harm to another person
or persons within the near future as manifested by evi-
dence of recent violent acts or threats of violence or by
placing others in reasonable fear of such harm; or
(2) A substantial risk of serious harm to himself or
herself within the near future as manifested by evidence
of recent attempts at, or threats of, suicide or serious
bodily harm or evidence of inability to provide for his or
her basic human needs, including food, clothing, shelter,
essential medical care, or personal safety.
Subsection (3)(c) is substantially different from subsection
(3)(a), which, generally speaking, applies to situations in which
a juvenile lacks proper parental care, support, or supervision.20
Because a subsection (3)(a) adjudication addresses the issue
of parental fitness, significant legal consequences can flow
from such an adjudication and greater procedural protections
are required.
[13,14] In a case under § 43-247(3)(a), a parent has the
opportunity to deny a petition’s allegations.21 This is a key
distinction from a subsection (3)(c) petition, in which the
juvenile responds but to which parents have no statutory right
to respond.22 Moreover, an adjudication of a juvenile under
20
§ 43-247(3)(a).
21
See Neb. Rev. Stat. § 43-279.01 (Reissue 2016). See, also, In re Interest
of Trenton W. et al., 22 Neb. App. 976, 983, 865 N.W.2d 804, 811 (2015)
(“factual allegations of a petition seeking to adjudicate a child must give a
parent notice of the bases for seeking to prove that the child is within the
meaning of § 43-247(3)(a)”).
22
See § 43-279.01 (providing parents with right to respond to allegations
in § 43-247(3)(a) petition) and Neb. Rev. Stat. § 43-279 (Reissue 2008)
(providing juveniles with right to respond to allegations under § 43-247(1),
(2), (3)(b), or (4)).
- 164 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151subsection (3)(a) can be a basis for termination of parental
rights if subsequent reasonable efforts to preserve and reunify
the family have failed.23 But an adjudication under subsec-
tion (3)(c) is not a ground for termination under § 43-292.
Pursuant to Nebraska’s permanent juvenile guardianship stat-
ute, § 43-1312.01, an adjudication under subsection (3)(a) is a
requirement for establishing a guardianship.
Under subsection (3)(a) of § 43-247, a parent has both the
opportunity and the incentive to contest and appeal an adjudi-
cation, which the parent does not have when the child is adju-
dicated under subsection (3)(c). And subsequent review orders
in a subsection (3)(a) case do not typically affect a substantial
right for purposes of appeal, because the parent has been given
the full and fair opportunity to respond to the allegations at
the adjudication stage. The parent has been given notice of
the possible consequences of future dispositional orders and
any applicable rights. Furthermore, as compared to subsec-
tion (3)(c), such changes in permanency objectives are within
the power of the court under a subsection (3)(a) adjudication.
Thus, the order changing the permanency plan in a subsection
(3)(a) case does not necessarily affect a substantial right of the
parent when it continues prior orders directed at family pres-
ervation and reunification or remedying the reasons that led to
the adjudication.
[15,16] But in an adjudication under § 43-247(3)(c), no
determination is made of a parent’s ability to care for his or
her child. Nor does the parent have the opportunity to respond
to the allegations in the subsection (3)(c) petition, because the
allegations relate only to the juvenile and not to the parent. The
only basis for the court’s jurisdiction in a case under subsection
(3)(c) is that the juvenile is “mentally ill and dangerous.” The
absence of an opportunity for parents to respond to allegations
about their fitness to raise their children implicates their due
process rights.
23
Neb. Rev. Stat. § 43-292(6) (Reissue 2016).
- 165 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151[17] The constitutional right to due process protects the
parent-child relationship.24 The concept of due process embod-
ies the notion of fundamental fairness and defies precise defini-
tion.25 But “‘the central meaning of procedural due process [is]
clear: “Parties whose rights are to be affected are entitled to be
heard . . . .”’”26 Thus we have said:
When a person has a right to be heard, procedural due
process includes notice to the person whose right is
affected by a proceeding, that is, timely notice reason-
ably calculated to inform the person concerning the sub-
ject and issues involved in the proceeding; a reasonable
opportunity to refute or defend against a charge or accu-
sation; a reasonable opportunity to confront and cross-
examine adverse witnesses and present evidence on the
charge or accusation; representation by counsel, when
such representation is required by constitution or statute;
and a hearing before an impartial decisionmaker.27
Because this was a case under § 43-247(3)(c), based upon
the adjudication of the juveniles as “mentally ill and danger-
ous,” there has been no adjudication under subsection (3)(a) of
the parents’ ability or fitness to raise their children.
[18] The absence of a formal opportunity to be heard dis-
tinguishes this case from cases under § 43-247(3)(a) in our
analysis of whether the change in permanency objective was a
final order. It is against this backdrop that the juvenile court’s
orders changing the brothers’ permanency objective to guard-
ianship uniquely affects the parents’ substantial right to raise
their children.
24
In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992); In re Interest
of Davonest D. et al., 19 Neb. App. 543, 809 N.W.2d 819 (2012).
25
In re Interest of L.V., supra note 24.
26
Id. at 413, 482 N.W.2d at 257, quoting Fuentes v. Shevin, 407 U.S. 67, 92
S. Ct. 1983, 32 L. Ed. 2d 556 (1972).
27
In re Interest of L.V., supra note 24, 240 Neb. at 413-14, 482 N.W.2d at
257.
- 166 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151We conclude the juvenile court’s order affected a substan-
tial right of the parents, because they were afforded no for-
mal process to determine their ability to raise their children.
Because the order affected a substantial right, it is a final,
appealable order.
2. Change
of Permanency Plan
Guardianship
to
Having concluded that we have jurisdiction, we turn to
the merits of this appeal. The parents appeal the order issued
September 14, 2015, which changed the permanency objectives
for both brothers from family reunification to guardianship.
The parents argue that Nebraska’s statute governing per-
manent guardianships for juveniles, § 43-1312.01, requires
an adjudication under subsection (3)(a) of § 43-247 as a pre-
requisite for the establishment of a guardianship. The State
argues that § 43-285 gives the court the power to order DHHS
to prepare a permanency plan for juveniles that have been
adjudicated under either subsection (3)(a) or subsection (3)(c)
of § 43-247.
In 2014, the Nebraska Legislature passed L.B. 908 to
“provide for the appointment of a guardian for a child who is
adjudicated under subdivision (3)(a) of 43-247,” among other
reasons.28 The guardianship provision of L.B. 908 was codi-
fied at § 43-1312.01. The statute provides that if “the perma-
nency plan for a child . . . does not recommend return of the
child to his or her parent or that the child be placed for adop-
tion, the juvenile court may place the child in a guardianship”
if certain requirements are met.29 The first requirement is that
“[t]he child is a juvenile who has been adjudged to be under
subdivision (3)(a) of section 43-247.”30
28
Committee Statement, L.B. 908, Judiciary Committee, 103d Leg., 2d Sess.
(Jan. 29, 2014).
29
§ 43-1312.01(1).
30
§ 43-1312.01(1)(a).
- 167 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151[19] The parents correctly assert that the requirements listed
in § 43-1312.01(1) form a conjunctive list. Elements (a)
through (d) in subsection (1) are connected with the word
“and.” When connecting a list of elements, “and” connotes
a conjunctive list while “or” connotes a disjunctive list.31
We have said that the plain meaning of the words “and” and
“or,” when used to connect elements in a list, may be disre-
garded when such a reading would lead to an absurd result in
conflict with clear legislative intent.32 And we will adhere to
the plain meaning of a statute absent a statutory indication to
the contrary.33
[20] Moreover, the content of the statute supports the
conclusion that the elements form a conjunctive list, each of
which must be met before a guardianship may be established.
For example, subsection (1)(d)(i) of § 43-1312.01 requires
that the guardian be “suitable and able to provide a safe and
permanent home for the child.” It would be unreasonable to
read this as a disjunctive list, so that this requirement need
31
See, Grammer v. Lucking, 292 Neb. 475, 479, 873 N.W.2d 387, 390 (2016)
(“[t]he word ‘or,’ when used properly, is disjunctive”); Zach v. Eacker, 271
Neb. 868, 872, 716 N.W.2d 437, 441 (2006) (referring to “the conjunctive
connector ‘and’”); DG Enterprises, LLC-Will Tax, LLC v. Cornelius, 2015
IL 118975, ¶ 31, 43 N.E.3d 1014, 1021, 398 Ill. Dec. 104, 112 (2015)
(“generally the use of a conjunctive such as ‘and’ indicates that the
legislature intended that all of the listed requirements be met”); Sargent v.
Shaffer, 467 S.W.3d 198, 207 (Ky. 2015) (“courts apply the conjunction,
‘and,’ as written by the legislature unless that construction would clearly
thwart the intent of the legislature or produce an absurd result”); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
116-25 (2012) (discussing conjunctive and disjunctive lists); 1A Norman J.
Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 21:14
(7th ed. 2009) (discussing “[c]onjunctive and disjunctive words”).
32
See, State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005); Ledwith v.
Bankers Life Ins. Co., 156 Neb. 107, 54 N.W.2d 409 (1952); Carlsen
v. State, 127 Neb. 11, 254 N.W. 744 (1934); State, ex rel. Spillman, v.
Brictson Mfg. Co., 114 Neb. 341, 207 N.W. 664 (1926).
33
See, e.g., Shurigar v. Nebraska State Patrol, 293 Neb. 606, 879 N.W.2d 25(2016).
- 168 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151not be met if any of the other requirements in subsections
(1)(a) through (d) were met. Both the plain language of the
statute and common sense require us to read § 43-1312.01(1)
as a conjunctive list. Because § 43-1312.01(1)(a) requires that
for the establishment of a guardianship, “[t]he child is a juve-
nile who has been adjudged to be under subdivision (3)(a) of
section 43-247,” a guardianship may not be established with-
out such adjudication.
The State argues the court had the authority to change
the permanency objective to guardianship under § 43-285.
Subsection (2)(a) of that statute states in part:
Following an adjudication hearing at which a juvenile is
adjudged to be under subdivision (3)(a) or (c) of section
43-247, the court may order the department to prepare
and file with the court a proposed plan for the care, place-
ment, services, and permanency which are to be provided
to such juvenile and his or her family.34
This statute gives a juvenile court the authority to order DHHS
to prepare a plan for the care of juveniles in its custody, includ-
ing a permanency objective and the authority to adopt such
an objective. The question is whether the juvenile court had
the authority to adopt a permanency objective of guardian-
ship in this case under § 43-247(3)(c) without a subsection
(3)(a) adjudication. We hold that it did not. If a guardianship
may not be lawfully established without a subsection (3)(a)
adjudication, then neither may a permanency plan of guardian-
ship be adopted without such adjudication. The juvenile court
exceeded its authority in its order of September 14, 2015, by
adopting the permanency plan of guardianship.
3. Due Process
The parents also assert that the juvenile court’s order chang-
ing the permanency objective to guardianship violated their
constitutional right to due process. They argue that because
34
§ 43-285(2)(a) (emphasis supplied).
- 169 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LeVANTA S.
Cite as 295 Neb. 151the case was filed as a case under § 43-247(3)(c), in which no
allegations were made against the parents, and because they
were never advised of their rights or the possible consequences
of the disposition orders of the court, including that a guard-
ianship may be established, their constitutional right to due
process was violated. The mother also asserts that the juvenile
court’s denial of her request for an evidentiary hearing on the
issue of adopting the permanency plan of guardianship violated
her due process rights. We have discussed the parents’ due
process rights in the context of our final order analysis in this
case. Because we reverse the juvenile court’s order on the basis
that a permanency plan of guardianship may not be adopted
without a subsection (3)(a) adjudication, we need not reach this
assignment of error on the merits.
VI. CONCLUSION
The juvenile court’s order adopting the permanency objec-
tive of guardianship was a final, appealable order, because it
affected a substantial right of the parents in a special proceed-
ing. The parents’ substantial right to raise their children was
affected, because no determinations were made about their
fitness and ability to care for their children in this case under
§ 43-247(3)(c). They were not given the opportunity to for-
mally respond to the court’s opinion that “they are unable to
place themselves in a position of parenting these children.”
The juvenile court exceeded its authority in adopting a per-
manency objective of guardianship in a case in which there
has been no adjudication under § 43-247(3)(a). We reverse the
order of September 14, 2015, and remand the cause for fur-
ther proceedings.
R eversed and remanded for
further proceedings.