In re Interest of Zachary B. , 299 Neb. 187 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
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IN RE INTEREST OF ZACHARY B.
Cite as 299 Neb. 187In re I nterest of
Zachary B., a child
under 18 years of age.
State of Nebraska, appellee,
v. Zachary B., appellant.
___ N.W.2d ___
Filed March 2, 2018. No. S-17-466.
1. 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.
2. 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.
3. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902(Reissue 2016), 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.
4. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
5. Constitutional Law: Minors. Nebraska law as reflected in Neb. Rev.
Stat. § 43-251.01(7) (Reissue 2016) recognizes that a juvenile has an
essential legal right, and therefore a substantial right, to remain in his or
her home.
6. Final Orders: Appeal and Error. In analyzing whether a substan-
tial right was affected by a court order, it is not enough that the right
itself be substantial, the effect of the order on that right must also
be substantial.
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IN RE INTEREST OF ZACHARY B.
Cite as 299 Neb. 1877. Final Orders. Whether the effect of an order is substantial depends
on whether it affects with finality the rights of the parties in the sub-
ject matter.
8. Final Orders: Minors: Appeal and Error. Orders which temporarily
suspend a juvenile’s right to stay in the home for a brief period of time
and do not purport to determine the juvenile’s placement with finality do
not affect a substantial right and are therefore not appealable.
Appeal from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Appeal dismissed.
Joe Nigro, Lancaster County Public Defender, and Sarah
Safarik for appellant.
Joe Kelly, Lancaster County Attorney, and Margeaux K. Fox
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Zachary B., a juvenile, appeals the order of the separate
juvenile court of Lancaster County which ordered that he be
removed from his family home and placed in Boys Town.
Because the juvenile court’s order was not a final order, we
dismiss this appeal for lack of jurisdiction.
STATEMENT OF FACTS
In March 2016, the juvenile court adjudicated Zachary,
who was born in April 2000, to be a juvenile as defined by
Neb. Rev. Stat. § 43-247(3)(b) (Supp. 2015). Zachary admit-
ted to the State’s charge that he had been truant from school
between the dates of August 12 and December 15, 2015. In
June 2016, Zachary was placed on probation for a period of
15 months, with placement in the family home. The court
ordered that Zachary’s probation was subject to certain terms
and conditions, including, inter alia, that he “[a]ttend school
regularly . . . without truancy or suspension . . . .”
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IN RE INTEREST OF ZACHARY B.
Cite as 299 Neb. 187In January 2017, the State moved to revoke Zachary’s
probation. The State alleged that he had violated conditions
of his probation by failing to attend school regularly and by
failing to cooperate with services arranged by his probation
officer. Zachary admitted to the violations at a hearing held
February 24. In an order entered after the hearing, the juvenile
court found Zachary’s admission to be freely, voluntarily, and
knowingly made and it found that a factual basis existed for
his admission; however, the juvenile court deferred “ruling on
whether or not to revoke [Zachary’s] probation pending the
completion of an updated predisposition report.” The court
continued the case to April 12.
After the hearing on April 12, 2017, the juvenile court
entered an order which stated that “[d]isposition was con-
tinued for good cause.” The court found that since the time
Zachary was placed on probation in June 2016, “numerous
services have been provided to the family, including in-home
counseling and tracker services,” but that “[d]espite those
efforts, [Zachary] has not been attending school, despite his
family’s belief that he has.” The court found that Zachary
had missed at least 131 of the 152 scheduled days of the cur-
rent school year and that when he did not go to school, he
stayed home. The court also found that the services that had
been provided had been “unsuccessful due to lack of coop-
eration by [Zachary] and/or his family” and that no services
had been identified that would “change the dynamics within
the home.”
The court then found that “[a]ll relevant community-based
services have been utilized and exhausted to assist [Zachary]
and his family.” The court further found that “[m]aintaining
[Zachary] in the home is not only contrary to his health, safety,
and welfare, but it presents a significant risk of harm . . . with
regards to his education and his future” and that if Zachary
remained in the home, “he will not attend school and he will
never graduate high school.” Although the court did not cite
the statute, it appears that these findings were prompted by
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IN RE INTEREST OF ZACHARY B.
Cite as 299 Neb. 187Neb. Rev. Stat. § 43-251.01 (Reissue 2016), which provides in
relevant part:
All placements and commitments of juveniles for eval-
uations or as temporary or final dispositions are subject to
the following:
....
(7) A juvenile alleged to be a juvenile as described in
subdivision (1), (2), (3)(b), or (4) of section 43-247 shall
not be placed out of his or her home as a dispositional
order of the court unless:
(a) All available community-based resources have
been exhausted to assist the juvenile and his or her fam-
ily; and
(b) Maintaining the juvenile in the home presents a sig-
nificant risk of harm to the juvenile or community.
In the April 12, 2017, order, in addition to reflecting
§ 43-251.01(7), the court cited Neb. Rev. Stat. § 43-286(Reissue 2016) as authorizing the court to “continue the dis-
position portion of the hearing, from time to time upon such
terms and conditions as the court may prescribe, and place
the juvenile in a suitable family home or institution.” The
court determined that Boys Town was a suitable placement
for Zachary and that such placement was in his best interests.
The court stated that under the authority of § 43-286, it was
“ordering that disposition be continued and that Zachary . . . be
placed at Boys Town as soon as possible” and that he “follow
the rules of Boys Town once placement takes place.” The court
ordered that the hearing on the motion to revoke probation was
continued to June 22.
At the April 12, 2017, hearing, the court orally made
the following comments regarding the effect of the order it
was entering:
I’m not entering final disposition today so this is not
going to be a dispositional Order in that sense. The
law does allow the Court under 43-286 to continue dis-
position from time to time under whatever terms and
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IN RE INTEREST OF ZACHARY B.
Cite as 299 Neb. 187conditions the Court deems to be appropriate based on
the evidence, and as part of that, allow the Court to
place youth outside of the home. . . . I’m continuing
the matter, ordering him to be placed at Boys Town as
soon as possible, continuing disposition for 60 days. The
family’s still going to be involved in his life. The fam-
ily needs to be part of his life and the goal is for him
then to return home. . . . So I’m continuing the matter,
ordering Boys Town, ordering Zach to follow the rules
at Boys Town and we’ll continue the matter for maybe
60 to 90 days and we’ll address further disposition at the
next hearing.
Zachary appeals the April 12, 2017, order.
ASSIGNMENTS OF ERROR
Zachary generally claims that the juvenile court erred when
it ordered him to be removed from his home, and he specifi-
cally claims that there was insufficient evidence for the juve-
nile court to find under § 43-251.01(7) that all community-
based resources had been exhausted and that maintaining him
in his home presented a significant risk of harm to him or
the community.
STANDARD OF REVIEW
[1] 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
[2] 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. Id. The State argues that the order remov-
ing Zachary from his home is not a final, appealable order,
because it was not a final disposition and instead it was a
temporary placement and did not affect a substantial right. In
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IN RE INTEREST OF ZACHARY B.
Cite as 299 Neb. 187contrast, Zachary argues that the order is appealable because
it affected a substantial right and that if he is not allowed to
appeal the order, he will be denied his right to a meaningful
review of the order placing him outside his home if such place-
ment is merely continued in a future disposition. We agree
with the State.
[3] Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016) gives
appellate courts jurisdiction to review “[a]ny final order or
judgment entered by a juvenile court . . . .” Under Neb. Rev.
Stat. § 25-1902 (Reissue 2016), 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 affect-
ing a substantial right made on summary application in an
action after judgment is rendered. In re Interest of Becka P.
et al., supra. Because neither the first type nor the third type
of final orders is applicable in this case, we examine appeal-
ability under the second type. A proceeding before a juvenile
court is a “special proceeding” for appellate purposes, see
id., and therefore, in order to determine whether the April
12, 2017, order is a final order, we must determine whether
the order affected a substantial right. The determination of
appealability in this case, as in other juvenile cases, is a fact-
intensive inquiry.
[4] A substantial right is an essential legal right, not a mere
technical right. Id. We have recognized that the substantial right
of a parent in juvenile proceedings is a parent’s fundamental,
constitutional right to raise his or her child. In re Interest of
Cassandra B. & Moira B., 290 Neb. 619, 861 N.W.2d 398(2015). In this case, however, it is the juvenile himself and not
a parent who is appealing the placement order.
We have recognized that as a corollary to a “parent’s right
to the companionship, care, custody, and management of his
or her child,” a child has a “reciprocal right to be raised and
nurtured by a biological or adoptive parent,” and we have
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IN RE INTEREST OF ZACHARY B.
Cite as 299 Neb. 187stated that “establishment and continuance of the parent-
child relationship is the most fundamental right a child pos-
sesses.” In re Guardianship of Benjamin E., 289 Neb. 693,
707, 856 N.W.2d 447, 457 (2014) (Stephan, J., concurring)
(citing In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d
238 (2004)). However, the record in this case indicates that
Zachary was not being raised and nurtured by a biological or
adoptive parent. Instead, Zachary was living with his aunt,
and for purposes of our review, we determine that this was his
“home” under § 43-251.01(7). For completeness, we note that
his legal guardian was his grandmother, with whom he was
not residing.
[5] With the legal principles recited above in mind, we
must consider whether Zachary has an essential legal right
to stay in his home, which right is independent of his right
to establishment and continuance of the parent-child relation-
ship. The issue to which Zachary assigns error in this case is
the juvenile court’s determination under § 43-251.01(7) that
all community-based resources had been exhausted and that
maintaining him in his home presented a significant risk of
harm to him or the community. We note that subsection (7)
was added to § 43-251.01 as part of 2015 Neb. Laws, L.B.
482, and that subsection (7) requires that a juvenile “shall not
be placed out of his or her home” unless the required findings
are made. The Introducer’s Statement of Intent with regard to
L.B. 482 indicated that the intent of the bill was “to ensure that
juveniles charged with status offenses [including truancy] are
not treated like criminals” and to “prevent kids charged with
. . . truancy from being . . . placed in out of home care unless
certain factors are present.” Judiciary Committee, 104th Leg.,
1st Sess. (Feb. 25, 2015). We determine that Nebraska law as
reflected in § 43-251.01(7) recognizes that a juvenile has an
essential legal right, and therefore a substantial right, to remain
in his or her home.
[6,7] Having determined that a substantial right of Zachary’s
was at issue in this case, we need to determine whether the
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IN RE INTEREST OF ZACHARY B.
Cite as 299 Neb. 187April 12, 2017, order affected that right within the meaning
of § 25-1902(2). In analyzing whether a substantial right was
affected by a juvenile court order, we have stated that it is
not enough that the right itself be substantial, the effect of the
order on that right must also be substantial. See In re Interest
of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017). We
further stated that whether the effect of an order is substantial
depends on whether it affects with finality the rights of the
parties in the subject matter. Id.In juvenile court cases, we have observed that whether an
order affects a substantial right of a parent 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. See In re Interest of Becka P. et
al., 296 Neb. 365, 894 N.W.2d 247 (2017). We stated in such
cases that orders which temporarily suspend a parent’s custody,
visitation, or education rights for a brief period of time do
not affect a substantial right and are therefore not appealable.
We believe that it is prudent to apply a similar analysis here
where the focus is on the juvenile’s right to remain in his or
her home.
[8] As is evident from the foregoing, the substance of an
order placing a juvenile outside his home affects the juve-
nile’s right to stay in the home; however, in determining
whether a substantial right has been affected for final order
purposes, we must also consider the length of time the juve-
nile may reasonably be expected to be deprived of that right.
Similar to our holding with regard to orders that suspend a
parent’s rights, we hold that orders which temporarily sus-
pend a juvenile’s right to stay in the home for a brief period
of time and do not purport to determine the juvenile’s place-
ment with finality do not affect a substantial right and are
therefore not appealable.
Zachary notes that by virtue of the introductory sentence
of § 43-251.01, the requirements of § 43-251.01(7) apply
to all placements of juveniles, whether temporary or final
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IN RE INTEREST OF ZACHARY B.
Cite as 299 Neb. 187dispositions. Zachary contends that because the requirements
must be met in temporary as well as final dispositions of
juveniles, even a temporary order has a substantial effect on a
juvenile’s rights. We do not agree.
We recognize that the requirements of § 43-251.01(7) apply
to a temporary as well as a final disposition and that therefore,
a juvenile court must make the required findings before it
makes a temporary placement. It does not necessarily follow
that the temporary order is appealable.
To determine appealability, we must determine whether the
April 21, 2017, order which temporarily suspended Zachary’s
right to stay in his home for a brief period of time affected
that right with finality and had a substantial effect on that
right. We note in this regard we have recognized that as a
general matter, a juvenile court has continuing authority to
change the custody or care of a juvenile under its jurisdiction
when doing so is in the juvenile’s best interests, but that such
ability to potentially change a placement at some future point
“has no bearing on whether [a specific placement] order is
final and appealable.” In re Interest of Karlie D., 283 Neb.
581, 587, 811 N.W.2d 214, 221 (2012). We cited this proposi-
tion in In re Interest of Cassandra B. & Moira B., 290 Neb.
619, 626, 861 N.W.2d 398, 404 (2015), when we determined
that an order was not temporary where the “order gave no
indication that the court would revisit this issue prior to the
next review hearing scheduled . . . approximately 6 months in
the future.”
In contrast to In re Interest of Cassandra B. & Moira B.,
in this case, the court indicated that it intended to revisit
Zachary’s placement more immediately and continued the dis-
position for 60 days. In the April 12, 2017, order, the court
stated it was continuing disposition of the matter to June 22
and that it was making the placement pursuant to § 43-286,
which authorized the court to continue disposition from time
to time and place the juvenile in a suitable family home or
institution. The language of the order is reinforced by the
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IN RE INTEREST OF ZACHARY B.
Cite as 299 Neb. 187court’s statements at the hearing, in which the court indicated
that it had authority under § 43-286, that it was not entering
final disposition, that it was placing Zachary at Boys Town
and continuing disposition for 60 days, that it would address
further disposition at that next hearing, and that the goal was
for Zachary to return to his home.
Thus, in the order and the associated comments at the hear-
ing, the juvenile court in the present case made clear that it
intended the April 12, 2017, order to be temporary in nature
and that it planned to revisit the issue of an appropriate place-
ment for Zachary at the June 22 hearing. Cf. In re Interest
of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017)
(concluding that order was not temporary and therefore was
appealable, because neither language of order nor court’s
remarks on record denoted temporary interruption of par-
ents’ rights). The order did not substantially affect Zachary’s
right to home placement, and it was not a final order under
§ 25-1902(2).
CONCLUSION
Because the April 12, 2017, order is not a final order, we do
not have jurisdiction of this appeal. Accordingly, we dismiss
the appeal for lack of jurisdiction.
A ppeal dismissed.
Wright, J., not participating.