Christine W. v. Trevor W.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/24/2019 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
Christine W., appellant, v.
Trevor W., appellee.
___ N.W.2d ___
Filed May 24, 2019. No. S-18-922.
1. Jurisdiction: Statutes. Subject matter jurisdiction and statutory inter-
pretation present questions of law.
2. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal 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 matter involved.
3. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
4. Statutes. Statutory language is to be given its plain and ordinary
meaning.
5. Legislature: Intent. The intent of the Legislature is expressed by omis-
sion as well as by inclusion.
6. Juvenile Courts: Statutes: Jurisdiction. A juvenile court is a statuto-
rily created court of limited and special jurisdiction, and it has only the
authority which the statutes confer on it.
7. Courts: Juvenile Courts: Jurisdiction: Parental Rights. A juvenile
court lacks statutory authority under Neb. Rev. Stat. § 42-364(5) (Cum.
Supp. 2018) to transfer a proceeding back to the district court where:
(1) The district court, having subject matter jurisdiction of a modifica-
tion proceeding under § 42-364(6) in which termination of parental
rights has been placed in issue and having personal jurisdiction of the
parties to that proceeding, has transferred jurisdiction of the proceed-
ing to the appropriate juvenile court; (2) termination of parental rights
remains in issue and unadjudicated in the transferred proceeding; (3) the
State is not involved in the proceeding and has not otherwise asserted
jurisdiction over the child or children involved in the modification
proceeding; and (4) the juvenile court has not otherwise been deprived
of jurisdiction.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
Appeal from the County Court for Washington County,
C. M atthew Samuelson, Judge, on transfer thereto from the
District Court for Washington County, John E. Samson, Judge.
Judgment of County Court vacated and remanded.
Scott V. Hahn, of Hightower Reff Law, and, on brief, Tosha
Rae D. Heavican for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
After Trevor W. commenced a modification proceeding in
the district court, Christine W. counterclaimed to terminate
Trevor’s parental rights and obtained an order transferring the
proceeding to the county court, sitting as a juvenile court. But
when the proceeding reached the juvenile court, it “denie[d]”
the transfer and purportedly returned the proceeding to dis-
trict court. Christine appeals from the juvenile court’s order.
Because the juvenile court’s order purporting to transfer the
proceeding back to district court was beyond the juvenile
court’s statutory authority and void, we vacate that order and
remand the cause to the juvenile court for further proceedings
consistent with this opinion.
BACKGROUND
Statutory Framework
In order to understand the procedural background of this
appeal, the reader needs some familiarity with the statutes
concerning jurisdiction of trial courts over the matters at issue:
modification of a parenting plan and termination of parental
rights. Before setting forth the specific statute controlling the
transfer from district court to juvenile court of a proceeding
where termination of parental rights has been placed in issue,
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
we begin by recalling statutes identifying the authority of dis-
trict, county, and juvenile courts over such matters. We then
summarize the specific statute addressing transfer or retention
of a district court proceeding where termination of parental
rights has been placed in issue.
Under Nebraska’s marital dissolution, separation, annulment,
custody, and support statutes,1 a proceeding is commenced by
filing a “complaint” in the district court.2 Consequently, disso-
lution and custody proceedings begin in the district court.
But another statute3 authorizes “domestic relations matters,”4
which includes dissolution and custody proceedings, to be
heard by a district court judge or a county court judge.5
Consistent with that other statute, the statute governing com-
mencement of a marital dissolution and custody proceeding
authorizes the proceeding to be heard “by the county court or
the district court as provided in section 25-2740.”6
Despite the procedure allowing selection of a county court
judge in a domestic relations matter, the matter remains as a
district court proceeding and achieves the same finality as a dis-
trict court judgment. According to § 25-2740(2), the party shall
state in the complaint whether he or she wants the proceeding
to be heard by a district court judge or by a county court judge.
If the party requests a county court judge, “the county court
judge assigned to hear cases in the county in which the matter
is filed at the time of the hearing is deemed appointed by the
district court and the consent of the county court judge is not
required.”7 Where the proceeding is heard by a county court
1
Neb. Rev. Stat. §§ 42-347 to 42-381 (Reissue 2016 & Cum. Supp. 2018).
2
§ 42-352.
3
Neb. Rev. Stat. § 25-2740 (Cum. Supp. 2018).
4
See § 25-2740(1)(a) (defining “[d]omestic relations matters”).
5
§ 25-2740(2).
6
§ 42-352.
7
§ 25-2740(2).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
judge, it is “considered a district court proceeding” and “an
order or judgment of the county court in a domestic relations
matter has the force and effect of a district court judgment.”8
Section 42-364(6) authorizes modification proceedings relat-
ing to support, custody, parenting time, visitation, other access,
or removal of children from the jurisdiction of the court. A
proceeding to modify a parenting plan is “commenced by fil-
ing a complaint to modify.”9 Under §§ 42-348 and 42-351(1),
a district court has jurisdiction to adjudicate such actions. But
under § 42-348, marital dissolution and custody proceedings
“may be transferred to a separate juvenile court or county
court sitting as a juvenile court which has acquired jurisdiction
pursuant to section 43-2,113.”
Neb. Rev. Stat. § 43-2,113(2) (Cum. Supp. 2018) provides
that a juvenile court “shall have and exercise jurisdiction . . .
with the county court and district court in all matters arising
under Chapter 42, article 3, when the care, support, custody,
or control of minor children under the age of eighteen years
is involved.” The statute dictates, “Such cases shall be filed in
the county court and district court and may, with the consent
of the juvenile judge, be transferred to the trial docket of the
separate juvenile court or county court.”10
Most proceedings seeking termination of parental rights fall
within the jurisdiction of the juvenile courts.11 Such jurisdiction
is concurrent with the county court or district court.12
With this general framework in mind, we now recite the
statute governing retention or transfer of a proceeding where
termination of parental rights has been placed in issue—which
is the situation in the proceeding before us.
8
Id.
9
§ 42-364(6).
10
§ 43-2,113(2).
11
Neb. Rev. Stat. § 43-247(6) (Reissue 2016).
12
See Neb. Rev. Stat. § 43-246.01(3)(b) (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
Section 42-364(5) states:
Whenever termination of parental rights is placed in issue
the court shall transfer jurisdiction to a juvenile court
established pursuant to the Nebraska Juvenile Code unless
a showing is made that the county court or district court
is a more appropriate forum. In making such determina-
tion, the court may consider such factors as cost to the
parties, undue delay, congestion of trial dockets, and rela-
tive resources available for investigative and supervisory
assistance. A determination that the county court or dis-
trict court is a more appropriate forum shall not be a final
order for the purpose of enabling an appeal. If no such
transfer is made, the court shall conduct the termination
of parental rights proceeding as provided in the Nebraska
Juvenile Code.
Thus, when termination of parental rights is placed in issue in a
district court dissolution and custody modification proceeding,
the district court is required to transfer jurisdiction to a juve-
nile court unless the district court concludes that it is the more
appropriate forum.
Although this court13 and the Nebraska Court of Appeals14
have only occasionally reviewed proceedings to terminate
parental rights which were retained and actually adjudicated
in district court, the statutes authorize a district court to do so.
Often, the decision to do so may turn on the “relative resources
available for investigative and supervisory assistance.”15
Typically, a district court will conclude that where termination
13
See, e.g., Kenneth C. v. Lacie H., 286 Neb. 799, 839 N.W.2d 305 (2013);
R.D.N. v. T.N., 218 Neb. 830, 359 N.W.2d 777 (1984), disapproved on
other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).
14
See, e.g., Timothy T. v. Shireen T., 16 Neb. Ct. App. 142, 741 N.W.2d 452
(2007); Worm v. Worm, 6 Neb. Ct. App. 241, 573 N.W.2d 148 (1997); Joyce S.
v. Frank S., 6 Neb. Ct. App. 23, 571 N.W.2d 801 (1997), disapproved on other
grounds, Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998).
15
§ 42-364(5).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
of parental rights has been placed in issue, the proceeding
should be transferred to the juvenile court under § 42-364(5).
With that understanding in place, we turn to the circumstances
presented here.
Dissolution of M arriage
The parties are the biological parents of a child born in
2009. In a 2012 decree, the Washington County District Court
dissolved the parties’ marriage. The decree included a parent-
ing plan. The district court’s decree awarded Christine legal
and physical custody of the child and provided Trevor with
regular parenting time.
R equests for Modification
and Termination
In 2018, Trevor filed in the district court a “motion” to
modify the parenting plan. His motion noted that he was
“incarcerated” and requested, among other things, at least one
30-minute telephone call per week and two visits per month.
Christine responded by filing a counterclaim for termination
of Trevor’s parental rights under § 43-247(6) and Neb. Rev.
Stat. § 43-292(1), (2), and (9) (Reissue 2016). She alleged
that in May 2014, the Washington County District Court sen-
tenced Trevor to 25 to 35 years’ incarceration following a
conviction for four counts of sexual assault in the first degree.
Alternatively, Christine asked that the court modify the decree
and parenting plan to provide for “no court-ordered parenting
time or contact” between Trevor and the child.
Motion to Transfer Jurisdiction
Shortly after a hearing in which the district court expressed
doubt that it had jurisdiction to terminate parental rights,
Christine moved to transfer “jurisdiction of the above-­captioned
matter” to the county court for Washington County, acting as a
juvenile court. The district court held a hearing on the motion,
during which Trevor stated that he had no objection to it. The
district court thereafter entered an order transferring the case
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
to the juvenile court “for all issues pertaining to the minor
child herein.” The order recited that the juvenile court had con-
sented to the transfer of jurisdiction to juvenile court.
Approximately 2 months later, the juvenile court entered a
“Transfer Order,” stating that it “does not accept said transfer
for lack of subject matter jurisdiction.” The order was filed in
the district court proceeding and acknowledged that the court
had earlier consented to the transfer. But the court stated that it
lacked jurisdiction based “upon further review of case law and
Neb. Rev. Stat. [§] 43-292.02.”
Neb. Rev. Stat. § 43-292.02 (Cum. Supp. 2018) provides:
(1) A petition shall be filed on behalf of the state to
terminate the parental rights of the juvenile’s parents or,
if such a petition has been filed by another party, the state
shall join as a party to the petition, and the state shall con-
currently identify, recruit, process, and approve a quali-
fied family for an adoption of the juvenile, if:
(a) A juvenile has been in foster care under the respon-
sibility of the state for fifteen or more months of the most
recent twenty-two months; or
(b) A court of competent jurisdiction has determined
the juvenile to be an abandoned infant or has made a
determination that the parent has committed murder of
another child of the parent, committed voluntary man-
slaughter of another child of the parent, aided or abetted,
attempted, conspired, or solicited to commit murder, or
aided or abetted voluntary manslaughter of the juvenile or
another child of the parent, or committed a felony assault
that has resulted in serious bodily injury to the juvenile
or another minor child of the parent. For purposes of this
subdivision, infant means a child eighteen months of age
or younger.
(2) A petition shall not be filed on behalf of the state to
terminate the parental rights of the juvenile’s parents or,
if such a petition has been filed by another party, the state
shall not join as a party to the petition if the sole factual
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
basis for the petition is that (a) the parent or parents of
the juvenile are financially unable to provide health care
for the juvenile or (b) the parent or parents of the juvenile
are incarcerated. The fact that a qualified family for an
adoption of the juvenile has been identified, recruited,
processed, and approved shall have no bearing on whether
parental rights shall be terminated.
(3) The petition is not required to be filed on behalf
of the state or if a petition is filed the state shall not be
required to join in a petition to terminate parental rights
or to concurrently find a qualified family to adopt the
juvenile under this section if:
(a) The child is being cared for by a relative;
(b) The Department of Health and Human Services has
documented in the case plan or permanency plan, which
shall be available for court review, a compelling reason
for determining that filing such a petition would not be in
the best interests of the juvenile; or
(c) The family of the juvenile has not had a reasonable
opportunity to avail themselves of the services deemed
necessary in the case plan or permanency plan approved
by the court if reasonable efforts to preserve and reunify
the family are required under section 43-283.01.
(4) Except as otherwise provided in the Nebraska
Indian Child Welfare Act, if a child is conceived by the
victim of a sexual assault, a petition for termination of
parental rights of the perpetrator shall be granted if such
termination is in the best interests of the child and (a) the
perpetrator has been convicted of or pled guilty or nolo
contendere to sexual assault of the child’s birth parent
under section 28-319 or 28-320 or a law in another juris-
diction similar to either section 28-319 or 28-320 or (b)
the perpetrator has fathered the child or given birth to the
child as a result of such sexual assault.
Section 43-292.02 has four main subsections. Generally,
each main subsection has a distinct purpose. Subsection (1)
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
generally establishes circumstances where the State has a duty
to seek termination of parental rights. Subsection (2) specifies
circumstances where, despite the command of subsection (1),
the State shall not seek termination. Subsection (3) identifies
situations excusing the State from the mandate of subsection
(1). And subsection (4) mandates termination of parental rights
in particular circumstances not present here.
In transferring the case back to district court, the juvenile
court apparently relied on § 43-292.02(3). The court explained,
“In review of [§] 43-292.02(3)([a]), the Court is of the opinion
that either [subs]ection (b) or (c) of [§] 43-292.02 must be com-
plied with in conjunction with (3)([a]) of said statute in order
to proceed to terminate a parent’s parental rights.” The order
does not cite any particular case law, and it is not clear how or
why the juvenile court arrived at this conclusion, particularly
given that the State has not been involved in this proceeding in
any way. The juvenile court then stated that because it did not
believe the statute had been followed, it was transferring the
case back to the district court “for further consideration.”
Eight days later, Christine filed a notice of appeal in the
district court proceeding. We moved the appeal to our docket.16
ASSIGNMENT OF ERROR
Christine assigns that the juvenile court erred in deny-
ing subject matter jurisdiction based on its application of
§ 43-292.02(3).
STANDARD OF REVIEW
[1] Subject matter jurisdiction and statutory interpretation
present questions of law.17
ANALYSIS
[2,3] Subject matter jurisdiction is the power of a tribunal to
hear and determine a case in the general class or category to
16
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
17
In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
which the proceedings in question belong and to deal with the
general subject matter involved.18 Lack of subject matter juris-
diction may be raised at any time by any party or by the court
sua sponte.19 Here, the juvenile court determined sua sponte
that it lacked subject matter jurisdiction.
The juvenile court’s conclusion is puzzling, because a
clear statutory path seems to dictate otherwise. First, reading
§ 43-246.01(3)(b) together with § 43-247(6), juvenile courts
have concurrent original jurisdiction over “proceedings for
termination of parental rights.” Second, the district court for
Washington County had subject matter jurisdiction of a pro-
ceeding seeking to modify a dissolution decree previously
entered by that court.20 Trevor invoked this jurisdiction by
filing his complaint to modify (styled as a motion). Christine
did likewise by her filings styled as a counterclaim and an
amended counterclaim. Third, the district court had personal
jurisdiction of the parties to the modification proceeding, who
both appeared voluntarily.21 The juvenile court’s order does
not dispute the district court’s jurisdiction of the modification
proceeding or that termination of parental rights was placed in
issue in that proceeding. Fourth, the district court transferred
jurisdiction to the county court for Washington County, sit-
ting as a juvenile court, pursuant to § 42-364(5). Under the
Nebraska Juvenile Code22 as applied to Washington County, a
“[j]uvenile court” means “the county court sitting as a juvenile
court.”23 Thus, the jurisdictional path ran from the district court
to the juvenile court.
Despite the juvenile court’s reasoning that it lacked subject
matter jurisdiction because of § 43-292.02, the juvenile court
18
Id.
19
Id.
20
See §§ 42-351(1) and 42-364(6).
21
See § 42-355.
22
Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 2016 & Cum. Supp. 2018).
23
§ 43-245(12).
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303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
did not dismiss the proceeding. Instead, it purported to transfer
the matter back to the district court. In doing so, it exceeded its
statutory authority under § 42-364(5).
[4,5] Statutory language is to be given its plain and ordinary
meaning.24 And the intent of the Legislature is expressed by
omission as well as by inclusion.25
Section 42-364(5) is clear: Where termination of parental
rights has been “placed in issue,” it empowers a district court
(or a county court adjudicating a modification proceeding
pursuant to § 25-2740) to “transfer jurisdiction” to a “juvenile
court established pursuant to the Nebraska Juvenile Code.”
Indeed, § 42-364(5) requires the transfer unless the district
court concludes that it is the more appropriate forum.
Once jurisdiction has been established in the district court,
the transfer to the juvenile court has been made, and termina-
tion of parental rights remains in issue, the juvenile court must
adjudicate those rights. Section 42-364(5) simply does not
authorize a juvenile court to transfer a termination proceeding
back to the district court under these circumstances. In doing
so, the court exceeded its statutory authority. While there may
be circumstances under which authority for a juvenile court
to transfer a termination proceeding back to the district court
is impliedly authorized under § 42-364(5), they are not pres-
ent here.
[6] A juvenile court is a statutorily created court of limited
and special jurisdiction, and it has only the authority which the
statutes confer on it.26 This applies equally to a county court
sitting as a juvenile court.27
24
See Patterson v. Metropolitan Util. Dist., 302 Neb. 442, 923 N.W.2d 717
(2019).
25
Donna G. v. Nebraska Dept. of Health & Human Servs., 301 Neb. 838,
920 N.W.2d 668 (2018).
26
In re Interest of Josue G., 299 Neb. 784, 910 N.W.2d 159 (2018).
27
See In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011).
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
CHRISTINE W. v. TREVOR W.
Cite as 303 Neb. 245
[7] We hold that a juvenile court lacks statutory authority
under § 42-364(5) to transfer a proceeding back to the dis-
trict court where: (1) The district court, having subject matter
jurisdiction of a modification proceeding under § 42-364(6) in
which termination of parental rights has been placed in issue
and having personal jurisdiction of the parties to that pro-
ceeding, has transferred jurisdiction of the proceeding to the
appropriate juvenile court; (2) termination of parental rights
remains in issue and unadjudicated in the transferred proceed-
ing; (3) the State is not involved in the proceeding and has
not otherwise asserted jurisdiction over the child or children
involved in the modification proceeding; and (4) the juvenile
court has not otherwise been deprived of jurisdiction. That is
the situation here. Accordingly, the juvenile court lacked the
statutory authority to transfer to the district court a case which
had been transferred to the juvenile court under § 42-364(5).
The juvenile court’s order doing so was void, and we must
vacate the void order.
CONCLUSION
We conclude that the juvenile court acted beyond its statu-
tory authority and that its order, filed in the district court
proceeding, was void. We vacate the void order. Because the
last order that was not void was the order transferring the pro-
ceeding to the juvenile court, that order remains effective but
interlocutory. The cause should proceed based upon the district
court’s order transferring the matter to juvenile court.
In disposing of this appeal, we observe that over a year has
elapsed since Trevor filed his motion seeking to modify the
parenting time and Christine filed a counterclaim to terminate
his parental rights. No relief has been afforded either party.
We encourage the juvenile court to focus on the best inter-
ests of the child and to move this matter promptly to a final
disposition.
Vacated and remanded.