In re Interest of Dana H.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/09/2018 12:13 AM CST
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF DANA H.
Cite as 299 Neb. 197
In re I nterest of
Dana H., a child
under 18 years of age.
State of Nebraska, appellee,
v. Dana H., appellant.
___ N.W.2d ___
Filed March 2, 2018. No. S-17-612.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
3. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
4. 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.
5. Juvenile Courts: Final Orders: Appeal and Error. A proceeding
before a juvenile court is a “special proceeding” for appellate purposes.
6. Final Orders: Words and Phrases: Appeal and Error. A substantial
right is an essential legal right, not a mere technical right. But, for pur-
poses of appeal, it is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
7. Minors: Proof. The exhaustion requirement of Neb. Rev. Stat.
§ 43-251.01(7)(a) (Reissue 2016) demands evidence establishing that
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF DANA H.
Cite as 299 Neb. 197
no other community-based resources have a reasonable possibility for
success or that all options for community-based services have been thor-
oughly considered and none are feasible.
8. ____: ____. The requirement of Neb. Rev. Stat. § 43-251.01(7)(b)
(Reissue 2016) of a significant risk of harm to a juvenile is satisfied by
a showing of a reasonable likelihood that the juvenile will suffer a mate-
rial or tangible detriment.
Appeal from the Separate Juvenile Court of Lancaster
County: Linda S. Porter, Judge. Affirmed.
Joe Nigro, Lancaster County Public Defender, and Mark D.
Carraher for appellant.
Joe Kelly, Lancaster County Attorney, and Maureen E.
Lamski for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Cassel, J.
I. INTRODUCTION
Dana H. timely appeals from two interim juvenile court
orders, one dictating an out-of-home placement and another
continuing it. The appeal presents two issues. First, was it
taken from a final order? It was, because the placement order
substantially affected a substantial right for an indefinite
duration. Second, did the placement orders comply with the
statutory requirements of (1) exhaustion of “[a]ll available
community-based resources”1 and (2) “significant risk of
harm to the juvenile or community”2 from maintaining in-
home placement? After interpreting the statute, we conclude
the placement complied with both requirements. Therefore,
we affirm.
1
Neb. Rev. Stat. § 43-251.01(7)(a) (Reissue 2016).
2
§ 43-251.01(7)(b).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF DANA H.
Cite as 299 Neb. 197
II. BACKGROUND
In October 2014, the State filed a supplemental petition
alleging that as a juvenile, Dana unlawfully possessed a switch-
blade knife in violation of a city ordinance. The separate juve-
nile court found the allegations to be true by proof beyond a
reasonable doubt and determined that Dana was a juvenile as
defined by Neb. Rev. Stat. § 43-247(1) (Supp. 2015). Dana
unsuccessfully appealed his adjudication, and no disposition
order was entered.3
While the appeal was pending, the State filed a second
supplemental petition alleging that Dana was habitually tru-
ant from school. Dana entered a plea of no contest, and the
separate juvenile court found the allegations to be true by proof
beyond a reasonable doubt. Final disposition on the second
supplemental petition was consolidated with disposition of
the supplemental petition. The court continued the matter and
entered interim orders.
The court entered numerous successive interim orders, con-
tinuing prior orders and requiring further in-home services to
Dana and his parents, with whom he resided. After the in-home
services proved ineffective, the court ordered placement at
Omaha Home for Boys as soon as placement was available.
It specifically found that reasonable efforts were made and
all available community resources expended to maintain Dana
in his home and that it would be contrary to Dana’s welfare
to remain in the home due to his refusal to attend school or
cooperate with the offered in-home services. The juvenile
court continued this interim order and continued the disposi-
tional hearing.
Dana appealed, and we moved the case to our docket.4
3
See In re Interest of Dana H., No. A-15-246, 2015 WL 7733998 (Neb.
App. Dec. 1, 2015) (selected for posting to court website).
4
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF DANA H.
Cite as 299 Neb. 197
III. ASSIGNMENTS OF ERROR
Dana assigns, restated, that the juvenile court erred when it
ordered him to be removed from his family home when there
was insufficient evidence that all community-based resources
had been exhausted and that maintaining him in his fam-
ily home presented a significant risk of harm to him or
the community.
IV. STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches a conclusion independently of the
juvenile court’s findings.5
[2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.6
V. ANALYSIS
1. Jurisdiction
[3] The State argues that the interim orders providing for
placement of Dana in a group home were not final, appeal-
able orders. 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.7
Our opinion in In re Interest of Zachary B.8 accurately sets
forth the analysis for the finality of orders in juvenile court
proceedings. And as discussed in that case, it is necessarily a
fact intensive inquiry.
[4] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the
three types of final orders which may be reviewed on appeal
5
In re Interest of Lilly S. & Vincent S., 298 Neb. 306, 903 N.W.2d 651
(2017).
6
In re Interest of Zachary B., ante p. 187, ___ N.W.2d ___ (2018).
7
In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017).
8
In re Interest of Zachary B., supra note 6.
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299 Nebraska R eports
IN RE INTEREST OF DANA H.
Cite as 299 Neb. 197
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.9 Here, only
the second type could apply.
[5,6] A proceeding before a juvenile court is a “special
proceeding” for appellate purposes.10 And a substantial right
is an essential legal right, not a mere technical right.11 But,
for purposes of appeal, it is not enough that the right itself be
substantial; the effect of the order on that right must also be
substantial.12
Here, our analysis differs somewhat from the situation in
In re Interest of Zachary B. There, because the juvenile was
not residing with a parent, the juvenile court’s interim order
affected only a purely statutory right to remain in his home.
Moreover, the order’s effect upon the right was not substan-
tial.13 Here, the same statutory right applied. But because Dana
was residing with his parents, a constitutionally protected right
also applied.14 And the situation here also differed in that the
effect of the order on those rights was substantial.
In this regard, we are guided in our analysis by our decision
in In re Interest of Becka P. et al.15 In that case, we reviewed
the language of a juvenile court’s orders appointing an educa-
tional surrogate and the court’s remarks on the record to find
an appealable order where there was no limit on the duration
or scope of the educational surrogate’s appointment. Here, the
9
In re Interest of Becka P. et al., supra note 7.
10
Id.
11
See id.
12
See In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).
13
See, § 43-251.01(7); In re Interest of Zachary B., supra note 6.
14
See In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004).
15
In re Interest of Becka P. et al., supra note 7.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF DANA H.
Cite as 299 Neb. 197
juvenile court’s remarks likewise indicated no limit on the
duration of the out-of-home placement.
Theoretically, the juvenile court could change its mind
about placement upon entering a dispositional order. But the
court stated that it wanted “to make sure that [Dana is] settled
into the program before we enter final disposition.” This dem-
onstrated that it intended the order to be of indefinite duration
and to be continued in the final disposition. Indeed, the court’s
record reveals a practice of simply continuing or modifying
prior interim orders, by continuing the dispositional hearing
12 times over the course of a year before it entered the orders
at issue.
Evidence of the average length of placements at the Omaha
Home for Boys provides little help in our analysis. The record
establishes that the average length of stay was anywhere
between 6 to 14 months. Six months might suggest a mere
temporary effect, but an out-of-home placement of 14 months
would substantially affect Dana’s right to reside in his family
home with his parents. We cannot say that the order contem-
plated only a temporary, short-term placement.
Because the effect of the juvenile court’s order authoriz-
ing placement with the Omaha Home for Boys appears to be
of indefinite duration and significantly affects a substantial
right, it was a final, appealable order under § 25-1902. We
now proceed to consider the merits of the error assigned
on appeal.
2. Merits
Dana assigns that the juvenile court erred in removing him
from his family home. He argues that the relevant statutory
requirements were not met, because there was insufficient evi-
dence that all community-based resources had been exhausted
and that maintaining him in his family home presented a sig-
nificant risk of harm to him or the community. After a review
of the statute and the record, we disagree.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF DANA H.
Cite as 299 Neb. 197
(a) Exhaustion of All Available
Community-Based Resources
The key subsection provides:
A juvenile alleged to be a juvenile as described in subdi-
vision (1), (2), (3)(b), or (4) of section 43-247 shall not be
placed out of his or her home . . . unless:
(a) All available community-based resources have been
exhausted to assist the juvenile and his or her family; and
(b) Maintaining the juvenile in the home presents a
significant risk of harm to the juvenile or community.16
The interpretation of this particular statute is an issue of
first impression. But in an earlier case,17 we considered a
similar statutory requirement. There, the statute allowed for
the commitment of a juvenile to a youth rehabilitation and
treatment center—a more restrictive placement than the one
at issue here—only after the juvenile has exhausted “all levels
of probation supervision and options for community-based
services.”18
This comparable requirement “[did] not imply that a juve-
nile court must ensure that every conceivable probationary
condition has been tried and failed.”19 Instead, the statute
required a careful review of the juvenile’s file and record,
after which the Office of Probation Administration must report
“whether any such untried conditions of probation or commu-
nity-based services have a reasonable possibility for success
or that all levels of probation and options for community-
based services have been studied thoroughly and that none
are feasible.”20
16
§ 43-251.01(7).
17
In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).
18
Neb. Rev. Stat. § 43-286(1)(b)(ii) (Supp. 2013).
19
In re Interest of Nedhal A., supra note 17, 289 Neb. at 716, 856 N.W.2d at
569.
20
Id.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF DANA H.
Cite as 299 Neb. 197
[7] We apply the same interpretation to the statute before
us. The exhaustion requirement of § 43-251.01(7)(a) demands
evidence establishing that no other community-based resources
have a reasonable possibility for success or that all options for
community-based services have been thoroughly considered
and none are feasible. The evidence in the record satisfied
this requirement.
The juvenile probation officer assigned to work with Dana
testified that Dana had been under probation supervision for
several years without improving his school attendance. The
officer testified that Dana had not cooperated with “tracker
services” or evening reporting services and had minimally
cooperated with the provided intensive family preservation
serv­ices. He testified that there were no other appropriate or
necessary services available to address Dana’s school attend­
ance issues. And although Dana argues that there were other
in-home community services available, the record demon-
strates that similar services had not been successful.
In the same way as in the earlier case, we decline to inter-
pret § 43-251.01(7) to require services that have already been
proven to be unsuccessful. The record establishes that other
options for community-based services were thoroughly con-
sidered but deemed inappropriate or unnecessary. Accordingly,
we find that the available community-based resources were
“exhausted” within the meaning of the statute.
(b) Significant Risk of Harm
Regarding the second requirement, Dana argues that he did
not pose a significant risk to the community or to himself and
that his truancy did not amount to a significant risk of harm to
himself. The State did not argue that Dana posed a significant
risk of harm to the community. But we disagree with Dana’s
argument that his behavior posed no significant risk of harm
to himself. He interprets “harm” too narrowly and disregards
the juvenile court’s authority and statutory duty to issue orders
in the child’s best interests.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF DANA H.
Cite as 299 Neb. 197
[8] We understand “harm” to encompass not only physical
injury and hurt, but also any “material or tangible detriment.”21
Thus, the requirement of § 43-251.01(7)(b) of a significant risk
of harm to a juvenile is satisfied by a showing of a reasonable
likelihood that the juvenile will suffer a material or tangible
detriment. Here, the juvenile court found Dana to be at seri-
ous risk of harm and detriment due to his refusal to attend
school and develop basic life skills while living in the family
home. This finding is consistent with the public policy behind
the compulsory education statutes22 and the juvenile court’s
jurisdiction to intercede where a juvenile is habitually truant
or otherwise has his or her educational needs neglected by a
parent or guardian.23
Before ordering out-of-home placement, the juvenile court
made the correct statutory findings. These findings were sup-
ported by the evidence. Upon our de novo review, we find no
merit to Dana’s arguments.
VI. CONCLUSION
For the reasons set forth above, the orders of the juvenile
court are affirmed.
A ffirmed.
Wright, J., not participating.
21
Black’s Law Dictionary 832 (10th ed. 2014) (defining “harm”).
22
See Neb. Rev. Stat. § 79-201 et seq. (Reissue 2014).
23
See In re Interest of Becka P. et al., supra note 7 (finding juvenile court
had statutory authority to appoint educational surrogate to direct education
of children within meaning of § 43-247(3)(a)). See, also, In re Interest of
Laticia S., 21 Neb. Ct. App. 921, 844 N.W.2d 841 (2014) (finding juvenile at
risk for harm and within meaning of child neglect statute due to missing
school).