In re Interest of Giavonni P.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/10/2020 09:06 AM CST
- 580 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
In re Interest of Giavonni P., a child
under 18 years of age.
State of Nebraska, appellee, v. Nebraska
Department of Health and Human
Services, appellant.
___ N.W.2d ___
Filed November 22, 2019. Nos. S-18-1130, S-18-1135.
1. 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.
2. Statutes: Judgments: Appeal and Error. The meaning of a statute is a
question of law, which an appellate court resolves independently of the
trial court.
3. Judgments: Final Orders. Orders purporting to be final judgments, but
that are dependent upon the occurrence of uncertain future events, do
not necessarily operate as “judgments” and may be wholly ineffective
and void as such.
4. ____: ____. A conditional judgment may be wholly void because it does
not “perform in praesenti” and leaves to speculation and conjecture what
its final effect may be.
5. ____: ____. While conditional orders will not automatically become
final judgments upon the occurrence of the specified conditions, they
can operate in conjunction with a further consideration of the court as
to whether the conditions have been met, at which time a final judgment
may be made.
6. Final Orders: Appeal and Error. The three types of final orders which
may be reviewed on appeal are (1) an order affecting a substantial right
in an action that, in effect, determines the action and prevents a judg-
ment; (2) an order affecting a substantial right made during a special
proceeding; and (3) an order affecting a substantial right made on sum-
mary application in an action after a judgment is rendered.
- 581 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
7. Juvenile Courts: Words and Phrases. Juvenile court proceedings are
special proceedings.
8. Moot Question: Jurisdiction. Mootness is a justiciability doctrine that
operates to prevent courts from exercising jurisdiction.
9. Moot Question: Jurisdiction: Courts: Judgments: Dismissal and
Nonsuit. An actual case or controversy is necessary for the exercise of
judicial power. In the absence of an actual case or controversy requiring
judicial resolution, it is not the function of the courts to render a judg-
ment that is merely advisory. Therefore, as a general rule, a moot case is
subject to summary dismissal.
10. Moot Question: Records: Appeal and Error. When a party or parties
are aware that appellate issues have become moot during the pendency
of the appeal and such mootness is not reflected in the record, in the
interest of judicial economy, a party may file a suggestion of mootness
as to the issue or issues claimed to be moot.
11. Moot Question. Mootness refers to events occurring after the filing
of a suit which eradicate the requisite personal interest in the dispute’s
resolution that existed at the beginning of the litigation.
12. Actions: Moot Question. An action becomes moot when the issues
initially presented in the proceedings no longer exist or the parties lack
a legally cognizable interest in the outcome of the action.
13. Moot Question: Words and Phrases. A moot case is one which seeks
to determine a question that no longer rests upon existing facts or
rights—i.e., a case in which the issues presented are no longer alive.
14. Moot Question. The central question in a mootness analysis is whether
changes in circumstances that prevailed at the beginning of litigation
have forestalled any occasion for meaningful relief.
15. Moot Question: Appeal and Error. Under certain circumstances, an
appellate court may entertain the issues presented by a moot case when
the claims presented involve a matter of great public interest or when
other rights or liabilities may be affected by the case’s determination.
16. Moot Question: Words and Phrases. In determining whether the pub-
lic interest exception should be invoked, a court considers the public or
private nature of the question presented, the desirability of an authorita-
tive adjudication for future guidance of public officials, and the likeli-
hood of future recurrence of the same or a similar problem.
Appeal from the Separate Juvenile Court of Douglas County:
Christopher E. Kelly, Judge. Affirmed.
Neleigh N. Boyer and Marcie Bergquist, Special Assistant
Attorneys General, of Nebraska Department of Health and
Human Services, for appellant.
- 582 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
Jeffrey A. Wagner and Kyle J. Flentje, of Wagner, Meehan
& Watson, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
Following orders of the Douglas County Separate Juvenile
Court, Giavonni P. was placed at the Lincoln Regional Center
(LRC). The Nebraska Department of Health and Human
Services (Department) appeals. We affirm.
II. BACKGROUND
Giavonni was adjudicated under Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016) in April 2010 and placed with
the Department. He has been in a variety of placements since
that time. In October 2017, Giavonni was adjudicated under
§ 43-247(1) and placed at Capstone, a psychiatric residential
treatment facility (PRTF) in Detroit, Michigan. In late 2017,
Giavonni was also placed on probation with the office of
juvenile probation following adjudication and disposition on a
charge of theft by unlawful taking.
On October 9, 2018, Giavonni’s guardian ad litem filed a
motion alleging that placement in the Capstone program was
no longer in Giavonni’s best interests. The guardian ad litem
requested that Giavonni be returned to Nebraska and placed at
the LRC.
A hearing was held on that motion on October 22, 2018.
The juvenile court ordered Giavonni returned to Nebraska
and placed at the Douglas County Youth Center (DCYC) for
secure detention. The juvenile court scheduled further place-
ment review for November 9.
At the November 9, 2018, hearing, Giavonni was repre-
sented individually and also by a guardian ad litem. Giavonni’s
father appeared with counsel, and Douglas County and the
Department appeared with separate representation. On appeal,
- 583 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
only the Department and the guardian ad litem filed briefs. The
State (represented by Douglas County) waived oral argument.
No other party has entered an appearance.
At the placement review hearing, Giavonni’s family perma-
nency specialist reviewed Giavonni’s recent history. That his-
tory included flight from Capstone, the PRTF in Detroit; vio-
lent behavior toward other residents and staff at Capstone; and
property destruction. In addition, while in Detroit, Giavonni
refused to engage in therapy or take his medications. Another
witness testified that Capstone was more like jail than a treat-
ment center and reinforced Giavonni’s refusal to leave his
room or to interact with others in any setting. The witness also
reiterated that Giavonni was not taking his medications while
at Capstone.
Upon his return to Nebraska and placement at the DCYC,
Giavonni was again involved with acts of aggression. He
had not met with a therapist, but was apparently taking his
medication.
Other evidence presented showed that there were concerns
with placing Giavonni at any facility which was not secure and
which would require him to have a roommate, due to the fact
that he was a flight risk and was aggressive. A psychiatrist tes-
tified that Giavonni needed treatment in a locked facility such
as an adolescent PRTF, medical stabilization, and placement
in a community setting. There was evidence that there were
only approximately 20 facilities in the United States that met
Giavonni’s treatment criteria. Of the facilities that responded to
an inquiry, none was able to admit Giavonni, either because of
his violent history or because of space constraints.
Following the hearing, the juvenile court entered an order
in each case stating that if Giavonni was not placed in a PRTF
by November 26, 2018, the Douglas County sheriff should
deliver him to the LRC, where he was to remain until a PRTF
placement could be found. On November 27, the court was
advised at a placement check hearing that Giavonni had been
placed at the LRC.
- 584 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
The Department filed a notice of appeal in each case on
December 3, 2018, indicating that it appealed from the juve-
nile court’s November 9 order (the notice of appeal is dated
November 28, 2018). On May 6, 2019, Giavonni was moved
from the LRC into a new placement. Prior to oral arguments,
the guardian ad litem filed a suggestion of mootness, which
we denied.
III. ASSIGNMENTS OF ERROR
The Department assigns that the juvenile court erred in
ordering that Giavonni (1)(a) be placed at the LRC (b) on a
specific date and (2) remain at the LRC until further order of
the court or until a placement was unanimously agreed upon
by the parties.
IV. STANDARD OF REVIEW
[1,2] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings.1 The meaning of a statute is a ques-
tion of law, which an appellate court resolves independently of
the trial court.2
V. ANALYSIS
The Department appeals from the orders of the juvenile
court placing Giavonni at the LRC. While its argument varies
slightly based on the underlying adjudication (law violation
versus neglect), the crux of the Department’s assertion is that
the placement orders usurped the LRC’s statutory author-
ity to administer and manage its patient admission and dis-
charge process.
1. Final Order
In each case, the guardian ad litem argues that this court
lacks a final order, both because the juvenile court’s order was
1
In re Interest of Reality W., 302 Neb. 878, 925 N.W.2d 355 (2019).
2
Id.
- 585 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
conditional and because that order did not affect a substantial
right. We conclude that the order in each case is final.
(a) Conditional Order
The guardian ad litem first argues that the juvenile court’s
order in each case was not final because it was conditional: at
the time the order was entered, no one knew “when or even
whether Giavonni would be accepted by a [PRTF] and if no
such facility arose, there is no direction given by the court,
creating speculation and conjecture, making such order a con-
ditional judgment.”3
[3-5] Orders purporting to be final judgments, but that are
dependent upon the occurrence of uncertain future events, do
not necessarily operate as “judgments” and may be wholly
ineffective and void as such.4 We have explained that a con-
ditional judgment may be wholly void because it does not
“perform in praesenti” and leaves to speculation and conjecture
what its final effect may be.5 We have also explained that while
conditional orders will not automatically become final judg-
ments upon the occurrence of the specified conditions, they can
operate in conjunction with a further consideration of the court
as to whether the conditions have been met, at which time a
final judgment may be made.6
The juvenile court’s order in each case stated that the
Department and Giavonni’s probation officer should seek
“appropriate secure [PRTF] placement” and that “if . . .
Giavonni . . . is not accepted for placement by November 26,
2018[,] . . . then [he] shall be . . . delivered by the Douglas
County Sheriff to the [LRC] in Lincoln, Nebraska.” The court
went on to order that Giavonni “remain in the [LRC] . . . until
. . . accepted for placement at an accredited, secure [PRTF],
3
Brief for appellee guardian ad litem in case No. S-18-1130 at 14.
4
Jensen v. Jensen, 275 Neb. 921, 750 N.W.2d 335 (2008).
5
Id.
6
Id.
 - 586 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
contingent on written approval” of the guardian ad litem, the
Department, and Giavonni’s probation officer, attorney, and
treatment team, or, “lacking such unanimous approval, until
further Order of the Court.” And on November 27, 2018, the
day after Giavonni was moved to the LRC, a placement check
hearing was held, at which time an order acknowledging
Giavonni’s placement and the setting of the next hearing date
were entered in each case.
In each case, when considering the November 27, 2018,
order in light of the November 9 order, it is clear that the
juvenile court’s order is not conditional. There is no merit to
this argument.
(b) Order Affecting
Substantial Right
The guardian ad litem also argues that the juvenile court’s
order in each case was not final because it did not affect a sub-
stantial right of the Department.
[6] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the
three types of final orders that may be reviewed on appeal
are (1) an order affecting a substantial right in an action that,
in effect, 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 a judgment
is rendered.
[7] Juvenile court proceedings are special proceedings.7
Thus, to have a final order a juvenile court’s order must affect
a substantial right. We conclude herein that the juvenile court’s
order in each case does affect a substantial right in that it
affects the Department’s ability, through its role of directing
behavioral services, to administer admissions and care at the
LRC.8 As such, the order in each case is final.
7
In re Interest of Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019).
8
See Neb. Rev. Stat. §§ 71-806 and 83-109 (Cum. Supp. 2018).
- 587 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
2. Mootness
Since the Department filed its appeals, Giavonni has been
moved out of the LRC and into an out-of-state PRTF. As such,
Giavonni’s guardian ad litem filed in each appeal a motion to
dismiss on the ground of mootness. The Department agrees that
Giavonni’s appeals may be moot but, in its response, directed
us to a list of other juveniles who have been ordered to the
LRC. The Department asked that we utilize the public inter-
est exception to the mootness doctrine to address the question
presented by these appeals.
[8-10] Mootness is a justiciability doctrine that operates to
prevent courts from exercising jurisdiction.9 An actual case or
controversy is necessary for the exercise of judicial power.10
In the absence of an actual case or controversy requiring judi-
cial resolution, it is not the function of the courts to render
a judgment that is merely advisory.11 Therefore, as a general
rule, a moot case is subject to summary dismissal.12 It is well
established that when a party or parties are aware that appellate
issues have become moot during the pendency of the appeal
and such mootness is not reflected in the record, in the interest
of judicial economy, a party may file a suggestion of mootness
in the Nebraska Supreme Court or Nebraska Court of Appeals
as to the issue or issues claimed to be moot.13
[11-14] Mootness refers to events occurring after the fil-
ing of a suit which eradicate the requisite personal interest
in the dispute’s resolution that existed at the beginning of the
litigation.14 An action becomes moot when the issues initially
presented in the proceedings no longer exist or the parties lack
9
State ex rel. Peterson v. Ebke, 303 Neb. 637, 930 N.W.2d 551 (2019).
10
Id.
11
Id.
12
Id.
13
Id.
14
Id.
- 588 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
a legally cognizable interest in the outcome of the action.15 A
moot case is one which seeks to determine a question that no
longer rests upon existing facts or rights—i.e., a case in which
the issues presented are no longer alive.16 The central question
in a mootness analysis is whether changes in circumstances
that prevailed at the beginning of litigation have forestalled any
occasion for meaningful relief.
[15,16] Under certain circumstances, an appellate court may
entertain the issues presented by a moot case when the claims
presented involve a matter of great public interest or when
other rights or liabilities may be affected by the case’s determi-
nation.17 In determining whether the public interest exception
should be invoked, the court considers the public or private
nature of the question presented, the desirability of an authori-
tative adjudication for future guidance of public officials,
and the likelihood of future recurrence of the same or a simi-
lar problem.18
Following the filing of these appeals, the guardian ad litem
filed a suggestion of mootness and motion to dismiss in each
appeal, noting that Giavonni had been moved from the LRC to
a PRTF located outside of the state. Because the purpose of the
Department’s appeals was to challenge Giavonni’s placement
at the LRC, and because Giavonni was no longer placed at the
LRC, we agree that the appeals are moot.
But we also agree with the Department that given that
other juveniles are being placed at the LRC (or indeed that
Giavonni could be returned to the LRC) due to a lack of
other adequate programming, we should reach the merits of
these appeals under the public interest exception to the moot-
ness doctrine.
15
Id.
16
Id.
17
Id.
18
Id.
 - 589 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
3. Authority of Juvenile Court
The primary issue on appeal in each case is whether the
juvenile court had the authority to place Giavonni at the LRC,
on a date certain or otherwise. We find two particular statutes
dispositive in reaching this conclusion.
Most relevant to this inquiry is Neb. Rev. Stat. § 43-285(1)
(Cum. Supp. 2018). We have interpreted § 43-285(1) to give
juvenile courts the power to assent to and dissent from the
decisions of the Department; the purpose of § 43-285(1) was
to remove from the Department’s complete control a minor
whose care was given to the Department under the juvenile
code. The juvenile court has the power to assent to or dis-
sent from the “care, placement, medical services, psychiatric
services, training, and expenditures on behalf of each juvenile
committed to it.”19
Also of note is Neb. Rev. Stat. § 43-289 (Reissue 2016),
which provides:
The court may, when the health or condition of any
juvenile adjudged to be within the terms of such code
shall require it, cause the juvenile to be placed in a
public hospital or institution for treatment or special
care or in an accredited and suitable private hospital or
institution which will receive the juvenile for like pur-
poses. Whenever any juvenile has been committed to the
Department . . . , the [D]epartment shall follow the court’s
orders, if any, concerning the juvenile’s specific needs
for treatment or special care for his or her physical well-
being and healthy personality.
So, § 43-285(1) gives a juvenile court the power to assent to,
among other things, “care, placement, [and] psychiatric serv­
ices,” and § 43-289 takes this one step further in allowing a
court to order that a juvenile be placed in a “public hospital or
institution for treatment or special care.” In the circumstances
presented by Giavonni’s cases, the juvenile court did not agree
19
§ 43-285(1).
- 590 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
with the Department’s decisions with respect to Giavonni’s
care and placement. At the time of the hearing, Giavonni
was placed at the DCYC. The juvenile court concluded that
Giavonni would best be served with a placement in a PRTF,
but that failing that, the best placement for the safety of both
Giavonni and others was at the LRC. The juvenile court had
the authority to order this placement.
(a) Authority of LRC to House
and Treat Juveniles
We turn next to the Department’s contention that the juve-
nile court’s placement was outside its authority because the
juvenile code prohibits juveniles from being placed in a deten-
tion facility—whether juvenile or adult.
We reject this contention because it assumes that the LRC
is a detention facility, when Neb. Rev. Stat. § 71-911 (Reissue
2018) defines it as a hospital.20 We also observe that in con-
trast to the Department’s argument regarding this on appeal,
the Department suggested at oral arguments that the DCYC,
a juvenile detention facility, might be a placement choice
for Giavonni.
The Department’s arguments are without merit.
(b) Authority of LRC to Admit
and Discharge Patients
The Department next argues that the juvenile court has
interfered with the authority of the Department and the LRC to
prioritize admissions and decide upon patient discharges from
the LRC. The Department also notes that even if the juvenile
court has the general authority to place a juvenile at the LRC,
it does not have the ability to do so on a date certain.
Section 71-806(1) directs the Department’s division of
behavioral health to “act as the chief behavioral health author-
ity for the State of Nebraska, and [to] direct the administration
20
See, also, Neb. Rev. Stat. § 83-305 (Reissue 2014).
- 591 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
and coordination of the public behavioral health system,
including, but not limited to . . . [a]dministration and manage-
ment of the division, regional centers, and any other facili-
ties and programs operated by the division.” Section 83-109
states:
The Department . . . shall have general control over
the admission of patients and residents to all institutions
over which it has jurisdiction. . . . Transfers of patients or
residents from one institution to another shall be within
the exclusive jurisdiction of the [D]epartment and shall
be recorded in the office of the [D]epartment, with the
reasons for such transfers.
Neb. Rev. Stat. § 83-338 (Reissue 2014) sets priorities for
admission to hospitals for the mentally ill. The last paragraph
of § 43-289 notes that “[a] juvenile committed to any such
institution shall be subject to the control of the superintendent
thereof . . . .”
We concluded above that the juvenile court has the author-
ity to place an individual at the LRC. These statutes do not
change that result. Contrary to the Department’s contention,
we do not read the juvenile court’s order in each case to place
Giavonni at the LRC on a date certain. Rather, the juvenile
court ordered Giavonni placed in an appropriate PRTF by
November 26, 2018; failing that, Giavonni was to be placed
at the LRC. There is no merit to the Department’s arguments.
We emphasize, however, that our opinion should not be read to
allow courts to prioritize some individuals over others in the
admissions and placement process for the LRC.
(c) Best Interests
Finally, the Department argues that Giavonni’s best interests
are not being served by his placement at the LRC, observing
that such a placement was similar to the jail-like conditions at
Capstone. At the placement review hearing, the Department
suggested that placement at a youth rehabilitation and treat-
ment center would be appropriate, but it did not renew that
- 592 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF GIAVONNI P.
Cite as 304 Neb. 580
argument on appeal. At oral arguments, the Department sug-
gested that Giavonni should remain at the DCYC until a bed at
an appropriate PRTF could be located.
There was evidence at the hearing that the LRC was a
secure facility with the ability to provide Giavonni with the
psychiatric treatment he needed while allowing him to stay in
a single room, keeping himself and others safe. While we agree
that an adult facility is not the optimal choice for a juvenile
offender, given the lack of other options and Giavonni’s needs,
placement at the LRC was in his best interests at the time of
his placement.
VI. CONCLUSION
The decision of the juvenile court in each case is affirmed.
Affirmed.