In re Interest of Kathryn S. & Lauren S.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF KATHRYN S. & LAUREN S.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF KATHRYN S. AND LAUREN S., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
DEVI S., APPELLEE, AND DAVID S., INTERVENOR-APPELLANT.
Filed February 17, 2015. No. A-14-576.
Appeal from the Separate Juvenile Court of Douglas County: ELIZABETH CRNKOVICH,
Judge. Affirmed.
Jeffrey A. Wagner, of Schirber & Wagner, L.L.P., for intervenor-appellant.
Lisa C. Lewis, of Marks, Clare & Richards, L.L.C., for appellee Devi S.
No appearance for appellee State of Nebraska.
MOORE, Chief Judge, and INBODY and PIRTLE, Judges.
MOORE, Chief Judge.
INTRODUCTION
David S., father of Kathryn S. and Lauren S., appeals from the order of the separate
juvenile court for Douglas County that placed the children with him but did not award him
custody.
BACKGROUND
On February 13, 2014, the State filed a petition to adjudicate the children under Neb.
Rev. Stat § 43-247(3)(a), alleging that they lacked proper parental care by reason of certain
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alleged faults or habits of their mother, Devi S., which placed the children at risk for harm. No
allegations about, or reference to, David were included in the petition. A motion for temporary
custody was filed simultaneously with the petition, seeking an order of immediate temporary
custody of the children in the Nebraska Department of Health and Human Services (DHHS) for
placement in foster care to exclude the home of the mother. A sworn affidavit from a Child and
Family Services Specialist for DHHS was attached to the motion. The affidavit states, in relevant
part, that David is the biological father of the children, he lives in Des Moines, Iowa, and Devi
and David have joint legal custody of the children. The affidavit recites the problems that arose
with Devi while the children were in her care, and states that in January 2014, David retrieved
the children, enrolled them in school in Iowa, and filed for emergency custody through his
attorney. According to the affidavit, David informed the specialist that the custody hearing was
continued until March 2014, and that his attorney advised him to return the children to Devi
pending the hearing. David refused to return the children to Devi and she thereafter picked the
children up from their school in Iowa on February 12 and returned to Omaha with them. The
specialist stated her opinion that the “placement of [the] children [should] remain in the care of
[DHHS], placement to EXCLUDE the parental home of [Devi], and INCLUDE the home of
[David].” An order for immediate custody was entered on February 13, ordering DHHS to take
custody of the children for placement in foster care or other appropriate placement, to exclude
Devi’s home.
On February 21, 2014, David filed a motion for placement, alleging that he is the natural
father of the children; he has filed a complaint in intervention; and that since the case’s inception
the children have been placed with him. David alleged that placement with him is in the best
interests of the children. We do not have the complaint in intervention in the record before us.
On February 27, a hearing was held on continued detention, the complaint to intervene, and the
motion for placement. David was present at this hearing and represented by counsel. No
evidence was adduced at this hearing, although there was brief discussion about ongoing custody
litigation concerning the family in Iowa. In an order entered the same day, the court noted that
the parties had until March 27 to answer the complaint to intervene and continued the detention
hearing and motion for placement to March 7. The court ordered that pending further hearing,
the children were to remain in the custody of DHHS for appropriate care in a neutral foster
home, with supervised visitation by both parents.
On March 7, 2014, both parents again appeared before the juvenile court and with
counsel. Devi was advised of her rights as required by Neb. Rev. Stat. § 43-279.01 (2104 Cum.
Supp.) and her counsel stated that Devi was not resisting continued detention by DHHS. David
was informed of his right to intervene in the action and to be represented by an attorney. David
was not asked whether he resisted continued custody of the children in DHHS or foster
placement. In the order from this hearing entered on March 10, the court found that the State
requested continued detention and detention was not resisted, that it would be contrary to the
health, safety or welfare of the children to be returned home at this time, that it is in the
children’s best interests to remain in the temporary custody of DHHS, and that both parents
should have reasonable rights of supervised visitation.
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On March 26, 2014, David filed another Motion for Placement. He alleged that the
children were in the custody of DHHS and had been placed in foster care, and that placement
with him would be in the best interests of the children. Also on March 26, Devi filed an Answer
to Complaint to Intervene and David filed a Reply on April 2. On April 4, a hearing was held
following which an order was entered on April 9. This order, among other things, ordered
psychiatric and psychological evaluations for Devi, and continued the hearing on the motion for
placement and complaint to intervene to May 9. On April 14, a Nunc Pro Tunc Order was
entered, wherein the court corrected the April 9 order, finding that David’s complaint to
intervene was sustained and David was granted leave to intervene and be made a party to these
proceedings. The hearing on the motion for placement was continued to May 29 (which was
subsequently continued to June 2 on the court’s own motion).
At the June 2, 2014 hearing, the juvenile court addressed David’s motion for placement.
No testimony was given, although the petition, the motion for temporary custody (and attached
affidavit), and previous court orders were admitted as exhibits. At the outset of the hearing,
David’s attorney advised the court that the relief he was seeking was that DHHS be relieved of
responsibility for these children and for the court to “place” the children with David. David’s
attorney noted that the State may proceed as it wishes after that, and “then any custody issues
would have to be resolved in the appropriate forum. This is not a custody hearing. I think we’re a
District Court hearing today.”
After offering the exhibits noted above, David’s attorney argued that “absent allegations
against [David], the parental preference doctrine controls here and he should receive placement
of his children. [DHHS] should be relieved of responsibility [concerning the children]”. Devi’s
attorney argued that there is a good reason why the children shouldn’t be immediately placed
with David, however, Devi did not adduce any evidence in that regard. The guardian ad litem for
Devi argued that there are concerns about David’s ability to parent as well, but again, no
evidence was adduced. Counsel for DHHS agreed that David was entitled to placement of the
children in the absence of any allegations against him, but argued that relieving DHHS of the
care and custody of the children would not be in the best interests of the children. Counsel for
DHHS indicated that such would hinder the ability of DHHS to provide services, and because the
case was still at the pre-adjudication phase, it was premature to relieve the Department. DHHS
counsel also pointed out that David’s motion was for placement and did not seek “full custody”
or request that DHHS be relieved. The county attorney expressed concern about awarding
“custody” to David because Devi is the custodial parent in the Polk County, Iowa court but
agreed that placement should be with David. Again, neither DHHS nor the State offered any
evidence. At the conclusion of the hearing, the court stated that it was not going to grant full
custody to David as that should be for “Polk County” to decide. Because of the lack of evidence
and the support of DHHS and the State, the court agreed to place the children with David, but
retained custody in DHHS. The written order confirming this ruling was entered on June 5,
finding that David’s motion for placement is sustained and ordered the children to remain in the
custody of DHHS for placement with David. David timely appeals from this order.
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ASSIGNMENTS OF ERROR
On appeal, David asserts that (1) the juvenile court erred in failing to place custody of the
children with him when there is no evidence that he is unfit to have custody and (2) the
continued placement of custody of his children with DHHS violates his rights of substantive and
procedural Due Process.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches its
conclusions independently of the juvenile court’s findings. In re Interest of Shayla H., 289 Neb.
473, 855 N.W.2d 774 (2014).
ANALYSIS
Jurisdiction.
Before reaching the issues presented in this appeal, we must first determine whether we
have jurisdiction to hear this appeal. The initial question is whether David can appeal the June 5,
2014 order which continued custody of the children with DHHS, given that the previous order of
March 10 also continued custody with DHHS. David did not appeal from the March 10 order.
The general rule is that a dispositional order which merely continues a previous determination is
not an appealable order. See, e.g., In re Interest of Diana M., 20 Neb. Ct. App. 472, 825 N.W.2d 811
(2013); In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999).
David argues that he was not allowed to intervene in this matter until April 14, 2014 and
that the June 2 hearing on his motion for placement was his first opportunity to be heard.
Therefore, he asserts that the June 5 order resulting therefrom was the order which finally
disposed of all issues in his motion. David argues that prior to June 5, there was not an order that
pertained specifically to him regarding detention as all prior orders were issued based on the
filings against Devi only. He asserts that the June 5 order is the first order that specifically
addressed his request for custody of the children.
We agree with David that the June 5, 2014 order is a final, appealable order and we have
jurisdiction to hear his appeal. In reviewing the record, it is clear that the court did not address
any issues with respect to David until the hearing on June 2, with the exception of providing
supervised visitation pending the continued hearings on detention, David’s complaint to
intervene, and David’s motion for placement. At the March 7 hearing which resulted in the
March 10 order, only Devi was advised of her rights as required by Neb. Rev. Stat. § 43-279.01.
David, on the other hand, was advised only of his right to intervene in the proceeding and to have
an attorney appointed for him if granted leave to intervene. At the March 7 hearing, only Devi
was asked if she objected to the continued detention by DHHS and only Devi consented to
continued detention.
Here, the question is whether David’s failure to appeal from the order of March 10, 2014
precludes his appeal from the June 5 order. We recognize that a preadjudication order granting
continued detention affects a parent’s substantial right. In re Interest of Tayla R., 17 Neb. Ct. App.
595, 767 N.W.2d 127 (2009). In addition, Neb. Rev. Stat. § 43-2,106.01(2)(c) provides that a
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“parent” may appeal from a final order of the juvenile court. While David may have been able to
appeal from the March 10 order given his status as a parent, his failure to do so does not preclude
him from appealing the June 5, 2014 order, which was the final order ruling upon his motion for
placement. A similar situation was presented in the case of In re Interest of Stephanie H., 10
Neb. Ct. App. 908, 639 N.W.2d 668 (2002). In that case, the juvenile court entered orders on July 30
and August 9, 2001, which continued the children’s detention with the Department. The order of
August 9 also denied the mother’s request for custody. The mother filed her notice of appeal on
August 21. We determined that the August 9 order was a final, appealable order, and that we had
jurisdiction.
We conclude that the order of June 5, 2014 is a final, appealable order, and we have
jurisdiction to hear this appeal.
Failure to Place Custody With Father.
David argues that without allegations or evidence as to his unfitness, it was error for the
juvenile court to continue their custody in DHHS.
Of significance to our decision is that the relief sought in David’s motion for placement is
that the children be “placed” with him. There is no allegation in the motion that continued
custody by DHHS should be eliminated or request that the care and custody of the children be
given to David. Although at the hearing on June 2, 2014, David’s attorney argued that DHHS
should be “relieved” of its responsibility, he further stated that placement was being sought and
that it was not a custody hearing. Nevertheless, in this appeal, David argues that is entitled to
custody. David relies upon In re Interest of Stephanie H., supra, in support of his argument. In
that case, a juvenile petition was alleging that the children were within the meaning of § 43-
247(3)(a) because they lacked proper parental care by reason of the father’s faults, who was the
custodial parent by virtue of a district court order in a divorce action with the mother. The
children were removed from the father’s care and placed with DHHS for placement in foster
care. The noncustodial mother was not referenced in the petition, however, she thereafter moved
for a detention review and asked for immediate custody of her children. At this detention review
hearing, the mother was formally allowed to intervene. The mother presented evidence,
including the fact that she had obtained a temporary custody order in the district court, following
which the juvenile court denied her motion for placement.
On appeal in Stephanie H., this court first discussed the burden of proof in a detention
hearing in the situation where the petition is filed as to only one parent. We held that:
[t]he burden is upon the State to allege and prove in a detention hearing that the juvenile
court should not place children with their other natural parent after the expiration of the
first 48 hours of emergency detention under Neb. Rev. Stat. § 43-250(4)(Cum. Supp.
2000) during a period of temporary detention pending adjudication spawned by
allegations under § 43-247(3)(a) against their custodial parent.
In re Interest of Stephanie H., 10 Neb. Ct. App. at 920, 639 N.W.2d at 679. As part of our rationale
we referred to the recognized liberty interest parents have in raising their children and the due
process protection which is afforded the parent-child relationship. Id. See also, In re Interest of
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Borius H. et al., 251 Neb. 397, 558 N.W.2d 31 (1997); In re Interest of L.V., 240 Neb. 404, 482
N.W.2d 250 (1992); In re Interest of Amanda H., 4 Neb. Ct. App. 293, 542 N.W.2d 79 (1996). We
concluded in Stephanie H. that “due process require[d] notice of specific allegations against [the
mother] with proof thereof by the State.” 10 Neb. Ct. App. at 922, 639 N.W.2d at 680.
Most of our analysis in Stephanie H. focused on the fact that the juvenile court denied the
mother’s request for custody without any evidence of unfitness and instead placed them in foster
care. Finding a denial of due process and no allegations of proof by the State that the mother
should not have custody of her children, we reversed the order continuing placement of the
children with DHHS, and we directed the juvenile court to place the children with the mother,
pending adjudication of the allegations against the father in the juvenile petition. We noted that
our decision did not preclude the State from coming forward, once the juvenile court reacquired
jurisdiction upon receipt of our mandate, with allegations and proof that the mother was not a fit
custodial parent of her children.
Because the words “placement” and “custody” are used somewhat interchangeably in the
Stephanie H. case, it is not entirely clear from our opinion in that case whether DHHS retained
custody of the children with placement in the mother or whether the mother was to receive
custody to the exclusion of DHHS. Nevertheless, we find that the result reached in the instant
case is essentially the same as we decided in Stephanie H.--the children were placed with the
parent against whom no allegations or evidence of unfitness was presented, pending adjudication
of the allegations of the other parent in the juvenile petition and possible further proceedings as
to the parent with placement.
While it is true that there was no evidence adduced in this case to show that David is
unfit, the procedural posture of this case leads us to conclude that the decision to place the
children with David but retain custody in DHHS, at this pre-adjudication stage of the
proceedings, was not in error. The motion for placement filed by David did not allege that he
should be awarded the care and custody of the children or that DHHS should be relieved of its
responsibility of the children. The parties were not on notice that anything other than placement
was being sought, and thus, were not on notice that evidence concerning custody was required.
The State and DHHS agreed with David’s placement request but argued that further investigation
was necessary with regard to custody, particularly given the pending proceedings in Iowa. Under
the particular facts of this case, we agree. By reaching this conclusion, we do not preclude David
from pursuing a change custody of the children from DHHS to himself upon a proper motion and
an evidentiary hearing.
We find no error by the juvenile court in awarding David placement of the children, as he
requested, but retaining custody in DHHS pending adjudication of the allegations against Devi in
the juvenile petition. Likewise, we find no due process violation.
CONCLUSION
The juvenile court did not err or violate David’s due process rights in placing the minor
children with David but retaining custody in DHHS pending adjudication of the juvenile petition.
AFFIRMED.
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