State v. Kenneth K. (In Re Interest Ezra C.)

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/06/2018 08:13 AM CST
- 588 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF EZRA C.
Cite as 25 Neb. App. 588In re I nterest of Ezra C., a child
under 18 years of age.
State of Nebraska, appellee, v. Stephanie K. and
K enneth K., appellees, and Nebraska Department
of H ealth and Human Services, appellant.
___ N.W.2d ___
Filed March 6, 2018. No. A-17-699.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. 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.
3. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902(Reissue 2016), there are three types of final orders which may be
reviewed on appeal: (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. Juvenile Courts: Appeal and Error. A proceeding before a juvenile
court is a special proceeding for appellate purposes.
5. Final Orders: Appeal and Error. Numerous factors determine when an
order affects a substantial right for purposes of appeal. Broadly, these
factors relate to the importance of the right and the importance of the
effect on the right by the order at issue.
6. Final Orders. Whether the effect of an order is substantial depends on
whether it affects with finality the rights of the parties in the subject
matter.
7. Juvenile Courts: Minors. The State’s right in juvenile proceedings is
derived from its parens patriae interest, and it is pursuant to that interest
that the State has enacted the Nebraska Juvenile Code.
- 589 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF EZRA C.
Cite as 25 Neb. App. 5888. ____: ____. The State’s right is especially prominent in juvenile adju-
dications, because the purpose of the adjudication phase of a juvenile
proceeding is to protect the interests of the child.
9. ____: ____. Once a child is adjudicated, the State’s interest in protecting
the child becomes greater and more necessary.
10. Juvenile Courts: Jurisdiction: Appeal and Error. An appellate court
is without jurisdiction on appeal when a juvenile court’s order does not
constitute an adjudicative or dispositive action in the proceedings as no
substantial right has been affected.
11. Juvenile Courts: Judgments: Appeal and Error. An order in juvenile
proceedings denying a motion for a psychosexual evaluation is not a
final, appealable order, because it does not involve a substantial right of
the State.
12. Juvenile Courts: Child Custody: Appeal and Error. Allowing an
interlocutory appeal promotes significant delay in the juvenile proceed-
ings and the ultimate resolution of custody.
13. Juvenile Courts: Appeal and Error. Generally, delaying juvenile pro-
ceedings to grant interlocutory appeals is antagonistic to the child’s
best interests.
Appeal from the County Court for Cheyenne County: Paul
G. Wess, Judge. Appeal dismissed.
Neleigh N. Boyer, Special Assistant Attorney General, of
Nebraska Department of Health and Human Services, for
appellant.
No appearance for appellees.
Pirtle, Bishop, and A rterburn, Judges.
A rterburn, Judge.
INTRODUCTION
The Nebraska Department of Health and Human Services
(DHHS) appeals an order of the county court for Cheyenne
County, sitting as a juvenile court, overruling DHHS’ motion to
require Kenneth K., the child’s stepfather, to undergo a psycho-
sexual evaluation. For the reasons set forth below, we dismiss
this appeal due to a lack of jurisdiction.
- 590 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF EZRA C.
Cite as 25 Neb. App. 588BACKGROUND
On April 22, 2016, a juvenile petition and supporting affi-
davit were filed with the county court for Cheyenne County
alleging that Ezra C., born in 2014, was a child within the
meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) and
also filed was a “Motion for Ex Parte Order of Temporary
Custody.” That same day, the county court entered a tempo-
rary order placing Ezra in the custody of DHHS for out-of-
home placement.
On May 25, 2016, an amended petition was filed alleging
that Ezra was a child within the meaning of § 43-247(3)(a)
for the reason that he is in a situation injurious to his health
or morals. Stephanie K., who is Ezra’s mother, and Kenneth
each entered no contest pleas to the amended petition on May
25. The county court found Ezra to be adjudicated within the
meaning of § 43-247(3)(a) that same day.
On July 21, 2016, the guardian ad litem filed a motion for
a sex offender risk assessment, requesting that the court order
both Stephanie and Kenneth to participate in a sex offender
risk assessment. The county court held a dispositional hear-
ing, as well as a hearing on the motion for a sex offender
risk assessment, on July 27. During the dispositional phase
of the hearing, the court ordered that custody of Ezra was to
continue with DHHS with physical placement in his foster
home. The county court ordered that Kenneth complete a sex
offender risk assessment. A review hearing was scheduled on
September 14, but was continued because the sex offender
risk assessment was not completed by Kenneth. The county
court held a review hearing on September 22. The court
entered an order after the review hearing which rescinded its
previous order requiring Kenneth to complete a sex offender
risk assessment.
It is apparent from the totality of the record, though we do
not have the specific orders before us, that Ezra was reunified
with Stephanie and Kenneth sometime between December 14,
2016, and January 19, 2017. There is no record of DHHS’
- 591 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF EZRA C.
Cite as 25 Neb. App. 588appealing the order of reunification. The record demonstrates
that the State, through the deputy county attorney, filed on
March 30 a motion to schedule a hearing to terminate the
juvenile court’s jurisdiction. That hearing was held on April 6.
The county court denied the motion on the date of the hear-
ing. DHHS filed a motion on April 17 requesting that Kenneth
be required to complete a sex offender risk assessment. The
county court denied the motion on April 26. An amended
motion for an evaluation was filed by DHHS on May 16,
requesting the county court to order Kenneth to participate in a
psychosexual evaluation.
The county court held a hearing on the motion on May 24,
2017. Testimony from two psychologists, as well as a letter
from a third, was received by the county court. Additionally,
caseworkers from DHHS testified during the hearing.
Generally, the testimony centered on past allegations regard-
ing sexual misconduct by Kenneth. The testimony established
that a safety plan was in place at the home. After argument, the
county court iterated that even if the psychosexual evaluation
were performed, the proceedings would be in a substantially
similar circumstance as if the psychosexual evaluation had
not been performed. The county court took the matter under
advisement and entered a written order on June 5 denying
DHHS’ amended motion for an evaluation. DHHS appeals that
order here.
ASSIGNMENT OF ERROR
DHHS argues the county court erred in denying its motion
for a psychosexual evaluation.
STANDARD OF REVIEW
[1,2] A jurisdictional issue that does not involve a factual
dispute presents a question of law. In re Interest of LeVanta
S., 295 Neb. 151, 887 N.W.2d 502 (2016). An appellate court
reviews juvenile cases de novo on the record and reaches its
conclusions independently of the juvenile court’s findings. Id.When the evidence is in conflict, however, an appellate court
- 592 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF EZRA C.
Cite as 25 Neb. App. 588may give weight to the fact that the lower court observed
the witnesses and accepted one version of the facts over the
other. Id.ANALYSIS
DHHS argues that the county court erred in denying its
motion for a psychosexual evaluation of Ezra’s stepfather,
Kenneth. DHHS argues that this order is a final, appealable
order as it substantially affects their ability to litigate the case
as guardian of the child. It asserts that based on the Nebraska
Juvenile Code and the State’s parens patriae interest in the
proceedings, the county court abused its discretion in denying
the motion.
The jurisprudence regarding this area of the law is not well-
developed. However, based on the established case law, we are
able to determine that the order denying a motion for a psy-
chosexual evaluation is not a final, appealable order. The order
does not involve a substantial right of the State. The order does
not involve a dispositional issue in the proceedings. Finally, the
order does not involve placement, permanent or otherwise, of
the juvenile. Therefore, we determine that the appeal must be
dismissed for a lack of jurisdiction.
[3,4] Our jurisdiction to review the county court’s June 5,
2017, order denying the motion for psychosexual evaluation
depends on whether it is a final order. Under Neb. Rev. Stat.
§ 25-1902 (Reissue 2016), there are three types of final orders
which may be reviewed on appeal: (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 sub-
stantial right made on summary application in an action after
judgment is rendered. In re Interest of Noah B. et al., 295 Neb.
764, 891 N.W.2d 109 (2017). The first and third categories of
final orders are not implicated here. But a proceeding before a
juvenile court is a special proceeding for appellate purposes,
so we must determine whether the order dismissing the State’s
supplemental petition affected a substantial right. See id.- 593 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF EZRA C.
Cite as 25 Neb. App. 588[5,6] Numerous factors determine when an order affects a
substantial right for purposes of appeal. Broadly, these factors
relate to the importance of the right and the importance of the
effect on the right by the order at issue. Id. It is not enough
that the right itself be substantial; the effect of the order on
that right must also be substantial. Id. 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. See Deines v.
Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016).
The term “substantial right” has been defined in various
ways. For example, the Nebraska Supreme Court has stated
that a substantial right is an essential legal right, not a mere
technical right. In re Interest of Karlie D., 283 Neb. 581, 811
N.W.2d 214 (2012). A substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to the appellant prior to
the order from which the appeal is taken. Id. But the applica-
tion of these definitions in juvenile cases, where the best inter-
ests of the child are the primary concern, has not always been
clear. Most of the cases dealing with the finality of juvenile
court orders involve the substantial right of a parent. See, e.g.,
In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d
672 (2003); In re Guardianship of Rebecca B. et al., 260 Neb.
922, 621 N.W.2d 289 (2000). Here, it is the substantial right of
the State, if any, which is at issue. For purposes of this analy-
sis, DHHS and the State are one and the same because DHHS
is a state agency.
[7,8] The substantial right of a parent in juvenile proceed-
ings is a parent’s fundamental, constitutional right to raise
his or her child. In re Interest of Karlie D., supra. See In re
Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998).
The State’s right in juvenile proceedings is derived from its
parens patriae interest, and it is pursuant to that interest that the
State has enacted the Nebraska Juvenile Code. In re Interest
of Noah B. et al., supra. See In re Interest of R.G., 238 Neb.
405, 470 N.W.2d 780 (1991), disapproved on other grounds,
- 594 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF EZRA C.
Cite as 25 Neb. App. 588O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998).
This right is especially prominent in juvenile adjudications,
because the purpose of the adjudication phase of a juvenile
proceeding is to protect the interests of the child. In re Interest
of Noah B. et al., supra.
[9] In In re Interest of Karlie D., supra, the Supreme Court
observed that the purpose of the adjudication phase of a juve-
nile proceeding is to protect the interests of the child. This
same purpose forms the foundation for the State’s parens
patriae interest; thus, once the child is adjudicated, the State’s
interest in protecting the child becomes greater and more nec-
essary. The court held that once a juvenile has been adjudi-
cated under § 43-247(3), and the court has granted DHHS, and
thus the State, custody of the child, the State has the right to
recommend where the child should live. See In re Interest of
Karlie D., supra. The child in In re Interest of Karlie D. had
been adjudicated and placed in DHHS’ custody. The order at
issue denied DHHS’ recommended placement and ended the
dispositional phase of the proceeding. The court concluded
that the order permanently moving the child to live with her
grandmother affected an existing right of the State and was
appealable. See id. See, also, In re Interest of Joseph S., 21
Neb. App. 706, 842 N.W.2d 209 (2014) (finding appeal by
State of order denying petition to terminate parental rights was
final, appealable order), reversed on other grounds 288 Neb.
463, 849 N.W.2d 468 (2014); In re Interest of Tanisha P. et
al., 9 Neb. App. 344, 611 N.W.2d 418 (2000) (finding dispo-
sitional order changing child’s placement was final order for
purposes of appeal).
[10] In In re Interest of Jassenia H., 291 Neb. 107, 864
N.W.2d 242 (2015), the Supreme Court found that a juvenile
court’s order determining that the federal and state Indian
Child Welfare Acts were applicable to the juvenile proceed-
ings was not a final, appealable order. In In re Interest of
Jassenia H., the guardian ad litem, on behalf of the juvenile,
filed the appeal of the order claiming that this finding affected
- 595 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
IN RE INTEREST OF EZRA C.
Cite as 25 Neb. App. 588a substantial right of the child. However, the Supreme Court
found that the juvenile court’s finding did not constitute an
adjudicative or dispositive action in the proceedings. Id. As a
result, the court determined that it was without jurisdiction on
appeal as no substantial right had been affected. Id.Here, Ezra had been adjudicated before the motion for a
psychosexual evaluation. Therefore, Ezra was under DHHS’
custody at the time of the order. However, Ezra had been
reunified with Stephanie and Kenneth at least 5 months prior
to DHHS’ motion. DHHS did not appeal the placement order.
DHHS drafted a safety plan, which was in place at the time
of its motion. The fact that the county court denied its motion
does not preclude DHHS from filing a similar motion in the
future, especially if new evidence arises.
[11-13] Based on the precedent available to us, we find that
an order in juvenile proceedings denying a motion for psycho-
sexual evaluation is not a final, appealable order, because it
does not involve a substantial right of the State. The outcome
of the motion was not adjudicative or dispositional. The motion
does not involve placement of the child. It is more akin to the
procedural motions that the Supreme Court has determined
were not final orders. It is also worth noting that allowing an
interlocutory appeal promotes significant delay in the juve-
nile proceedings and the ultimate resolution of custody. In
re Interest of Marcella B. & Juan S., 18 Neb. App. 153, 775
N.W.2d 470 (2009). Generally, delaying juvenile proceedings
to grant interlocutory appeals is antagonistic to the child’s best
interests. Id. Therefore, we find that we lack jurisdiction and
must dismiss the appeal before us.
CONCLUSION
We find that the county court’s order denying DHHS’ motion
for psychosexual evaluation was not a final order and must dis-
miss the appeal due to a lack of jurisdiction.
A ppeal dismissed.