In re Interest of Brianna B.

Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF BRIANNA B. 657
Cite as 21 Neb. App. 657In re I nterest of
Brianna B., a child
18 years of age.
under
State of Nebraska, appellee, v.
May Lynn L., appellant.
In re Interest of Mariella B., a child
under 18 years of age.
State of Nebraska, appellee, v.
May Lynn L., appellant.
___ N.W.2d ___
Filed January 14, 2014. Nos. A-13-054, A-13-055.
1. Juvenile Courts: Jurisdiction: Minors. Under the juvenile code, once a minor
is adjudged to be within the definition of Neb. Rev. Stat. § 43-247(3) (Reissue
2008), the juvenile court acquires exclusive jurisdiction over the juvenile and the
parent who has custody of the juvenile.
2. ____: ____: ____. Neb. Rev. Stat. § 43-285(3) (Supp. 2011) authorizes a juvenile
court to establish guardianships for juveniles in the custody of the Nebraska
Department of Health and Human Services without resorting to a proceeding
under the probate code.
3. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created tribunal, a juve-
nile court has only such authority as has been conferred on it by statute.
4. Juvenile Courts: Minors. The foremost purpose and objective of the Nebraska
Juvenile Code is to promote and protect the juvenile’s best interests.
5. ____: ____. The juvenile code must be construed to ensure the rights of all juve-
niles to care and protection.
6. Juvenile Courts: Child Custody. Juvenile courts are accorded broad discre-
tion in their determination of the placement of children adjudicated abused or
neglected and to serve the best interests of the children involved.
7. Juvenile Courts: Jurisdiction: Parental Rights: Visitation. The continuing
jurisdiction of the juvenile court allows the court to order supervised visitation
after terminating a mother’s parental rights when the order is in the best interests
of the children.
8. Juvenile Courts: Child Custody: Jurisdiction. The juvenile court has the
authority to devise unique foster care situations not set out in the checklist of
statutory options when a unique arrangement will be in the best interests of
the child.
9. Juvenile Courts: Jurisdiction: Guardians and Conservators. The juvenile
court retains jurisdiction over a juvenile in a guardianship.
10. Guardians and Conservators: Parent and Child: Adoption. A guardianship
does not achieve the same degree of permanency as parenthood or adoption.
11. Juvenile Courts: Guardians and Conservators: Parental Rights. When a
guardianship is established, a parent retains the right to petition the court for
restoration of custody and full parental rights in the event of a change in the
Decisions of the Nebraska Court of Appeals
658 21 NEBRASKA APPELLATE REPORTS
circumstances which justified the guardianship and supported the finding of the
parent’s unfitness.
12. Juvenile Courts: Jurisdiction: Guardians and Conservators: Visitation. The
juvenile court maintains the authority to create visitation arrangements within the
context of a guardianship, so long as those arrangements are in the best interests
of the juvenile.
Appeals from the County Court for Lincoln County: Michael
E. Piccolo, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Felicia K. Fair, of Fair Law Office, P.C., L.L.O., for
appellant.
Eric M. Stott, Special Assistant Attorney General, Tanya
Roberts-Connick, Chief Deputy Lincoln County Attorney, and
Jay B. Judds, of Nebraska Department of Health and Human
Services, for appellee.
Amanda M. Speichert, Lincoln County Public Defender,
guardian ad litem.
Inbody, Chief Judge, and Riedmann, Judge.
Riedmann, Judge.
I. INTRODUCTION
These cases involve the establishment of guardianships for
Mariella B. and Brianna B., two juveniles who were placed in
the custody of the Nebraska Department of Health and Human
Services (DHHS) after coming within the meaning of Neb.
Rev. Stat. § 43-247(3)(a) (Reissue 2008). On appeal, their bio-
logical mother, May Lynn L., argues that the letters of guard-
ianship were issued improperly and that the trial court erred in
determining it lacked authority to award her visitation rights.
We determine that the letters of guardianship were issued
properly, but that the trial court erred in determining it did not
have authority to award visitation. Accordingly, we affirm the
establishment of the guardianships, but reverse in part, and
remand to the juvenile court for a determination of May Lynn’s
visitation rights.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF BRIANNA B. 659
Cite as 21 Neb. App. 657II. BACKGROUND
Mariella and Brianna were removed from May Lynn’s care
in February 2008. At the placement hearing in May, the court
appointed a guardian ad litem for May Lynn based upon her
diminished intellectual abilities. In July, May Lynn pled no
contest to the charge that the girls were within the meaning of
§ 43-247(3)(a). Accepting her plea, the court granted custody
of the girls to DHHS and placed them in foster care. Initially,
DHHS sought to reunify May Lynn and the girls. In a May
2009 case plan, DHHS recommended reunification as the pri-
mary plan, concurrent with permanency through an alternative
plan of guardianship. In October 2009, DHHS recommended
changing the goal of the case plan from reunification to guard-
ianship after determining that May Lynn had made no progress
toward reunification. DHHS noted that May Lynn consistently
demonstrated an eagerness and desire to parent her daughters,
but also demonstrated she could not provide for their health
and safety needs. Mariella has Down syndrome, and Brianna
suffers from attention deficit hyperactivity disorder. All parties
agreed that guardianship was a better option than termination
of parental rights.
Because many of the potential guardianship placements
were disrupted, the girls lingered in foster care for several
years while DHHS worked to establish guardianships. During
this time, May Lynn continually objected to the case plans,
asked for increased visitation, and requested physical custody.
In June 2010, DHHS first identified a potential guardian and
asked for the goal of the case plan to be guardianship with that
individual. May Lynn objected, and the matter was set for an
evidentiary hearing. By February 2011, the potential guardian
had become “wishy-washy” due to the girls’ behaviors after
visits with May Lynn. The parties attempted mediation, but the
mediation failed. In May 2011, the potential guardian decided
to move to another state and requested that DHHS remove the
girls from the home.
After an extensive search, DHHS found a second poten-
tial guardian and sought to place the girls with her. In July
2011, the juvenile court heard evidence on DHHS’ motion for
Decisions of the Nebraska Court of Appeals
660 21 NEBRASKA APPELLATE REPORTS
a change of placement. At that hearing, May Lynn opposed
guardianship because she loved her daughters and wanted “to
have say in their life.” At the end of the hearing, the juvenile
court granted DHHS’ motion and also suggested that May
Lynn’s attorney inform her of how visits would work under
a guardianship. Her attorney said he had tried to go over it
with her several times to no avail. By November 2011, DHHS
expressed concern for the girls because the second potential
guardian’s interest had become conditional. The second poten-
tial guardian would consider guardianship only if Brianna’s
behavior improved. Brianna’s therapist opined that Brianna’s
behavior would improve only if her contact with May Lynn
decreased. May Lynn opposed the guardianship again, noting
that she had not been happy with guardianship once she under-
stood its meaning. Visitation with May Lynn continued. The
next month, the second potential guardian requested that the
girls be removed. DHHS moved to place them with the only
potential guardian remaining on its list, and the juvenile court
approved the change.
In March 2012, placement with the third potential guardian
was going well and DHHS moved to appoint the guardian and
have the order completed. DHHS noted that it recommended
May Lynn receive visitation in the event guardianship was
approved. The juvenile court decided to table the motion to
establish guardianship in order to make sure the correct pro-
cedures were being followed. The judge requested that DHHS
file the appropriate paperwork and schedule a hearing on
the motion.
The next week, DHHS filed a motion to establish guardian-
ship through alternative disposition, pursuant to § 43-247(3)(a)
and (10); Neb. Rev. Stat. § 43-284(3) and (5) (Reissue 2008);
and Neb. Rev. Stat. § 43-285(1), (3), and (5) (Supp. 2011).
The juvenile court held a hearing on the motion in July 2012.
May Lynn objected on the ground that the elements set forth
in the probate code needed to be established. The juvenile
court overruled the objection and proceeded. Due to the vol-
ume of testimony and the time constraints, hearing on the
motion occurred on three separate dates in July, September,
and November 2012. At the November hearing, May Lynn
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF BRIANNA B. 661
Cite as 21 Neb. App. 657testified that she loved her daughters and wanted to parent
them. She opposed guardianship. May Lynn also requested
mediation regarding visitation in the event that guardianships
were established.
In December 2012, the juvenile court issued orders approv-
ing guardianships. The court noted its exclusive jurisdiction
over juveniles as described in § 43-247 and the grant of author-
ity over guardianships of individuals within its jurisdiction
as outlined in § 43-247(9). The juvenile court relied on In re
Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d
289 (2000), to determine § 43-285(3) authorized it to award
custody to a family designated by DHHS as suitable guardians
without resort to the probate code.
The juvenile court then found that continuing the girls in
May Lynn’s home was contrary to their best interests, that
reasonable efforts had been made to reunify the girls with May
Lynn, and that due diligence had been used to attempt to locate
and notify the girls’ father. The court then sustained the State’s
motion for guardianship and wrote that DHHS should “com-
mence filing its Petition for the Appointment of a Guardian for
Mariella . . . and Brianna . . . . Following the entry of an Order
approving the Guardianship and the acceptance by the proposed
guardians, [DHHS] and all court-appointed attorneys shall be
dismissed . . . .” The court noted this was a “bitter-sweet reso-
lution to a distressing slice of life’s reality” and informed May
Lynn that she could petition the court for restoration of custody
upon changed circumstances. Finding it was not authorized to
order visitation, the court strongly encouraged May Lynn and
the guardian to negotiate a suitable schedule.
The letters of guardianship were issued in January 2013.
May Lynn timely appealed.
III. ASSIGNMENTS OF ERROR
On appeal, May Lynn argues that the letters of guardianship
were improperly issued and that the trial court erred in failing
to award visitation.
IV. STANDARD OF REVIEW
Juvenile cases are reviewed de novo on the record, and an
appellate court is required to reach a conclusion independent
Decisions of the Nebraska Court of Appeals
662 21 NEBRASKA APPELLATE REPORTS
of the juvenile court’s findings. In re Interest of Karlie D., 283
Neb. 581, 811 N.W.2d 214 (2012). However, when the evi-
dence is in conflict, an appellate court may consider and give
weight to the fact that the trial court observed the witness and
accepted one version of the facts over the other. Id.When a jurisdictional question does not involve a factual
dispute, its determination is a matter of law, which requires
an appellate court to reach a conclusion independent from the
decisions made by the lower courts. In re Interest of Sarah K.,
258 Neb. 52, 601 N.W.2d 780 (1999).
V. ANALYSIS
1. Letters of Guardianship
Were Issued P roperly
May Lynn’s first assignment of error is that the letters of
guardianship were issued contrary to the trial court’s order and
in violation of her constitutional right to procedural due proc­
ess. We disagree.
(a) Juvenile Court Order
In its order approving guardianship in December 2012, the
juvenile court sustained the State’s motion to establish guard-
ianship and then wrote that DHHS should “commence filing
its Petition for the Appointment of a Guardian for Mariella
. . . and Brianna . . . . Following the entry of an Order approv-
ing the Guardianship and the acceptance by the proposed
guardians, [DHHS] and all court-appointed attorneys shall be
d
­ ismissed . . . .”
In January 2013, the letters of guardianship were issued.
Although the juvenile court’s language requiring the State
to file a petition creates confusion, in the context of the rest
of the juvenile court’s order and the proceedings prior to the
order, it is evident that the juvenile court intended its order to
establish guardianship. The juvenile court manifested its intent
by carefully informing the parties on the record that it was
holding a hearing on the State’s motion to establish guardian-
ship, making the requisite findings, sustaining the motion, and
then issuing the letters of guardianship. Given all the steps the
juvenile court took to establish guardianship, its statement that
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF BRIANNA B. 663
Cite as 21 Neb. App. 657the State should file a petition for guardianship is insufficient
to prove the court did not intend to sustain guardianship and
issue the letters.
(b) Probate Code Procedures
May Lynn next argues that the juvenile court erred in issuing
letters of guardianship because it did not follow the appropriate
proceedings for establishing guardianship. Specifically, May
Lynn argues that DHHS was required to follow the procedures
outlined in Neb. Rev. Stat. § 30-2608 (Reissue 2008) in order
to establish guardianship. Section 30-2608 requires a party
seeking to establish guardianship to file a petition in county
court. May Lynn argues that the failure to follow this proce-
dure deprived her of notice. We have previously established,
however, that a juvenile court does not need to resort to the
probate code to establish a guardianship over a minor within
its jurisdiction. Moreover, in this case, the procedures followed
in juvenile court afforded May Lynn sufficient notice of the
guardianship proceedings.
[1,2] Under the juvenile code, once a minor is adjudged to be
within the definition of § 43-247(3), the juvenile court acquires
exclusive jurisdiction over the juvenile and the parent who has
custody of the juvenile. In re Guardianship of Rebecca B. et
al., 260 Neb. 922, 621 N.W.2d 289 (2000). Section 43-247(9)
provides the juvenile court jurisdiction over the guardianship
proceedings of a juvenile described elsewhere within the code.
In In re Guardianship of Rebecca B. et al., supra, the Nebraska
Supreme Court held that § 43-285(3) authorized a juvenile
court to establish guardianships for juveniles in the custody
of DHHS without resorting to a proceeding under the probate
code. In this case, because Mariella and Brianna were both in
the custody of DHHS, the juvenile court had authority to estab-
lish guardianship under the juvenile code.
May Lynn argues that even if the trial court were authorized
to establish guardianship under the juvenile code, she was still
entitled to procedures that afforded her notice of guardian-
ship. The record in this case establishes, however, that May
Lynn had ample notice of the guardianship hearing. DHHS
established guardianship as the permanency goal in the case
Decisions of the Nebraska Court of Appeals
664 21 NEBRASKA APPELLATE REPORTS
plan years before the hearing, that change was approved by
the court, and guardianship was discussed at almost every
status meeting after October 2009. If these discussions did
not provide May Lynn sufficient notice, she was certainly on
notice after DHHS filed a motion to establish guardianship. A
hearing was held on that motion prior to the court’s approving
guardianship. For these reasons, we find May Lynn’s argument
without merit.
2. Failure to Establish Visitation
May Lynn’s second assignment of error is that the trial
court erred in failing to establish a visitation plan for her after
sustaining DHHS’ motion for guardianship. We determine that
the juvenile court erred in finding it lacked authority to order
visitation for May Lynn. Accordingly, we reverse in part, and
remand to the juvenile court for a determination of May Lynn’s
visitation rights.
[3] May Lynn argues that the juvenile court erred in finding
it lacked statutory authority to order visitation and in failing
to order the visitation. DHHS notes that no statute specifically
authorizes a juvenile court to award visitation in an established
guardianship. As a statutorily created tribunal, the juvenile
court has only such authority as has been conferred on it by
statute. In re Interest of Jaden H., 263 Neb. 129, 638 N.W.2d
867 (2002). At the same time, the purpose of the juvenile court
is to protect and promote the welfare of juveniles. The court’s
“powers and duties are described more or less in detail in our
statutes, and because of their humanitarian and beneficient
purpose, they should be liberally construed to the end that their
manifest purpose may be effectuated to the fullest extent com-
patible with their terms.” Stewart v. McCauley, 178 Neb. 412,
418, 133 N.W.2d 921, 925 (1965). Rather than creating a new
court, the juvenile court law “merely gave a court with general
common law and equity jurisdiction new and additional pow-
ers. These powers do not supersede its original jurisdiction but
are supplemental to it.” Id.[4-6] The foremost purpose and objective of the Nebraska
Juvenile Code is to promote and protect the juvenile’s best
interests. In re Interest of Veronica H., 272 Neb. 370, 721
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF BRIANNA B. 665
Cite as 21 Neb. App. 657N.W.2d 651 (2006). Accordingly, the juvenile code must be
construed to ensure the rights of all juveniles to care and pro-
tection. See id. The Nebraska Juvenile Code must be liberally
construed to serve the best interests of juveniles who come
within the provisions of the act. In re Interest of Veronica H.,
supra. As such, juvenile courts are accorded broad discretion
in their determination of the placement of children adjudicated
abused or neglected and to serve the best interests of the chil-
dren involved. Id.
[7,8] Although no statute explicitly authorizes awarding
visitation within the context of a guardianship, we have pre-
viously determined that the continuing jurisdiction of the
juvenile court allowed the court to order supervised visitation
after terminating a mother’s parental rights when the order
was in the best interests of the children. See In re Interest
of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d
594 (2004). We have also found that the juvenile court has
the authority to devise “unique” foster care situations not set
out in the “‘checklist’” of statutory options when a unique
arrangement would be in the best interests of the child. In re
Interest of Holley, 209 Neb. 437, 444, 445, 308 N.W.2d 341,
346 (1981).
[9-11] As was the case in In re Interest of Stacey D. &
Shannon D., supra, the juvenile court retains jurisdiction over
a juvenile in a guardianship. A guardianship does not achieve
the same degree of permanency as parenthood or adoption.
In re Interest of Antonio S. & Priscilla S., 270 Neb. 792, 708
N.W.2d 614 (2005). Legal custody is not parenthood or adop-
tion and the person appointed guardian is subject to removal
at any time. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208,
31 L. Ed. 2d 551 (1972); In re Interest of Amber G. et al., 250
Neb. 973, 554 N.W.2d 142 (1996). When a guardianship is
established, a parent retains the right to petition the court for
restoration of custody and full parental rights in the event of
a change in the circumstances which justified the guardian-
ship and supported the finding of the parent’s unfitness. In re
Interest of Amber G. et al., supra.
[12] Given our holding in In re Interest of Stacey D. &
Shannon D., supra, and the broader purposes of the juvenile
Decisions of the Nebraska Court of Appeals
666 21 NEBRASKA APPELLATE REPORTS
code, we determine that the juvenile court maintains the author-
ity to create visitation arrangements within the context of a
guardianship, so long as those arrangements are in the best
interests of the juvenile. In this case, the juvenile court was
operating under the misconception that it was without author-
ity to order visitation. Because we determine that the juvenile
court does have the authority to order visitation between the
mother and the affected juvenile, we reverse in part, and
remand to the juvenile court for a determination of May Lynn’s
visitation rights.
VI. CONCLUSION
We determine that the juvenile court properly issued the
letters of guardianship, and therefore, we affirm that portion
of the juvenile court’s decision. The juvenile court erred, how-
ever, in determining that it lacked authority to award visitation
rights in a guardianship proceeding. Accordingly, we reverse
in part, and remand to the juvenile court for a determination of
May Lynn’s visitation rights.
Affirmed in part, and in part reversed
and remanded with directions.
Pirtle, Judge, participating on briefs.
In re I nterest of Jayden D. and Dayten J.,
children under 18 years of age.
State of Nebraska, appellee, v.
Yolanda W.,
formerly known as Yolanda O., appellant.
___ N.W.2d ___
Filed January 14, 2014. No. A-13-193.
1. Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial of a trans-
fer to tribal court under the Indian Child Welfare Act is reviewed for an abuse
of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.