In re Interest of Darrion T.

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF DARRION T.
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 DARRION T., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
PATRICK T., APPELLANT, AND JORDAN B., APPELLEE.
Filed January 24, 2017. No. A-16-400.
Appeal from the County Court for Buffalo County: JOHN P. RADEMACHER, Judge.
Affirmed in part, and in part reversed and remanded with directions.
Brandon J. Dugan for appellant.
Mandi J. Amy, Deputy Buffalo County Attorney, for appellee State of Nebraska.
D. Brandon Brinegar for appellee Jordan B.
Tana M. Fye, guardian ad litem.
MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
MOORE, Chief Judge.
INTRODUCTION
Patrick T. appeals from an order of the county court of Buffalo County, sitting as the
juvenile court, overruling his objection to the visitation schedule. Upon our de novo review,
because we find that the juvenile court erred in effectively delegating the frequency of visitation
to Darrion’s therapist, we reverse this portion of the order and remand the cause with directions
for the court to specify visitation. Finding Patrick’s remaining argument to be without merit, we
affirm in all other respects.
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BACKGROUND
Patrick is the biological father of Darrion, who was age 4 at the time this case began. On
February 24, 2015, the State filed a petition alleging Darrion to be within the meaning of Neb.
Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014) for the reason that “[o]n or about February 22,
2015, (Darrion) was observed with bruising due to inappropriate or excessive discipline by his
mother’s live-in boyfriend, placing (Darrion) at risk for harm.” On the same day of this petition,
the State filed a motion for temporary custody. An ex parte order was entered on this day
continuing temporary custody and placement of Darrion with the Nebraska Department of Health
and Human Services.
At the time the petition was filed, the biological mother was the custodial parent, with
Patrick receiving supervised visitation one day per month pursuant to a prior district court order.
This arrangement had existed since approximately March or April, 2013. Darrion’s paternal
grandmother supervised visitation.
On March 4, 2015, a placement hearing was held, at which time both Patrick and the
mother denied the allegations in the petition. The court held that it would be contrary to
Darrion’s welfare to return home, and continued temporary custody with the Department.
On April 20, 2015, an adjudication hearing was held, wherein the mother withdrew her
previous denial and entered an admission. Patrick did not enter a further plea, apparently because
the petition contained no allegations against him. The court adjudicated Darrion as a juvenile
within the meaning of Neb. Rev. Stat. § 43-247(3)(a) and placed him in the custody of the
Department. The Department was ordered to prepare a case plan and court report.
The Department initially placed Darrion in the custody of the paternal grandmother in
North Platte, Nebraska. Approximately 6 weeks later, placement was transferred to the maternal
grandmother, who resided closer to Kearney. This was done because the mother lived in
Kearney, the move eased travel concerns, and the permanency goal throughout the case was
reunification. This arrangement continued until around January 8, 2016, following the maternal
grandmother giving notice that she would no longer act as placement. The Department then
placed Darrion with an agency-based foster family in Hazard, Nebraska, which is close to
Kearney.
Following the filing of this appeal, Darrion has been returned to his mother, and both
parties acknowledge the issue of placement is moot. Therefore, the issue of placement will not be
addressed further in this opinion.
On January 11, 2016, a review hearing was held at which time the court adopted the
Department’s case plan. Patrick objected to the visitation portion of this plan and expressed a
desire to have weekly visitation with Darrion. A hearing was scheduled to address this objection.
On February 19, 2016, a hearing was held to address Patrick’s objection to visitation
under the case plan. Patrick called Annie Royle, a child and family services specialist with the
Department, to testify. Royle served as the case manager since the present matter began. Royle
testified that the Department opposed increased visitation for Patrick due to the recommendation
from Darrion’s therapist that therapeutic visits would need to occur before an increase in
visitation “due to Darrion’s response to his father, even in conversation.” Specifically, the
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therapist reported that Darrion’s relationship with Patrick causes him stress, and Darrion
disclosed fear of Patrick. Patrick denied that Darrion expresses fear during visitation. Rather,
Patrick indicated that Darrion is happy, excited, and says he loves and misses Patrick during
visits. Patrick stated that “there hasn’t been one time he’s shown fear, or anything like that,
towards me.”
Royle also testified about Patrick’s criminal history since the case was opened. She noted
that Patrick was charged with arson and terroristic threats, and pursuant to a plea, Patrick was
convicted on the terroristic threats charge, a felony. Patrick also was convicted for two protection
order violations. Patrick was incarcerated on two separate occasions since the opening of the
case, initially for the arson and terroristic threats charges, and later for the protection order
violations. Patrick admitted that his criminal record over the past three years included
convictions for terroristic threats and two protection order violations, along with theft by
unlawful taking.
During cross-examination of Royle, the guardian ad litem offered into evidence two
letters from Darrion’s therapist. Patrick objected, claiming that “when notice of this objection
hearing was made, the Court ordered that all evidence be done through affidavits.” Patrick also
objected on the basis that he had not received a copy of the letters, and therefore lacked an
opportunity to review them and plan a response. The court overruled the objection and received
these letters into evidence.
These letters set forth the therapist’s concerns regarding visitation. The therapist
described Darrion as a child with “significant dissociative behaviors” based upon “early stress
and likely neglect issues.” Darrion was observed to become dissociative when discussing
interactions with Patrick. Darrion expressed fear of living with the paternal grandmother based
on concern that Patrick will visit, whom he considers to be “scary.” The therapist noted that
Darrion previously witnessed domestic violence between his parents, and verbalizes fear of
Patrick.
The hearing concluded with the court continuing the matter to allow Patrick an
opportunity to prepare and offer rebuttal evidence to the therapist’s letters. The court specified
that the continuation hearing would be “limited to anything that’s responsive rebuttal to (the
letters).”
On March 3, 2016, the matter came before the court for further consideration of Patrick’s
objection to visitation. Patrick’s affidavit in support of the objection was received into evidence.
Patrick claimed to be unaware of the concerns expressed by the therapist until the prior hearing.
He stated that Darrion is always happy to see him during visits. Patrick expressed willingness to
participate in “some therapeutic visits with Darrion if the Court feels that it is best for him,”
simply wanting to see his son more often.
Patrick argued for an increase in visitation, including therapeutic visits. The State,
guardian ad litem, and mother all requested that Patrick’s request for increased visitation be
denied.
At the conclusion of the hearing, the court overruled Patrick’s objection. The court
expressed concern regarding Patrick’s behavior over the past year, specifically his felony
conviction and violation of protection orders. The court also noted that Patrick’s current
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visitation was based upon a district court order that was entered some time ago without any
consideration of the current circumstances, including Patrick’s criminal conduct in the past year.
Based on the therapist’s recommendations, the court ordered that Patrick shall be limited in his
visitation rights to therapeutic visits until the therapist recommends that he can have visits
outside of therapy. The court ordered that visits supervised by the paternal grandmother are be
terminated at this time until further order of the court, finding that such visits are against
Darrion’s best interests based upon Darrion’s “perceptions and his fears.”
Patrick’s attorney responded by requesting that the court specify the required number of
therapeutic visits, but the court declined to set a specific number. The court stated that
therapeutic visits would continue “[a]s long as the therapist recommends that they continue. I
don’t know if that’s one. I don’t know if that’s two. I don’t know if that’s 10. And if, after a
number of them occur . . . and you don’t believe that they’re necessary any longer, then you can
address that with the Court.” The court set a review hearing for April 13, 2016, approximately
one month later.
On March 10, 2016, the court entered its written order. The court reiterated that
“(Patrick’s) visits with (Darrion) are limited to therapeutic visits . . . until (the therapist)
recommends that visits should occur otherwise.” Further, the court ordered “that (Patrick’s)
weekend visits in North Platte, Nebraska, supervised by the paternal grandmother are to cease
immediately.”
Patrick subsequently perfected this appeal.
ASSIGNMENTS OF ERROR
Patrick argues, restated, that the district court erred in (1) leaving the amount, time, and
manner of visitation within the discretion of Darrion’s therapist, (2) restricting his rebuttal
evidence to the form of affidavits at the March 3, 2016 hearing, and (3) denying his motion for a
change in placement to the paternal grandmother. Patrick concedes in his brief that the issue of
placement became moot following the placement of Darrion with the biological mother.
Therefore, this court will not address the third argument further.
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 Cassandra B. &
Moira B., 290 Neb. 619, 861 N.W.2d 398 (2015). When the evidence is in conflict, however, an
appellate court may give weight to the fact that the lower court observed the witnesses and
accepted one version of the facts over the other. Id.
ANALYSIS
JURISDICTION
We first address the State’s contention that this court lacks jurisdiction to consider this
appeal. The State argues that the court’s March 10 order was not a final, appealable order on the
basis that no substantial legal right of Patrick’s was affected. The State asserts that no substantial
right was affected for the following reasons: (1) the order was simply an extension of prior
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orders, which were not appealed; (2) the order did not substantially decrease visitation time,
which had been supervised throughout the case; (3) the therapeutic visitation directive of the
order was not permanent in nature; and (4) there existed means by which Patrick could increase
visitation with Darrion, such as participation in prescribed services. The State also asserts that
Patrick’s relationship with Darrion was only briefly interrupted by the order, citing a review
hearing that had been scheduled for April 13. Upon our review, we find that the court’s March
10 order affected a substantial right belonging to Patrick, and therefore was appealable.
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. In re Octavio B., 290 Neb. 589, 861 N.W.2d 415 (2015). For an appellate court to
acquire jurisdiction of an appeal, there must be a final order entered by the court from which the
appeal is taken. Id. Among the three types of final orders which may be reviewed on appeal is an
order that affects a substantial right made during a special proceeding. Danaisha W. v. Dennisca
W., 287 Neb. 27, 840 N.W.2d 533 (2013).
Juvenile court proceedings are special proceedings under Neb. Rev. Stat. § 25-1902
(Reissue 2008), and an order in a juvenile special proceeding is final and appealable if it affects a
parent’s substantial right to raise his or her child. Octavio B., supra. A substantial right is an
essential legal right, not a mere technical right. Octavio B., supra. The substantial right of a
parent in juvenile proceedings is a parent’s fundamental, constitutional right to raise his or her
child. Cassandra B., supra.
Whether a substantial right of a parent has been affected by an order in juvenile court
litigation is dependent upon both the object of the order and the length of time over which the
parent’s relationship with the juvenile may reasonably be expected to be disturbed. Octavio B.,
supra.
Where an order from a juvenile court is already in place and a subsequent order merely
extends the time for which the previous order is applicable, the subsequent order by itself does
not affect a substantial right and does not extend the time in which the original order may be
appealed. Rebecca B. v. Sandra B. (In re Rebecca B.), 260 Neb. 922, 621 N.W.2d 289 (2000).
See, also, People v. Nyamal M. (In re Mya C.), 286 Neb. 1008, 840 N.W.2d 493 (2013).
Orders which temporarily suspend a parent’s custody and visitation rights for a brief
period of time do not affect a substantial right and are therefore not appealable. Danaisha W.,
supra. See, also, Cassandra B., supra.
We first determine that the March 10 order was not merely a continuation of previous
orders. It contained a significant modification to prior visitation orders. The prior visitation
arrangement that existed throughout the case was terminated and replaced exclusively with
supervised therapeutic visits to continue until the therapist recommended otherwise. Further, the
prior visitation arrangement provided for monthly visits, while the new format does not establish
the frequency of visitation. Clearly the object of this order was to restrict the nature of visitation
through the addition of a therapeutic element based on the circumstances of this case.
Second, we determine that the order was not a temporary order, but rather, was one which
affected Patrick’s substantial right to visit his child. The order gave no clear indication that
therapeutic visitation was intended to be temporary or that the court would revisit this issue at
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any specific time. We recognize that there was a review hearing scheduled the following month,
however, there was no indication in the March 10 order that the therapeutic visitation would be
reconsidered at that time. Rather, the only timetable provided in the March 10 order was that
therapeutic visitation would continue until the therapist recommended otherwise. The
indeterminate nature of this order could potentially result in more than a brief interruption in
Patrick’s relationship with Darrion.
Finally, the order at issue does not provide a specific means by which Patrick can
increase his visitation with Darrion; rather, the order leaves the entire matter of visitation to the
discretion of the therapist. The general availability of services for Patrick does not alter the
indeterminate nature of this order. As such, it is a final order, which we have jurisdiction to
review.
The State’s argument is without merit.
DELEGATION OF AUTHORITY TO THIRD PARTY
Patrick argues on appeal that the court improperly delegated authority over visitation to
Darrion’s therapist. Patrick argues that the court erred by assigning the determination of amount,
time, and manner of visitation to Darrion’s therapist. Further, Patrick claims the court erred by
refusing to set a schedule for visitation.
It is the responsibility of the trial court to determine questions of custody and visitation of
minor children according to their best interests, which is an independent responsibility and
cannot be controlled by the agreement or stipulation of the parties or by third parties. Mark J. v.
Darla B., 21 Neb. Ct. App. 770, 842 N.W.2d 832 (2014). See, also, Zahl v. Zahl, 273 Neb. 1043,
736 N.W.2d 365 (2007). It is an abuse of discretion for a trial court to delegate to a psychologist
or third party the authority to determine when and if visitation can be had by the noncustodial
parent. Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980), disapproved on other
grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002). See, also, In re Teela H., 3
Neb. Ct. App. 604, 611, 529 N.W.2d 134, 139 (1995); In Interest of D.M.B., 240 Neb. 349, 362-363,
481 N.W.2d 905, 914-915 (1992).
Based on the court’s comments at the hearing and the language of the March 10, 2016
order, it is clear that Patrick’s visitation with Darrion is now to be determined by the therapist,
including decisions concerning the amount and timing of visitation, and the length of time that
therapeutic visitation is to occur. While we find no abuse of discretion in the court’s
determination that therapeutic visitation was proper at this time, the court’s refusal to set the
amount of visitation and leave the extent and time of visitation up to the therapist was improper.
The court’s decision to not specify the frequency of visitation effectively delegated such
authority to Darrion’s therapist. As was the case in Deacon, D.M.B., and Teela H., this
delegation of authority to determine when and if visitation can be had by Patrick amounted to an
abuse of discretion. See, Deacon, 207 Neb. at 194-195, 200 (order denying mother’s request for
specific visitation and requiring mother to attend psychological counseling with children found
to effectively allow psychologist to determine extent and time of visitation, and could lead to a
denial of mother’s proper visitation); D.M.B., 240 Neb. at 362-363 (plain error for a juvenile
court to require that a parent participate in a support group on a regular basis and follow all
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directions of the counselor); Teela H., 3 Neb. Ct. App. at 609-611 (order directing that mother’s
visitation shall be supervised by the Department as recommended by the child’s psychiatrist was
an improper delegation of judicial authority).
Accordingly, we reverse the district court’s order and remand with directions to
specifically determine Patrick’s visitation with Darrion, by issuing a schedule designating the
frequency of therapeutic visitation.
RESTRICTION OF REBUTTAL EVIDENCE
Patrick argues that the court restricted rebuttal evidence at the continuation hearing to
include only affidavits. As a result, Patrick claims the court denied him due process by removing
the opportunity to call or cross-examine Darrion’s therapist. We disagree.
First, we note that contrary to Patrick’s assertion, the evidence at the first hearing on
Patrick’s objection to the case plan was not limited to affidavits. In fact, Patrick testified at this
hearing.
Second, at the conclusion of the first hearing, the court indicated that the matter was
continued to allow Patrick to offer responsive rebuttal evidence. The only limitation placed on
the rebuttal evidence by the court was that it be responsive to the contents of the letters and
“potentially the counselor.” The corresponding order issued after the hearing indicated that
Patrick would have the opportunity to offer additional evidence as to the letters only. No
limitation was placed on Patrick’s ability to call the therapist to testify.
Patrick’s second argument is without merit.
CONCLUSION
Upon our de novo review, we find that the juvenile court erred in improperly delegating
the frequency of visitation to Darrion’s therapist. We reverse this portion of the order and
remand the cause with directions consistent with this opinion. All other provisions in the order
are affirmed. Additionally, the court did not violate Patrick’s due process rights through limiting
rebuttal evidence to affidavits at the continuation hearing.
AFFIRMED IN PART, AND IN PART REVERSED
AND REMANDED WITH DIRECTIONS.
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