In re Interest of Paxton H. , 300 Neb. 446 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/28/2018 08:14 AM CDT
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Nebraska Supreme Court A dvance Sheets
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IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
In re I nterest of Paxton H., a child
under 18 years of age.
Nebraska Department of Health and Human
Services, appellant, v. Patrick H.
and Penny H., appellees.
___ N.W.2d ___
Filed July 6, 2018. No. S-17-1182.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Juvenile Courts: Jurisdiction: Appeal and Error. 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.
3. Juvenile Courts: Costs: Final Orders. An order in a juvenile case
which directs the Department of Health and Human Services to pay for
the costs of treatment is a final order for purposes of Neb. Rev. Stat.
§ 25-1902 (Reissue 2016).
4. Juvenile Courts. Juvenile courts have the authority to assent to and
dissent from decisions of the Department of Health and Human Services
with respect to what care, placement, services, and expenditures are in
the best interests of juveniles under its care and custody.
5. Appeal and Error. Appellate courts will not consider issues on appeal
that were not presented to or passed upon by the trial court.
Appeal from the Separate Juvenile Court of Lancaster
County: Toni G. Thorson, Judge. Affirmed.
Douglas J. Peterson, Attorney General, and C.J. Roberts,
Special Assistant Attorney General, for appellant.
Lisa Gonzalez, of Johnson & Pekny, L.L.C., for appellees.
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IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Johnson, District Judge.
Papik, J.
The separate juvenile court of Lancaster County ordered the
Nebraska Department of Health and Human Services (DHHS)
to arrange and pay for Paxton H., a juvenile in its care and cus-
tody, to receive mental health services at a facility in Kansas.
DHHS challenges that order. While DHHS acknowledges that
Paxton requires certain services, it contends that Paxton can
receive those services in Nebraska and that local services
would better serve his needs. Following our de novo review of
the record, we determine that the juvenile court’s order was in
Paxton’s best interests, and we therefore affirm.
BACKGROUND
In the sections below, we set forth how Paxton came into the
custody of DHHS and the circumstances that led to the order
at issue in this appeal.
Paxton’s Placement in
DHHS Custody.
On December 29, 2014, the State of Nebraska filed a peti-
tion alleging that Paxton, then 11 years old, was without
proper support through no fault of his parents and there-
fore was a child within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Cum. Supp. 2014). Following a hearing, the
juvenile court adjudicated Paxton as a child within the mean-
ing of § 43-247(3)(a).
In its adjudication order, the juvenile court noted Paxton’s
diagnoses of posttraumatic stress disorder, attention deficit
hyperactivity disorder, traumatic brain injury, disruptive mood
dysregulation disorder, and reactive attachment disorder. The
juvenile court found that Paxton had been placed outside the
family home more than once due to assaultive, defiant, and
destructive behaviors that his parents could not control. It
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IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
further found that Paxton had recently returned to the family
home from a residential treatment facility and, upon his return,
resumed his assaultive behavior. The juvenile court determined
that Paxton’s parents could not safely maintain him in their
home or provide the treatment and services he needed. The
juvenile court ordered DHHS to maintain Paxton in its care
and custody, pending placement at a psychiatric residential
treatment facility.
Paxton’s Placements at
KidsTLC in Kansas.
As a result of disruptions at past placements, no residen-
tial treatment facility in Nebraska would accept Paxton, but
KidsTLC, a residential treatment facility in Olathe, Kansas,
would. Paxton was admitted there in January 2015. Although
the record does not disclose Paxton’s discharge date, it appears
that he remained at KidsTLC for about a year.
Just a few months after returning to his parents’ home from
KidsTLC, Paxton was again removed due to aggressive behav-
iors. After placements in multiple foster homes and in respite
care, Paxton was returned to KidsTLC in July 2016.
July 2017 Review Hearing.
In July 2017, the juvenile court conducted a review hearing.
Paxton was still at KidsTLC at this point, but Laura Milburn,
Paxton’s DHHS caseworker, testified at the hearing that he was
having home visits with his parents almost every other week
and that these visits were going well. She stated that KidsTLC
recommended that Paxton transition to his parents’ home in
August 2017.
Milburn acknowledged that DHHS accepted the recom­
mendations of a recent psychological evaluation of Paxton.
This evaluation recommended that Paxton receive various
serv­ices and treatment including regular meetings with a
physician and psychiatrist to manage his psychotropic medi-
cations as well as individual psychotherapy. Milburn also
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IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
acknowledged that, if Paxton were discharged to his parents’
home, he would need services at school, individual therapy,
and weekly bloodwork to monitor his medications, as well as
other services. While Milburn had initiated the processes to
obtain some of these services, none of them were in place for
Paxton at the time of the July 2017 hearing.
In its order following the July 2017 hearing, the juvenile
court approved DHHS’ case plan, as modified. In particular,
the juvenile court ordered Paxton’s transition home upon
discharge from KidsTLC. The juvenile court ordered DHHS
“to ensure that necessary services are available to Paxton
. . . immediately upon his discharge to the family home.”
The juvenile court went on to provide a nonexclusive list of
necessary services consistent with the recent psychological
evaluation.
Dispute Regarding
Paxton’s Care.
Paxton was discharged from KidsTLC to his parents’ home
on September 30, 2017. Shortly thereafter, a dispute arose
between Paxton’s parents and DHHS regarding his care.
Paxton’s parents asked DHHS to arrange for Paxton to peri-
odically travel to and participate in a transition program at
KidsTLC. Paxton’s therapist during his time at KidsTLC
believed that Paxton’s participation would smooth his transi-
tion home and assist him in remaining there. DHHS refused to
arrange for participation in the KidsTLC transition program.
DHHS personnel concluded that Paxton and his family should
utilize services in Nebraska, rather than services multiple hours
away in Kansas.
Paxton’s parents then filed a motion for an order direct-
ing DHHS to arrange and pay for him to participate in
the KidsTLC transition program. The juvenile court held a
hearing on that motion on October 10, 2017. At the hear-
ing, Milburn acknowledged that DHHS had declined to pro-
vide the KidsTLC services requested by Paxton’s parents
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IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
and recommended by his therapist. She testified that DHHS
regarded respite providers in Nebraska to be more suitable for
Paxton’s transition. Milburn conceded, however, that DHHS
had not provided services immediately upon Paxton’s dis-
charge, as ordered by the juvenile court. She also admitted
that Paxton’s Medicaid had not yet been activated and that
as a result, Paxton could not see the therapist his parents had
identified to work with him, obtain a refill of his medica-
tion, or see a psychiatrist concerning his medication. Milburn
acknowledged that Paxton had not received any type of ther-
apy in the 11 days since his discharge from KidsTLC.
At the close of the hearing, the juvenile court observed
that DHHS had not presented any viable alternative to the
KidsTLC transition program. The juvenile court noted that it
did not have information as to how long Paxton would need
services at KidsTLC, but that it was “in everyone’s best inter-
est” that Paxton eventually receive services in Nebraska.
In an order entered on October 11, 2017, the juvenile court
found that it was in Paxton’s best interests to participate in the
KidsTLC transition program and ordered that DHHS immedi-
ately arrange and pay for him to do so. It observed that DHHS
had not provided an alternative plan and that such a plan was
“critical” given previous failed transitions home as a result
of a gap in services. While directing Paxton’s participation in
the KidsTLC transition program, the juvenile court indicated
that it would continue to monitor services provided to Paxton
and review whether participation in the KidsTLC transition
program was necessary. The juvenile court scheduled a review
hearing for January 2018 and added that the review hearing
could be advanced upon request of the parties. DHHS then
filed this appeal.
ASSIGNMENT OF ERROR
DHHS assigns, rephrased, that the juvenile court erred in
ordering DHHS to arrange and pay for Paxton to participate in
the KidsTLC transition program.
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IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches a conclusion independently of the juve-
nile court’s findings. In re Interest of Josue G., 299 Neb. 784,
910 N.W.2d 159 (2018).
ANALYSIS
Jurisdiction.
[2,3] Before reaching the merits of DHHS’ appeal, we pause
to confirm our jurisdiction to do so. 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
Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247
(2017). Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016) gives
appellate courts jurisdiction to review “[a]ny final order or
judgment entered by a juvenile court.” We have held that an
order directing DHHS to pay for the costs of treatment is a
final order for purposes of Neb. Rev. Stat. § 25-1902 (Reissue
2016). See, In re Interest of J.M.N., 237 Neb. 116, 464 N.W.2d
811 (1991); In re Interest of B.M.H., 233 Neb. 524, 446
N.W.2d 222 (1989), citing In re Interest of G.B., M.B., and
T.B., 227 Neb. 512, 418 N.W.2d 258 (1988). We thus have
jurisdiction here.
Merits of DHHS’ Appeal.
Turning now to the merits, DHHS argues that the juvenile
court erred in ordering DHHS to arrange and pay for Paxton
to participate in a transition program at KidsTLC following
his discharge. DHHS contends that it is not in Paxton’s best
interests to participate in a transition program several hours
from his parents’ home. Instead, DHHS asserts that it would be
better for Paxton to receive “respite support” from providers in
Nebraska. Brief for appellant at 10.
DHHS does not have the authority to unilaterally determine
where Paxton should be placed and how he should be treated.
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IN RE INTEREST OF PAXTON H.
Cite as 300 Neb. 446
Neb. Rev. Stat. § 43-285 (Reissue 2016) grants broad authority
to juvenile courts to make orders which are in the best inter-
ests of juveniles under their jurisdiction. Section 43-285(1)
provides, in relevant part:
When the court awards a juvenile to the care of [DHHS],
. . . the juvenile shall, unless otherwise ordered, become
a ward and be subject to the legal custody and care of
[DHHS]. . . . [DHHS] shall have authority, by and with
the assent of the court, to determine the care, place-
ment, medical services, psychiatric services, training,
and expenditures on behalf of each juvenile committed
to it.
(Emphasis supplied.)
[4] Through § 43-285(1), the Legislature removed from
DHHS complete control of minors whose care was given to
DHHS under the juvenile code. See In re Interest of Veronica
H., 272 Neb. 370, 721 N.W.2d 651 (2006). Pursuant to
§ 43-285, the juvenile court has the authority to assent to and
dissent from decisions of DHHS with respect to what care,
placement, services, and expenditures are in the best inter-
ests of juveniles under its care and custody. In re Interest of
Veronica H., supra. We agree with the juvenile court’s exercise
of that authority here.
Paxton has previously struggled with transitions from resi-
dential treatment facilities to his parents’ home. In light of
this history and the recommendations of a psychologist, the
juvenile court, after its July 2017 review hearing, ordered
DHHS to provide Paxton with various support and mental
health services immediately upon his discharge from KidsTLC.
DHHS personnel were aware of the specific services and the
urgency required. Yet as of the date of the hearing at issue,
11 days after Paxton’s discharge from KidsTLC, DHHS had
not arranged for these services to be provided to Paxton. By
contrast, the KidsTLC transition program was identified as
ready and available to assist Paxton in transitioning home.
Given Paxton’s undisputed need for immediate services and
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IN RE INTEREST OF PAXTON H.
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the fact that KidsTLC was the only identifiable provider of
such services at the time of the hearing, we agree that it was
in Paxton’s best interests to participate immediately in the
KidsTLC transition program.
DHHS’ argument that Paxton would be better served by
respite care provided locally does not alter our conclusion.
This argument hinges on the faulty premise that local respite
care was an available alternative as of the hearing on this mat-
ter. But the juvenile court was not presented with a choice
between the transition program at KidsTLC and ideal or even
functioning local respite care. Its options were to direct that
Paxton immediately receive transition services, which all agree
he urgently required, at KidsTLC, or to allow him to continue
to go without services until DHHS could arrange for them to
be provided locally. Faced with those alternatives and aware
of Paxton’s history, we do not hesitate to find that the juvenile
court acted in Paxton’s best interests.
[5] Neither are we moved by DHHS’ contention that, in the
long term, Paxton would be better served by local care than
care provided at KidsTLC. On this point, there actually appears
to be some agreement among everyone involved that, at some
time, it would be best for Paxton to leave the KidsTLC pro-
gram and receive any necessary care locally. But the question
of Paxton’s long-term participation in the KidsTLC program
was not presented to or decided by the juvenile court in the
order under appeal. Appellate courts will not consider issues on
appeal that were not presented to or passed upon by the trial
court. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655
N.W.2d 672 (2003).
The juvenile court’s statement that it was in “everyone’s
best interest” that Paxton eventually receive local services, as
well as its stated willingness to continue to monitor whether
services at KidsTLC are necessary, strongly suggests that the
juvenile court is open to considering, presumably with the aid
of new evidence, whether it remains in Paxton’s best interests
to receive services at KidsTLC. This court, however, is not the
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IN RE INTEREST OF PAXTON H.
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place for that decision to be made in the first instance. We are
limited to reviewing the decision of the juvenile court based on
the record available to us. Having performed that review, we
find no basis to disagree with the juvenile court.
CONCLUSION
Upon our de novo review of the record, we conclude that
the juvenile court did not err in ordering DHHS to arrange and
pay for Paxton to receive services at KidsTLC. Accordingly,
we affirm.
Affirmed.