In re Interest of Violet T. ( 2013 )

Nebraska Advance Sheets
IN RE INTEREST OF VIOLET T. 949
Cite as 286 Neb. 949with a lack of information regarding the nature and extent
of the misconduct and the attorney’s present or future fit-
ness to practice law. We declined to disbar the attorney and
instead imposed an indefinite suspension. Similarly, under
the facts of this case, we conclude that an indefinite suspen-
sion, with a minimum suspension of 3 years, is the appropri-
ate discipline.
CONCLUSION
We find and hereby order that Tonderum should be indefi-
nitely suspended from the practice of law in the State of
Nebraska effective upon the filing of this opinion, with a
minimum suspension of 3 years. Any application for reinstate-
ment filed by Tonderum after the minimum suspension period
shall include a showing under oath which demonstrates her
fitness to practice law and fully addresses the circumstances
of the instant violation.
Tonderum is directed to comply with Neb. Ct. R. § 3-316,
and upon failure to do so, she shall be subject to punishment
for contempt of this court. Tonderum is also directed to pay
costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114and 7-115 (Reissue 2012) and Neb. Ct. R. §§ 3-310(P) and
3-323(B) within 60 days after the order imposing costs and
expenses, if any, is entered by the court.
Judgment of suspension.
In re I nterest of Violet T., a child
under 18 years of age.
State of Nebraska, appellant, v.
Abigael T., appellee.
___ N.W.2d ___
Filed November 22, 2013. No. S-13-084.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which
does not involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion independent from
the lower court’s decision.
2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
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950 286 NEBRASKA REPORTS
3. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a court’s power
to hear and determine a case in the general class or category to which the pro-
ceedings in question belong and to deal with the general subject involved in the
action or proceeding before the court and the particular question which it assumes
to determine.
4. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created court of limited
and special jurisdiction, a juvenile court has only such authority as has been con-
ferred on it by statute.
5. Juvenile Courts. The Nebraska Juvenile Code should be liberally construed.
6. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile, the juve-
nile court’s only concern is whether the conditions in which the juvenile pres-
ently finds himself or herself fit within the asserted subsection of Neb. Rev. Stat.
§ 43-247 (Reissue 2008).
7. Jurisdiction: Minors: Domicile: Child Custody. The jurisdiction of a state to
regulate the custody of an infant found within its territory does not depend upon
the domicile of the parents.
Appeal from the Separate Juvenile Court of Douglas County:
Douglas F. Johnson, Judge. Appeal dismissed.
Donald W. Kleine, Douglas County Attorney, Debra Tighe-
Dolan, and Emily H. Anderson, Senior Certified Law Student,
for appellant.
Kate E. Placzek, of Law Office of Kate E. Placzek, for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
The Douglas County Attorney (the State) filed an amended
petition alleging Violet T. was a minor child within the mean-
ing of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) due to the
faults and habits of her biological mother, Abigael T. The State
also filed a motion for temporary custody. Abigael moved to
dismiss. Finding it lacked subject matter jurisdiction, the sepa-
rate juvenile court of Douglas County dismissed the petition.
We dismiss this appeal.
BACKGROUND
Violet was born in a hospital located in Douglas County,
Nebraska, in November 2012. According to the petition filed
Nebraska Advance Sheets
IN RE INTEREST OF VIOLET T. 951
Cite as 286 Neb. 949by the State, Violet tested positive for methamphetamine at
birth. Abigael admitted to using methamphetamine during
pregnancy and stated she was not prepared to care for an
infant. Violet was discharged from the hospital a few days after
her birth and was taken to live with relatives in Iowa. It is not
apparent from the record who took Violet from the hospital to
her relatives in Iowa.
On November 16, 2012, the State filed a petition alleging
Violet was a minor child living or to be found in Douglas
County who came within the meaning of § 43-247(3)(a) due to
the faults and habits of Abigael. The petition alleged that Violet
was in the custody of the Nebraska Department of Health and
Human Services (DHHS). The State also filed a motion for a
protective custody hearing.
On November 21, 2012, a hearing was held in juvenile
court. At that hearing, DHHS clarified that Violet was not in
its custody. Counsel for Violet’s mother moved to dismiss,
arguing that although Violet was born in Nebraska and Abigael
had requested voluntary services from DHHS, Violet had never
actually lived in Nebraska. The State objected to the motion.
The objection was sustained, and the case was set for a hearing
on the motion to dismiss.
On December 3, 2012, the State filed an amended petition
alleging that Violet was a minor child “born, domiciled, liv-
ing or to be found in Douglas County, Nebraska,” who came
within the meaning of § 43-247(3)(a) due to the faults and hab-
its of her biological mother, Abigael. The petition stated that
Abigael’s address was unknown and that Violet was currently
residing in Council Bluffs, Iowa. The State also filed a motion
for temporary custody, along with an affidavit from the social
worker who had investigated the case while Violet was still in
the hospital. The same day, the juvenile court issued an order
granting DHHS immediate custody of Violet.
On December 10, 2012, a hearing was held in the juvenile
court. Abigael renewed her motion to dismiss based on lack of
subject matter jurisdiction and improper venue. DHHS joined
the motion, agreeing that there was no jurisdiction because
Violet was “not found in Douglas County [and] had already
been voluntarily placed by [Abigael] with relatives in Iowa.”
Nebraska Advance Sheets
952 286 NEBRASKA REPORTS
The State and the guardian ad litem objected to the motion.
The juvenile court heard arguments and received evidence. The
parties stipulated that Violet was born in Douglas County but
that upon discharge from the hospital, she went to live in Iowa
and remained there at the time of filing the petition and at the
time of the hearing.
On January 2, 2013, the juvenile court issued an order dis-
missing the amended petition for lack of subject matter juris-
diction. The State appeals.
ASSIGNMENT OF ERROR
On appeal, the State assigns that the juvenile court erred in
refusing to establish subject matter jurisdiction over the minor
child, Violet.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent from the lower court’s decision.1
[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.2
ANALYSIS
[3] The State’s sole argument on appeal is that the juvenile
court erred in finding that it lacked subject matter jurisdic-
tion. Subject matter jurisdiction is a court’s power to hear and
determine a case in the general class or category to which the
proceedings in question belong and to deal with the general
subject involved in the action or proceeding before the court
and the particular question which it assumes to determine.3
Abigael asserted, and the juvenile court found, that the court
lacked authority to hear and determine whether Violet was a
juvenile within the meaning of § 43-247(3)(a).
1
See In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).
2
See id.3
Id.Nebraska Advance Sheets
IN RE INTEREST OF VIOLET T. 953
Cite as 286 Neb. 949[4,5] As a statutorily created court of limited and special
jurisdiction, a juvenile court has only such authority as has
been conferred on it by statute.4 The Nebraska Juvenile Code
should, however, be liberally construed.5
[6] Section 43-247(3) states that the juvenile court in each
county shall have jurisdiction over “[a]ny juvenile . . . who
lacks proper parental care by reason of the fault or habits of
his or her parent, guardian, or custodian.” We have held that
“to obtain jurisdiction over a juvenile, the court’s only con-
cern is whether the conditions in which the juvenile presently
finds himself or herself fit within the asserted subsection of
§ 43-247.”6 Section 43-247 mentions neither the residence of a
parent nor the residence of a child.
[7] The State argues that Violet’s absence from Nebraska
was temporary and, further, that the domicile of a child is
determined by the residence of the child’s custodian. But we
have stated:
The jurisdiction of a state to regulate the custody
of an infant found within its territory does not depend
upon the domicile of the parents. It has its origin in the
protection that is due to the incompetent or helpless.
As we said in In re Application of Reed [152 Neb. 819,
43 N.W.2d 161 (1950)]: “The jurisdiction of a state to
regulate the custody of infants found within its territory
does not depend upon the domicile of the child, but it
arises out of the power that every sovereignty possesses
as parens patriae to every child within its borders to
determine its status and the custody that will best meet
its needs and wants, and residence within the state
suffices even though the domicile may be in another
jurisdiction.”7
4
In re Interest of Jorge O., 280 Neb. 411, 786 N.W.2d 343 (2010).
5
See In re Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d 843 (2010).
6
In re Interest of Angelica L. & Daniel L., 277 Neb. 984, 1004-05, 767
N.W.2d 74, 91 (2009).
7
Jones v. State, 175 Neb. 711, 717, 123 N.W.2d 633, 637 (1963) (emphasis
supplied).
Nebraska Advance Sheets
954 286 NEBRASKA REPORTS
In the case at hand, Violet was born in Nebraska, but was
no longer within this state’s borders at the time the petition
was filed. Although the State suggests Violet was in Iowa
temporarily, the facts of this case as established by the record
indicate that apart from the days just following her birth, Violet
has never lived anywhere else but in Iowa. As is established
by this record, there is no Nebraska home to which Violet
might return.
Additionally, we note that Neb. Rev. Stat. § 43-274(1)
(Reissue 2008) authorizes a county attorney “having knowl-
edge of a juvenile in his or her county” who appears to
be within § 43-247 to file a petition in “the court having
j
­urisdiction in the matter.” In this case, however, Violet was
not in Douglas County, even temporarily, at the time the
petition was filed. We conclude the parens patriae power of
the State does not provide a basis for finding jurisdiction in
this case.
We also find no jurisdiction under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA).8 The
UCCJEA provides that a court has jurisdiction to make a cus-
tody determination if:
(1) [T]his state is the home state of the child on the
date of the commencement of the proceeding or was
the home state of the child within six months before the
commencement of the proceeding and the child is absent
from this state but a parent or person acting as a parent
continues to live in this state;
(2) a court of another state does not have jurisdiction
under subdivision (a)(1) of this section, or a court of the
home state of the child has declined to exercise jurisdic-
tion on the ground that this state is the more appropriate
forum under section 43-1244 or 43-1245, and:
(A) the child and the child’s parents, or the child and
at least one parent or a person acting as a parent, have
a significant connection with this state other than mere
physical presence; and
8
Neb. Rev. Stat. § 43-1226 et seq. (Reissue 2008 & Cum. Supp. 2012).
Nebraska Advance Sheets
IN RE INTEREST OF VIOLET T. 955
Cite as 286 Neb. 949(B) substantial evidence is available in this state con-
cerning the child’s care, protection, training, and per-
sonal relationships;
(3) all courts having jurisdiction under subdivision
(a)(1) or (a)(2) of this section have declined to exercise
jurisdiction on the ground that a court of this state is the
more appropriate forum to determine the custody of the
child under 43-1244 or 43-1245; or
(4) no court of any other state would have jurisdiction
under the criteria specified in subdivision (a)(1), (a)(2), or
(a)(3) of this section.9
“Home state” is defined as the state in which a child has
lived with a parent or person acting as parent for at least 6 con-
secutive months, or from birth, before the commencement of
the proceeding.10 Because, apart from a few days just follow-
ing her birth, Violet has never lived in Nebraska, and Nebraska
is not Violet’s home state under the UCCJEA. This is true
despite the fact that Violet was born in Nebraska.11 Therefore,
in the case at hand, none of the provisions of the UCCJEA
provide a statutory basis for jurisdiction.
Finally, the State cites to In re Interest of Breana M.12 But
contrary to the arguments of the State, that case provides us
with no basis for jurisdiction in this matter. In re Interest
of Breana M. involves the exercise of jurisdiction across
Nebraska counties but is wholly inapplicable here, where the
issue involves the jurisdiction of a child located in a state other
than Nebraska.
CONCLUSION
We agree the juvenile court lacked subject matter jurisdic-
tion in this case. For the foregoing reasons, we dismiss the
State’s appeal.
Appeal dismissed.
9
§ 43-1238.
10
§ 43-1227(7).
11
See Carter v. Carter, 276 Neb. 840, 758 N.W.2d 1 (2008).
12
In re Interest of Breana M., 18 Neb. App. 910, 795 N.W.2d 660 (2011).