In re Interest of B.B. , 29 Neb. Ct. App. 1 ( 2020 )

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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1In re Interest of B.B. et al., children under
18 years of age.
State of Nebraska, appellee, v.
Amie B., appellant.
___ N.W.2d ___
Filed October 13, 2020. No. A-19-1206.
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. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal 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 matter involved.
4. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
5. Jurisdiction: Juvenile Courts. Subject matter jurisdiction is vested in
the juvenile court by an adjudication that a child is a juvenile described
in Neb. Rev. Stat. § 43-247 (Reissue 2016).
6. Jurisdiction: Juvenile Courts: Parent and Child: Immunity. The
immunity provision set forth in Neb. Rev. Stat. § 28-716 (Reissue
2016) which relates to mandatory reporting of suspected child abuse
or neglect does not prohibit the juvenile court from acquiring jurisdic-
tion of juveniles determined to be within the meaning of § 43-247(3)(a)
(Reissue 2016), even when such reporting is made by the parent of the
subject juvenile(s).
7. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1Appeal from the Separate Juvenile Court of Lancaster
County: Roger J. Heideman, Judge. Affirmed.
Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for
appellant.
Patrick F. Condon, Lancaster County Attorney, and Shellie
D. Sabata for appellee.
Steffanie J. Garner Kotik, of Kotik & McClure, guardian
ad litem.
Moore, Chief Judge, and Bishop and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
Amie B. appeals from an order of the juvenile court in an
ongoing juvenile case that, in part, removed eight children
from her home and also granted sibling visitation between
three other children. In addition, she challenges the continua-
tion of a placement hearing following an emergency placement
order. And for the first time, she raises subject matter jurisdic-
tion as a matter of plain error. We affirm.
II. BACKGROUND
This case involves 11 children: B.B., born in 2004; N.B.,
born in 2005; Q.B., born in 2006; M.B., born in 2008; twins
G.M. and Z.M., born in 2012; J.M., born in 2013; L.M., born
in 2014; R.M., born in 2015; and twins C.M. and K.M., born
in 2017.
Amie is the adoptive mother of B.B., N.B., Q.B., and M.B.;
Anthony B., Amie’s ex-husband, is the adoptive father of
these four children. Amie is the biological mother of L.M.,
R.M., C.M., and K.M.; Gabriel M. is the biological father of
these four children. In addition, Gabriel is also the biological
father of G.M., Z.M., and J.M.; the biological mother of these
three children either relinquished or otherwise had her paren-
tal rights terminated several years ago. Neither Anthony nor
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29 Nebraska Appellate Reports
IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1Gabriel is part of this appeal, and they will only be discussed
as necessary.
In the record before us, Gabriel is sometimes referred to
as “Amie’s fiance,” and at other times, they are referred to as
“husband and wife.” However, at a hearing on November 21,
2019, Gabriel was asked, “Just to clarify, [Amie] is not your
wife, correct?” Gabriel, via an interpreter, responded, “No.” In
any event, Amie and Gabriel lived together with all of the chil-
dren (although Q.B. lived with Anthony for a period of time,
including December 2018, but Q.B. returned to live in Amie
and Gabriel’s home sometime in February 2019).
On December 31, 2018, the State filed a motion for and
was granted an ex parte order for the emergency temporary
custody of N.B., based on allegations that he engaged in sex­
ually assaultive behaviors toward some of his siblings within
the family home. N.B. was placed in the temporary custody
of the Nebraska Department of Health and Human Services
(DHHS). In an order filed on January 14, 2019, the juvenile
court noted that at a temporary custody hearing on January 9,
Amie, Gabriel, and Anthony had no objection to the temporary
legal and physical custody of N.B. remaining with DHHS for
out-of-home placement, and the court entered its order accord-
ingly. N.B. has remained out of the home ever since.
The State filed a petition on January 2, 2019, and amended
petitions on January 14 and on April 29 (amended in court on
April 25, but not filed until April 29), alleging that all 11 chil-
dren were children as defined by Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2016) in that they were without proper parental sup-
port through no fault of Amie and Gabriel or that the children
were in a situation dangerous to life or limb or injurious to
their health or morals. As finally amended, the State spe-
cifically alleged that on one or more occasions since August
2018, N.B. engaged in sexually inappropriate behaviors with
one or more of his siblings residing in the family home, and
that despite safety planning, the family was unable to pre-
vent continued incidents of inappropriate contact between the
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1siblings. The State further alleged that the situation placed the
children at risk of harm.
In an order filed on April 29, 2019, the juvenile court
adjudicated all 11 children as being within the meaning of
§ 43-247(3)(a), based on Amie’s and Gabriel’s no contest pleas
to the allegations in the petition, as finally amended, at a hear-
ing on April 25.
In its disposition order filed on June 20, 2019, the juvenile
court found that the primary permanency plan for N.B. was
reunification and that the primary permanency plan for the
other 10 children was family preservation. The court ordered
that N.B. was to remain in the custody of DHHS. The court
ordered that the other 10 children be placed in the temporary
legal custody of DHHS in order to ensure necessary services
and oversight were provided; physical custody of those 10 chil-
dren was to remain with Amie and Gabriel. N.B. was ordered
to follow all conditions of his probation and placement, fol-
low all recommendations from the evaluation completed by a
named provider, and have no contact with his siblings except
as approved by DHHS after consultation with the therapists.
B.B., Q.B., M.B., G.M., Z.M., J.M., and L.M. were ordered to
participate in individual therapy as arranged by DHHS. Amie,
Gabriel, and Anthony were ordered to cooperate with family
therapy when it was recommended by the children’s therapists
and to maintain legal means of income and appropriate hous-
ing. Finally, the court ordered that there was to be no physical
discipline of the children by any parent or care provider. A
review hearing was scheduled for September 5.
On August 29, 2019, the State filed a motion for and was
granted an order approving an emergency change in place-
ment for all of the children, except for N.B., from the home
of Amie and Gabriel, based on allegations of sexual contact
between siblings, domestic violence in the home, inappropriate
physical discipline, and neglect (i.e., not enough food for the
children). The court ordered temporary custody and placement
of the children with DHHS, pending a placement hearing. A
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1hearing was set for September 4, but after a number of con-
tinuances, it was ultimately held on November 21.
On November 12, 2019, N.B.’s guardian ad litem (GAL),
on behalf of N.B., filed a motion asking the juvenile court for
an order approving sibling visitation between N.B. and his
brothers, B.B. and Q.B. A hearing on the motion was set for
November 21.
On November 21, 2019, and as relevant to this appeal, the
matter came on for a hearing for review of disposition, a place-
ment hearing pursuant to the court’s August 29 order, and a
hearing on the motion for sibling visitation. A summary of the
relevant evidence follows.
Rebekah Henderson, a DHHS children and family services
specialist, had been assigned to this case since January 2019.
Henderson testified that prior to August, it was “difficult” to
set meetings with Amie and see the children. When asked if
there were scheduling issues because of the commitments of
the family, Henderson responded, “I’m not sure why it was
difficult. I know there were baseball and different activities
that went clear into the evening which made it very difficult to
schedule the meetings.”
Henderson testified that Linda Marcy, M.B.’s therapist, for-
warded Henderson a copy of an email Marcy received from
Nicole Sabata on August 28, 2019. Sabata is the therapist work-
ing with Z.M., J.M., and L.M. And according to Henderson,
Marcy oversees Sabata. In the email, which was received
into evidence, Sabata stated that she was told that Z.M. (girl,
approximately age 7 in 2019) and L.M. (girl, approximately
age 5 in 2019) shower together; according to Sabata, it “is
a concern if any siblings are showering together since there
[have] been problems with sexualized behavior already.” L.M.
told Sabata that B.B. and Q.B. (boys, approximately ages 15
and 13 in 2019) “used to put their private parts into her private
parts, but they no longer do it as [she] sleeps in her parents
room.” L.M. also reported that Amie was “very mean to her
and will yell, ignore, and grab her arm putting her to bed.”
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1And L.M. reported being “spank[ed]” by Gabriel, but she also
indicated that she was not being spanked anymore. Sabata
witnessed Gabriel “pull” on the children’s arms to get them to
quit doing things and to come for sessions, and she felt “it was
more aggressive than it should have been.” Sabata also stated
that she had been told by the children that there were days
when they would go to bed without eating dinner.
Henderson forwarded the email to her supervisor, who then
called Sabata to verify the information in the email. After that,
an affidavit for emergency placement was drafted. A motion for
emergency placement was filed, and an order was entered on
August 29, 2019. Thereafter, the children were interviewed at
the Child Advocacy Center (CAC).
Henderson was able to listen in on the CAC interviews
as they were occurring. Henderson stated that during L.M.’s
interview, L.M. was not specifically asked if B.B. or Q.B. put
their privates in her privates, but when L.M. was asked general
questions about inappropriate sexual touching and whether
anyone had touched her, L.M. said, “No.” When reminded that
she disclosed some things to her therapist, L.M. said that she
did not want to talk about it and that she already told her thera-
pist so she should not have to talk about it anymore.
Henderson testified that during the CAC interviews, Q.B.
stated he heard Amie “yell at the kids to stop touching each
other’s butts, but he didn’t actually see anything physically.”
According to Henderson, during B.B.’s interview, he stated
that “the little kids do touch each other while they’re in the
shower together. . . . [H]e saw the boys touching each other’s
penises and butts when they were showering together when he
walked by.” B.B. “also stated when the kids would go outside
to play, he would see both girls and boys take off all their
clothes and touch each other like they do in the shower”; he
said “they would turn on the water hose and get everything
wet and jump on the trampoline with no clothes on.” B.B.
stated it was M.B.’s job to watch the children. (M.B. is a girl,
approximately age 11 in 2019.) When asked if B.B. gave a
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1timeframe for when this was occurring, Henderson said he
did not give a specific date, but it was sometime after Q.B.
had come back to the home. Q.B. returned to Amie’s home in
February 2019.
According to Henderson, during G.M.’s CAC interview, he
was asked about discipline in the home, and G.M. “state[d]
he would get time-outs, spanking by mom with a belt on his
bumm-bumm.” Henderson stated that a timeframe for such dis-
cipline was not specified.
Henderson testified her supervisor was told by Sabata that
Amie refused to sign a safety plan. However, Amie testified
that she did not refuse to sign the safety plan, but, rather,
before signing it, she needed clarifications as to when she was
supposed to call the police or the “hotline” when rules were
broken (e.g., tickling, horseplay, wrestling, or entering a room
without knocking). According to Amie, it was agreed that it
would be discussed later, as documented in an email exchange.
A copy of an email exchange between Amie and Marcy appears
in our record. In the exchange, Amie inquired, “Was the
revised version done or not yet? If so I would also like a copy
of that one.” Marcy responded, “My plan was to meet with you
individually after the kiddo’s got into school and to make sure
we have everything on there.” Amie testified that a new safety
plan was never submitted to her.
According to Henderson and her court report received into
evidence, some of the children have been exhibiting sexual-
ized behaviors as reported by their foster parents; this is also
noted in a GAL report that was received into evidence. The
reports also state that the foster parents for some of the chil-
dren have expressed concerns about the children’s educational
progress. According to Amie’s testimony, at the beginning of
the 2019-20 school year, Amie made a school change for the
middle five children. She moved them from public school to
an unaccredited school, which Amie agreed was essentially a
group of homeschool individuals.
According to Henderson, there were ongoing concerns about
the children’s safety if they were to be returned to Amie’s
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1home. Henderson recommended that intensive family reunifi-
cation services and a safety plan be implemented and that the
children be returned gradually and not all at once.
Amie testified the she had successfully completed intensive
family supervision, which had been set up in January 2019.
She also stated that family support had been in the home since
July. When asked about criticism that she did not make time
available for family support, Amie said that “it wasn’t that
we were not willing to meet with [family support], it was
just coordinating a time that we would be available,” because
“[w]ith this many children . . . many of them are in sports
and over the summer had lots of sports activities going on.”
Amie stated she had been working with family support since
the removal of the children. Amie was in support of thera-
peutic services for her children; she said that B.B. and N.B.
had actually begun therapy in October 2018, “before any of
this occurred.”
When asked to address the issue of food availability in her
home, Amie stated, “We’ve got plenty of food in our home.”
However, Amie said that she “refuse[d] to be a short-order
cook” and that the rule was “if you don’t want to eat it, then
that’s your decision,” but she “wasn’t going to make 20 differ-
ent meals because everybody wanted something different.”
When asked if she and Gabriel had ever been cited or had
police contact because of domestic violence in the home, Amie
responded, “Never.” Amie said that she and Gabriel argue, but
they do not fight; she does speak “quite loudly” to Gabriel
because a hearing test indicated that he is in need of a hearing
device. According to Amie, she and Gabriel stopped using cor-
poral punishment in 2018. Separation, timeouts, and discussion
are now used with the children.
Sibling visitation between N.B. and B.B. and Q.B. was also
addressed at the hearing, and the relevant evidence will be dis-
cussed in the analysis section.
In its amended order filed on November 25, 2019, the
juvenile court vacated the August 29 order of emergency
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1placement. However, the court ordered that the children, with
the exception of B.B. and Q.B., were to remain in their
respective out-of-home placements “due to ongoing concern
for the . . . children’s safety in the home until such time as
additional in-home services and an appropriate safety plan are
implemented.” The court found and ordered that B.B. and Q.B.
should be placed in Amie’s home, as there were no barriers or
safety concerns that would prevent their return. All 11 children
were to continue in the legal custody of DHHS.
The juvenile court ordered B.B., Q.B., M.B., G.M., Z.M.,
J.M., and L.M. to participate in individual therapy as arranged
by DHHS. Amie, Gabriel, and Anthony were ordered to cooper­
ate with family therapy when it was recommended by the chil-
dren’s therapists and to maintain legal means of income and
appropriate housing. Amie and Gabriel were ordered to coop-
erate with intensive family preservation services and intensive
family reunification services as arranged by DHHS. The court
ordered that there was to be no physical discipline of the chil-
dren by any parent or care provider.
DHHS was ordered to formulate a safety plan to transition
the children, with the exception of N.B., home; the safety plan
was to be completed and provided to the juvenile court and all
parties no later than December 6, 2019. Amie and Gabriel were
to have reasonable rights of supervised parenting time with
utilization of safety planning with M.B., G.M., Z.M., J.M.,
L.M., R.M., C.M., and K.M., as arranged by DHHS. Amie,
Gabriel, and Anthony were to ensure all school age children
were enrolled in an education program that complied with all
applicable state laws.
N.B. was ordered to follow all conditions of his probation
and placement and to follow all recommendations from the
evaluation completed by a named provider.
The juvenile court ordered that N.B. was to have supervised
sibling visitation with B.B. and Q.B., with specified provisions.
Amie appeals the juvenile court’s amended order dated
November 25, 2019.
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1III. ASSIGNMENTS OF ERROR
Amie assigns the juvenile court erred in (1) failing to
address plain errors contained in the record, including continu-
ing jurisdiction over the minor children (except for N.B.) and
not returning legal custody to Amie, as she was the reporting
party and immune to jurisdiction pursuant to Neb. Rev. Stat.
§ 28-716 (Reissue 2016); (2) continuing the contested removal
hearing on October 8, 2019, thus depriving her of due process;
and (3) ordering sibling visitation between B.B., Q.B., and
N.B. against B.B.’s and Q.B.’s best interests.
IV. STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings. In re Interest of Michael N., 302 Neb. 652,
925 N.W.2d 51 (2019).
V. ANALYSIS
1. Jurisdiction and Immunity
Amie did not appeal the April 2019 adjudication of the
children. However, she asks this court to review the record for
plain error and find that the juvenile court’s jurisdiction over
all of the children, except for N.B., should be vacated. Amie
also asks that we direct the juvenile court to enter an order ter-
minating jurisdiction over her as it relates to all of the children,
except for N.B. In support of her argument, Amie contends
that despite being the one to report concerns that N.B. could
not continue to reside in her home, a juvenile petition was
filed against her which unjustifiably subjected her other minor
children to the jurisdiction of the juvenile court in violation of
the § 28-716 mandate of immunity. Amie also contends that in
addition to taking proactive steps regarding N.B.’s behavior,
she continually met all of the children’s needs, and therefore,
the evidence was not sufficient to support the adjudication
under the petition.
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1[2] In a juvenile case, as in any other appeal, before reaching
the legal issues presented for review, it is the duty of an appel-
late court to determine whether it has jurisdiction over the mat-
ter before it. In re Interest of Octavio B. et al., 290 Neb. 589,
861 N.W.2d 415 (2015).
(a) Subject Matter Jurisdiction
[3,4] Subject matter jurisdiction is the power of a tribunal
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 matter involved. In re Interest of Jeremy U.
et al., 304 Neb. 734, 936 N.W.2d 733 (2020). Lack of subject
matter jurisdiction may be raised at any time by any party or
by the court sua sponte. In re Interest of Kirsten H., 25 Neb.
App. 909, 915 N.W.2d 815 (2018).
[5] Section 43-247 provides for the juvenile court’s jurisdic-
tion over certain individuals and proceedings. In re Interest of
Jeremy U. et al., supra. See, also, In re Interest of Devin W. et
al., 270 Neb. 640, 707 N.W.2d 758 (2005) (with regard to juve-
nile court adjudication proceedings under § 43-247, subject
matter jurisdiction is vested in juvenile court by adjudication
that child is juvenile described in § 43-247).
The subject matter jurisdiction of the juvenile court relative
to this case is set forth in § 43-247, which provides, in relevant
part, as follows:
The juvenile court in each county shall have jurisdic-
tion of:
....
(3) Any juvenile (a) who is . . . without proper sup-
port through no fault of his or her parent, guardian, or
custodian; . . . who is in a situation . . . dangerous to life
or limb or injurious to the health or morals of such juve-
nile . . . .
....
(5) The parent, guardian, or custodian of any juvenile
described in this section; [and]
....
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1(12) Except as provided in subdivision (11) of this sec-
tion, any individual adjudged to be within the provisions
of this section until the individual reaches the age of
majority or the court otherwise discharges the individual
from its jurisdiction.
To obtain jurisdiction over a juvenile at the adjudication stage,
the court’s only concern is whether the conditions in which the
juvenile presently finds himself or herself fit within the asserted
subsection of § 43-247. In re Interest of Kane L. & Carter L.,
299 Neb. 834, 910 N.W.2d 789 (2018). The State must prove
such allegations by a preponderance of the evidence. Id.Here, the State alleged all 11 children were children as
defined by § 43-247(3)(a) in that they were without proper
parental support through no fault of Amie or that the children
were in a situation dangerous to life or limb or injurious to
their health or morals. As finally amended, the State specifi-
cally alleged that on one or more occasions since August 2018,
N.B. engaged in sexually inappropriate behaviors with one
or more of his siblings residing in the family home, and that
despite safety planning, the family was unable to prevent con-
tinued incidents of inappropriate contact between the siblings.
The State further alleged that the situation placed the children
at risk of harm.
Amie pled no contest to the allegations in the petition, as
finally amended, at the adjudication hearing. The State offered
an exhibit containing police department reports into evidence
as the factual basis at the hearing. The exhibit, which was
received without objection, reveals the following.
On December 9, 2018, Amie advised the “Child Abuse
Hotline” that she found out N.B. (13 years old) had allegedly
been digitally penetrating two of his brothers—G.M. (6 years
old) and J.M. (5 years old). Amie also suspected that N.B. may
have perpetrated on other children within the home, most nota-
bly R.M. (3 years old). Interviews at the CAC were conducted
on December 20. During those interviews, both G.M. and J.M.
disclosed having their penises touched by N.B. and having
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1their anuses digitally penetrated by N.B. on countless occa-
sions. J.M. also disclosed that R.M. was digitally penetrated by
N.B. Additionally, both G.M. and J.M. disclosed having been
“spank[ed]” with a belt by Gabriel. During the course of his
CAC interview on December 21, R.M. was “either not under-
standing the conversation or did not want to talk” and the inter-
view was ended. During her interview on December 21, L.M.
(4 years old) disclosed that N.B. penetrated her vagina digi-
tally and with his penis. L.M. said that when she told Gabriel
that N.B. was touching her, Gabriel just made N.B. go to his
room. She also disclosed that Amie and Gabriel spanked her
with a belt. On December 28, Amie informed a DHHS case-
worker that she believed N.B. had “re-offended last evening on
[L.M.]” Amy reported that she saw L.M. leave N.B.’s bedroom
around 8:30 p.m. and that upon questioning, L.M. told Amie
that N.B. “‘humped’” her. As a result, N.B. was interviewed by
law enforcement. During his interview on December 28, N.B.
admitted inserting his fingers into the exposed “butt cheeks”
of G.M. and J.M., but N.B. said his intent was not to insert his
finger into their anuses. N.B. also admitted that 2 months prior,
he lay on his side behind L.M. after he removed their pants
and he placed his erect penis between L.M.’s legs up against
her vagina and “‘hump[ed]’” her from behind; however, he
denied actually inserting his penis into her vagina. N.B. also
stated that he and one of his brothers walked in on another
brother “doing the same thing” to another sibling in the sum-
mer of 2018; however, none of the other children reported
anything like this occurring. N.B. stated he had been struggling
to control his sexual urges. It was decided that N.B. would be
removed from the home.
Based on the factual basis and Amie’s no contest plea,
the State proved the allegations in the amended petition by
a preponderance of the evidence. Accordingly, the juvenile
court properly acquired jurisdiction over all 11 children and
their mother, Amie, when it found the conditions fit within
§ 43-247(3)(a) and adjudicated the children as juveniles
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1within the meaning of § 43-247(3)(a). See, § 43-247(3)(a) and
(5); In re Interest of Kane L. & Carter L., 299 Neb. 834, 910
N.W.2d 789 (2018).
(b) Immunity
As noted previously, Amie contends that despite being the
one to report concerns that N.B. could not continue to reside in
her home, a juvenile petition was filed against her which unjus-
tifiably subjected her other minor children to the jurisdiction of
the juvenile court in violation of the “mandate of immunity”
set forth in § 28-716. Brief for appellant at 41. As a result,
she suggests that this court should direct the juvenile court to
terminate jurisdiction over her as it relates to all of the minor
children except for N.B. However, we do not read the immu-
nity provision for a person required to report child abuse or
neglect as set forth in § 28-716 as precluding the juvenile court
from acquiring jurisdiction over Amie and all of her children
under the juvenile code.
Section 28-716 is part of the Child Protection and Family
Safety Act. See Neb. Rev. Stat. §§ 28-710 to 28-727 (Reissue
2016, Cum. Supp. 2018 & Supp. 2019). Section 28-716 states:
Any person participating in an investigation or the
making of a report of child abuse or neglect required by
section 28-711 pursuant to or participating in a judicial
proceeding resulting therefrom shall be immune from any
liability, civil or criminal, that might otherwise be incurred
or imposed, except for maliciously false statements.
Notably, Amie is not being subjected to civil or criminal
liability as a result of reporting concerns related to N.B. in
the present case. Section 28-716 is found in chapter 28 of the
Nebraska Revised Statutes, which chapter pertains to “Crimes
and Punishments,” specifically article 7, which relates to
“Offenses Involving the Family Relation.” The language of
§ 28-716 establishes that immunity from any liability, civil or
criminal, is available to a person participating in an investiga-
tion or making a report of child abuse or neglect as required
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1by § 28-711. Section 28-711 relates to mandatory reporting
to law enforcement or DHHS by physicians, medical institu-
tions, nurses, school employees, social workers, the Inspector
General of Nebraska Child Welfare, or any other person who
has reasonable cause to believe a child is being subjected to
conditions or circumstances which reasonably would result in
child abuse or neglect. “The Legislature declared that it was
the public policy of the State to protect children who may be
subject to abuse or neglect and to require the reporting of child
abuse or neglect in certain settings.” Holloway v. State, 293
Neb. 12, 24, 875 N.W.2d 435, 446 (2016). See § 28-710.01
(it is policy of this state to require reporting of child abuse
or neglect in home, school, and community settings). These
types of mandatory reporting statutes reflect a state’s strong
public interest in protecting children from abuse by the policy
of mandatory reporting of actual and suspected child abuse
or neglect. See Myers v. Lashley, 44 P.3d 553 (Okla. 2002)
(Oklahoma’s child abuse reporting laws express state’s strong
public interest in protecting children from abuse by policy
of mandatory reporting of actual and suspected child abuse
or neglect to appropriate authorities and agencies, and with
protection of children being priority, person who in good faith
reports suspected child abuse or neglect shall have immunity
from any liability, civil or criminal). Such mandatory report-
ing statutes are not designed to preclude juvenile courts from
acquiring jurisdiction over children or their parents; to the con-
trary, they are designed to compel notification of child abuse
or neglect to proper authorities in order to place such children
and their parents under the supervision of the juvenile court
system to help address such concerns and to protect from civil
or criminal liability those persons whose mandatory reporting
may lead to such investigations or proceedings. The goal is to
protect the interests of children and to help parents strengthen
and preserve their family. See § 28-710.01 (policy of this state
to provide protective and supportive services designed to pre-
serve and strengthen family in appropriate cases).
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Cite as 29 Neb. App. 1There is only one Nebraska case that cites to § 28-716, and
it involved the immunity of state actors from a civil suit after
a mother’s name was entered into the Abused or Neglected
Child Registry maintained by the then Nebraska Department
of Social Services; the state actors, in their individual capaci-
ties, were immune from liability under state law pursuant to
§ 28-716. See Shearer v. Leuenberger, 256 Neb. 566, 591
N.W.2d 762 (1999), disapproved on other grounds, Simon v.
City of Omaha, 267 Neb. 718, 677 N.W.2d 129 (2004).
Amie does not explain how being under the juvenile court’s
jurisdiction, designed to preserve and strengthen her family,
equates to her being subjected to civil or criminal liability as
a result of reporting her concerns related to N.B. The foremost
purpose and objective of the juvenile code is the protection of
a juvenile’s best interests, with preservation of the juvenile’s
familial relationship with his or her parents where the continu-
ation of such parental relationship is proper under the law. In
re Interest of Corey P. et al., 269 Neb. 925, 697 N.W.2d 647(2005). See, also, In re Interest of Kane L. & Carter L., 299
Neb. 834, 910 N.W.2d 789 (2018) (purpose of adjudication
phase of juvenile proceeding is to protect interests of child).
Thus, the goal of juvenile proceedings is not to punish parents,
but to protect children and promote their best interests. In re
Interest of Corey P. et al., supra. The potential consequences
of child protection proceedings range from an order requir-
ing supervision of the child by a child protection agency, to
leaving the child in the custody of the parents, to an order for
the temporary or permanent removal of the child. Id. These
consequences are designed to protect innocent children, not to
punish parents; their effect on the parents is merely collateral
to their main purpose. Id.
[6] Accordingly, we conclude that the immunity provision
set forth in § 28-716 which relates to mandatory reporting of
suspected child abuse or neglect does not prohibit the juve-
nile court from acquiring jurisdiction of juveniles determined
to be within the meaning of § 43-247(3)(a), even when such
reporting is made by the parent of the subject juvenile(s).
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1(c) Legal Custody
Amie asks this court, in the event that jurisdiction contin-
ues, to direct the juvenile court to enter an order returning
the legal custody of the children, except for N.B., to her.
In its disposition order filed on June 20, 2019, the juvenile
court ordered all 11 children be placed in the legal custody
of DHHS. Amie did not appeal the June 20 disposition order.
See In re Interest of Taylor W., 276 Neb. 679, 757 N.W.2d
1 (2008) (dispositional orders are final and appealable). The
juvenile court’s subsequent orders merely continued the legal
custody determination. See In re Interest of Octavio B. et al.,
290 Neb. 589, 861 N.W.2d 415 (2015) (dispositional order
which merely continues previous determination is not appeal-
able order). Regardless, even if Amie had timely appealed the
June 20 disposition order, the evidence supported the juvenile
court’s decision. And the evidence supports the juvenile court’s
November 25 order that all 11 children continue in the legal
custody of DHHS.
2. Continuation of Removal Hearing
Amie contends the juvenile court erred in continuing the
October 8, 2019, contested hearing regarding the removal of
the minor children from her custody, thus depriving her of
due process.
(a) Procedural History Subsequent
to Emergency Removal
On August 29, 2019, the State filed a motion for and was
granted an order approving an emergency change in placement
for all of the children, except for N.B., from the home of Amie
and Gabriel, based on allegations of sexual contact between
siblings, domestic violence in the home, inappropriate physi-
cal discipline, and neglect (i.e., not enough food for the chil-
dren). The court ordered temporary custody and placement of
the children with DHHS pending a placement hearing, which
the court set for September 4. However, in a subsequent order
on August 29, the court, on its own motion, continued the
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Cite as 29 Neb. App. 1hearing scheduled for September 4 to September 5 to coincide
with the next review hearing.
As revealed in an order filed on September 16, 2019, the
matter came on for hearing on September 5. The juvenile court
found that the review hearing and hearing regarding placement
should be continued for good cause shown, on the motion of
DHHS’ counsel without objection. Accordingly, the matter was
continued to September 17, and the August 29 order approving
the emergency placement change was to continue in full force
and effect until further order of the court.
As revealed in an order filed on September 23, 2019, the
matter came on for hearing on September 17. However, Amie
and Gabriel requested a continuance to investigate some newly
provided information. The parties did not object and further
agreed to the continuance as the investigation of new allega-
tions was not completed, including CAC interviews. The court
found that the review hearing and hearing regarding placement
should be continued for good cause shown, by agreement of
counsel, and the matter was continued to October 8. And the
August 29 order approving the emergency placement change
was to continue in full force and effect until further order of
the court.
At the hearing on October 8, 2019, the State and DHHS
requested a continuance because the investigation was ongo-
ing and interviews were still occurring at the CAC, as were
medical examinations. Additionally, the day before the hear-
ing, the State and DHHS had received a number of DVD’s
containing video recordings of the CAC interviews that had
been completed, but they had not yet been able to review
those completed interviews. The State contended that without
a concluded investigation, it was not in a position to determine
whether an additional filing would be necessary. The GAL for
eight of the children (all but N.B., B.B., and Q.B.) stated her
belief that “the results of that investigation, whether or not
there will be any further filings, are things that need to be
determined prior to the issues of placement being heard by the
Court.” That GAL, as well as the GAL for N.B. and the GAL
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Cite as 29 Neb. App. 1for B.B. and Q.B., had no objection to a continuance. However,
Amie, Gabriel, and Anthony did object to a continuance.
As relevant to this appeal, Amie objected to the continu-
ance because:
This removal of the children from the parental home
occurred — heard by a different judge on the evening of
August 28th, so it’s been over 40 days. And, typically, the
— a removal would include an order that mandates that
the County Attorney, if they’re going to file additional
allegations, a supplemental petition or whatever, would
be set out in the order removing the children or changing
their placement. That hasn’t happened here and that is
what creates some of the difficulties for the parents.
We don’t have the ability to meet or provide them due
process in this situation. So for that reason, we object to
the continuance as requested.
The juvenile court stated:
At this point, there has been a judicial finding of probable
cause to make the placement change. That triggered the
hearings because that decision was contested and contin-
ues to be contested. The grounds for the removal involved
new allegations that have not been adjudicated at this
point, even though we are at [sic] dispositional phase as it
relates to the family and the legal custody of children has
been placed with [DHHS].
Um, at this point, the State has indicated they — they
are determining whether or not they will file additional
allegations. It appears that due process would require,
before proceeding with the adhering [sic], that there
would be new filings because they are totally different
allegations at this point. That’s one reason I don’t believe
we can proceed today because of that issue.
There has also been a request, because of the com-
plexity of the case, I believe, and the number of children
involved and the investigation that has been ongoing
continually but has yet to be totally completed, that some
additional time is needed. It’s a very unusual situation
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1that presents itself. However, I understand the parties
have received a date that they can appear, if the continu-
ance is granted, that I believe would give adequate time
for the State to make that determination so that a full
hearing could be held with the protections of due process
that are required.
....
I had hoped that we could resolve these issues. I’ve set it
three separate times in an attempt to do so. Unfortunately,
I don’t want to begin the case under the circumstances
that I would not be able to complete it. So I don’t want to
require the parties to redo a case because I won’t be here
to hear the rest of it [(the matter was to be transferred to
another judge due to the current judge’s retirement)].
At this point, I think, unfortunately, the continuance is
necessary. There are grounds to continue it, so I will grant
the continuance. . . .
So, at this point, the temporary orders will continue in
effect. The matter is continued.
Following the hearing on October 8, 2019, the court filed
its written order on October 16. In its written order, the court
found that the newly assigned judge should hear the total-
ity of the evidence. The court further found “the allegations
that comprise the basis for the placement change removal are
allegations that have not been adjudicated or pled and are sub-
stantially different from the matters adjudicated.” And “[d]ue
process requires a further filing if the State is seeking contin-
ued removal on the grounds set out in the placement change.”
The review hearing and hearing regarding placement was con-
tinued to November 21, and the August 29 order of emergency
placement change was to continue in full force and effect until
further order of the court.
In an order filed on November 19, 2019, the juvenile judge
now assigned to the case set a filing deadline. The order states,
“Due process requires further filing if the State is seeking con-
tinued removal of any or all of said children on the grounds
set out in the placement change. It is improper for continued
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Cite as 29 Neb. App. 1‘investigation’ by the State at the cost of the children’s removal
from their home.” Accordingly, the court found and ordered
that the August 29 order of emergency placement change “shall
expire if the [State] does not file a Supplemental Petition in
this matter by November 20, 2019, at 4:00 p.m.”
On November 21, 2019, the matter came on, in part, for
the review hearing and hearing regarding placement. At the
beginning of the hearing, the juvenile court noted that a supple-
mental petition had not been filed and that therefore, the court
was going to vacate the emergency placement order. The court
continued by stating that the matter was before it on review of
the prior disposition and “[p]lacement matters can always be
addressed by the Court in the context of a review hearing as
well.” The review hearing proceeded with testimony and evi-
dence as set forth previously.
(b) Juvenile Court’s Order
In its amended order filed on November 25, 2019, the juve-
nile court vacated the August 29 order of emergency place-
ment. However, the court ordered that the children, with the
exception of B.B. and Q.B., “should be placed in out-of-home
placements as returning them to the home would be contrary
to their health, safety, and welfare due to their parents’ need
to engage in Court-ordered services designed to ensure their
safety, specifically the implementation and utilization of inten-
sive in-home services and safety plans”; those nine children
were to remain in their current placements. The court found
and ordered that there were no barriers or safety concerns
that would prevent the return of B.B. and Q.B. to the home
of Amie. All 11 children were to continue in the legal custody
of DHHS.
(i) Delay in Emergency
Placement Hearing
Amie claims that she was deprived of the ability to par-
ent her children for 85 days without an opportunity to be
heard. However, it is the last 44 days—the time between the
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1continued October 8, 2019, hearing and the November 21
hearing—that she takes issue with. And she asks this court
to “declare that [her] Due Process Rights were violated when
the contested hearing on the removal of the minor children
was continued over [her] objection.” Reply brief for appellant
at 7.
In support of her argument that her due process rights were
violated, Amie cites to In re Interest of R.G., 238 Neb. 405,
423, 470 N.W.2d 780, 792 (1991) (concluding ex parte tem-
porary detention order was nonfinal and thus not appealable,
but that later detention order was final, appealable order; then
finding that mother’s due process rights were not violated by
14-day delay between entry of ex parte order and detention
order when she was given opportunity to be heard at deten-
tion hearing and was allowed to visit her children in interim;
cautioning however that “the 14 days elapsing between the
entry of the ex parte order and the hearing poise the proce-
dures employed in [that] case on the brink of unreasonable-
ness”), disapproved on other grounds, O’Connor v. Kaufman,
255 Neb. 120, 582 N.W.2d 350 (1998). She also cites to In re
Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d
442 (2004) (Supreme Court conducted de novo review of
entire record because plain error permeated entire proceedings
leading to termination of parental rights; deprivations of due
process commenced at initial stages of proceedings, beginning
with failure to hold detention hearing, and continued through
adjudication, disposition, and review hearings). However, the
GAL refers us to an unpublished case, In re Interest of
Don’Kaveon S. et al., No. A-14-019, 2014 WL 2581437 (Neb.
App. June 10, 2014) (selected for posting to court website),
wherein this court concluded that a mother’s due process rights
were not violated when 8 months elapsed between entry of
the ex parte order for immediate custody and the conclusion
of the detention hearing and subsequent order and that the
initial delay was at the mother’s request, she joined in one
other request for a continuance, and several hearings were held
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IN RE INTEREST OF B.B. ET AL.
Cite as 29 Neb. App. 1and then continued because additional time was necessary to
receive evidence. But see In re Interest of Carmelo G., 296
Neb. 805, 896 N.W.2d 902 (2017) (mother’s procedural due
process rights violated by unreasonable delay of more than 8
months between issuance of ex parte order for immediate tem-
porary custody and that of protective custody order—one hear-
ing continued for judge recusal and several hearings continued
for insufficient time; Supreme Court vacated protective cus-
tody order and remanded cause for further proceedings).
However, the present case is distinguishable from the cases
cited by the parties, because in those cases the parties were
appealing from a final detention order following a hearing—
with the exception of In re Interest of Mainor T. & Estela T.,
supra, which addressed the ex parte order and detention issue
in an overall plain error review of the termination of parental
rights appeal.
The procedural posture of the present case is much differ-
ent. In this case, the emergency order of August 29, 2019, was
vacated—orally at the hearing on November 21 and in writing
in the November 25 order. Thus, the issue of any delay of the
contested placement hearing on October 8 is now moot.
(ii) Out-of-Home Placement
After Review Hearing
After the juvenile court stated that it was vacating the order
dated August 29, 2019, it proceeded with the dispositional
review hearing (related to April 29 amended petition and adju-
dication and to June 20 order of disposition). And as noted by
the juvenile court, placement matters can always be taken up
during a review hearing. See Neb. Rev. Stat. § 43-284 (Reissue
2016) (court may enter dispositional order removing juvenile
from his or her home upon written determination that continu-
ation in home would be contrary to health, safety, or welfare
of such juvenile and that reasonable efforts to preserve and
reunify family have been made if required). It was under the
umbrella of the November 21 review hearing that the juvenile
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Cite as 29 Neb. App. 1court ultimately determined that reasonable efforts had been
made, but that N.B. and the eight youngest children should be
placed in out-of-home placements “as returning them to the
home would be contrary to their health, safety, and welfare
due to their parents’ need to engage in Court-ordered services
designed to ensure their safety, specifically the implementa-
tion and utilization of intensive in-home services and safety
plans.” However, the court ordered that B.B. and Q.B. should
be placed in Amie’s home as there were “no barriers or
safety concerns” as to such placement. Other than the sub-
ject matter jurisdiction issue previously addressed, Amie does
not specifically challenge the portion of the juvenile court’s
November 25 order placing the youngest eight children in
out-of-home placements.
(c) Adoption Subsidy
[7] Amie argues, but does not specifically assign, that the
continuation of the October 8, 2019, hearing deprived her
of “the financial interest in the adoption subsidy which was
removed without notice.” Brief for appellant at 32. To be con-
sidered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the
party asserting the error. In re Interest of Nicole M., 287 Neb.
685, 844 N.W.2d 65 (2014). Because Amie did not specifi-
cally assign error to the adoption subsidy issue, it will not be
addressed on appeal.
3. Sibling Visitation
Amie argues that the sibling visitation order between N.B.
and B.B. and Q.B. was against B.B.’s and Q.B.’s best interests.
We disagree.
Pursuant to Neb. Rev. Stat. § 43-1311.02(4) (Cum. Supp.
2018), parties to the case, including a child’s sibling, may file a
motion for joint-sibling placement, sibling visitation, or ongo-
ing interaction between siblings. N.B. filed a motion to have
sibling visitation with B.B. and Q.B—all three children, as well
as Amie, were under the jurisdiction of the juvenile court.
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Cite as 29 Neb. App. 1At the hearing on November 21, 2019, Amie testified that
she wanted to ensure all of the children’s safety and make sure
that B.B. and Q.B. have the “tools necessary” for sibling visits.
A November 20, 2019, letter from Lawrence Gardiner was
received into evidence. Gardiner provided individual therapy
for B.B. and Q.B., as well as family therapy. In his letter,
Gardiner stated:
As it pertains to my recommendation on the boys begin-
ning any visits with [N.B.], I will need to be able to
speak with [N.B.’s] therapist in order to make my deter-
mination. Because of allegations by DHHS of predatory
behavior from [Q.B.], [N.B.], and [B.B.], I hesitate to
consent to their visitation without further consultation
with the therapist treating [N.B.]
However, Henderson testified that DHHS was recommending a
new individual therapist for B.B. and Q.B. because she had not
had great communication with Gardiner; she also confirmed
that Gardiner had been working with the family (including
Amie) for more than a year and that it was not always clear
to Henderson who Gardiner’s clients actually were. The GAL
for B.B. and Q.B. also noted concerns about Gardiner. In her
November 21 report, the GAL stated:
I feel that the current therapist for the children is not
meeting their needs. I do not believe he has had a session
with the children since their removal. He has not been
forth coming with information when I have requested it.
I believe these children need to have a therapist that will
meet with them.
Contrary to Gardiner’s “hesitation” and Amie’s concerns
above, N.B.’s therapist “[did] not have any concerns with
[N.B.] visiting with [B.B. and Q.B.] at this time,” as stated
in an October 2019 letter that was received into evidence.
And N.B.’s therapist, who was trained to work with youth
that have sexually harmed, had been working with N.B.
for 21⁄2 months, during which time N.B. attended individual
sessions at least twice per week and participated in group
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Cite as 29 Neb. App. 1sessions at least five times per week. Furthermore, accord-
ing to Henderson’s testimony, DHHS has no concerns about
supervised visits between N.B. and B.B. and Q.B., and DHHS
is in support of such visits. And according to Amie’s own
testimony, B.B. and Q.B. indicated they want to have contact
with N.B.
The juvenile court ordered that N.B. should have visitation
with B.B. and Q.B. provided that the visitation (1) is super-
vised by a professional visitation agency; (2) equals or exceeds
3 hours per week; (3) includes instructions to the professional
visitation company worker(s) requiring them to monitor dis-
cussion among the brothers and prevent discussion of the case
and/or any related juvenile law violation investigation(s); and
(4) is arranged by DHHS, including transportation to and from
the visits and identifying the location of the visits.
Although Amie argues that therapeutic visitation should have
been ordered, we find that the supervised visits, as ordered by
the juvenile court, did take into account the best interests of
B.B. and Q.B., especially when considering the juvenile court’s
amended order also provided that B.B. and Q.B. were to par-
ticipate in individual therapy as arranged by DHHS and that
the therapists were to be qualified to provide trauma therapy
and therapy for child victims of sexual assault.
VI. CONCLUSION
For the reasons set for above, we affirm the November 25,
2019, amended order of the juvenile court.
Affirmed.