In re Interest of Diamond J. ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF DIAMOND J.
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 DIAMOND J., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
CRYSTAL S., APPELLANT.
Filed July 20, 2021. No. A-21-085.
Appeal from the Separate Juvenile Court of Douglas County: MATTHEW R. KAHLER,
Judge. Appeal dismissed.
Thomas C. Riley, Douglas County Public Defender, and Claudia L. McKnight for
appellant.
Donald W. Kleine, Douglas County Attorney, and David Ceraso for appellee.
PIRTLE, Chief Judge, and MOORE and WELCH, Judges.
PIRTLE, Chief Judge.
INTRODUCTION
Crystal S. appeals from the order of the Separate Juvenile Court of Douglas County which
adjudicated her daughter, Diamond J., to be a child within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016), and which granted the Department of Health and Human Services
(the Department) continued temporary custody of Diamond and provided that placement of
Diamond be outside of Crystal’s home. Because the award of custody to the Department was
temporary in nature, that portion of the order was not final and appealable. We therefore dismiss
the appeal for lack of jurisdiction.
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BACKGROUND
Diamond was born in February 2003 in Douglas County, Nebraska. Diamond’s father is
not involved in this appeal; therefore, we do not address the father further except to provide
context.
On October 7, 2020, the State filed a petition alleging that Diamond was a child within the
meaning of § 43-247(3)(a) through the faults or habits of her mother, Crystal. The petition alleged
that Diamond had endured periods of homelessness since September 2019; that Crystal had failed
to report Diamond as missing when Diamond’s whereabouts were unknown; and that Crystal had
contacted law enforcement twice to request that Diamond be removed from her home. The petition
further alleged that Crystal had failed to provide for Diamond’s daily needs, including food,
clothing, and education; that Crystal had failed to provide appropriate care, support, supervision,
and/or safety for Diamond; that Crystal had failed to provide safe, stable, and/or appropriate
housing for Diamond; and that Crystal’s actions put Diamond at a risk for harm.
Also on October 7, the State filed an ex parte motion requesting that the juvenile court
place Diamond in the immediate custody of the Department and outside Crystal’s home. In a
written order, the juvenile court found that reasonable efforts had been made to prevent Diamond’s
removal and granted the State’s ex parte motion, placing Diamond in the temporary custody of the
Department in a foster home.
Crystal failed to appear at a first appearance and protective custody hearing on October 19
and on December 10, 2020. An adjudication hearing on the State’s petition was held on January
5, 2021, with Crystal present and represented by counsel. The juvenile court read the petition aloud
in open court, and Crystal entered a denial as to the contents.
The State first presented the testimony of Diamond, who was 17 years old at the time of
the hearing. Diamond testified that prior to being placed in the custody of the Department, she had
lived “on the streets” for approximately a year. She testified that before becoming homeless, she
had lived with her father; however, the father had “kicked [Diamond] out” in late 2019 because
she refused to comply with his order to stop attending psychotherapy. After leaving her father’s
home, Diamond stayed anywhere “from public places to abandoned houses to friends’ to family
members’, anywhere that [she] could.” She testified that she was not in contact with Crystal during
this period.
Diamond testified that in September 2020, Crystal reached out to her via Facebook.
Diamond informed Crystal that she was pregnant, but neither Crystal nor Diamond attempted to
arrange prenatal medical care. Diamond stayed at Crystal’s house for “a few weeks on and off”
during the month of September, and she estimated that she “stayed there maybe six
[nonconsecutive] days in total throughout the whole time.” Diamond testified that she and Crystal
were involved in multiple altercations during the weeks she stayed with her mother. She testified
that Crystal would remove all the food from the house and turn off the power because “she just
wanted [Diamond] gone.” Diamond testified that although she initially refused to leave Crystal’s
home for fear of being reported as a runaway, she was ultimately “kicked out” of Crystal’s house
on four separate occasions.
Toward the end of September 2020, Crystal contacted the police and asked them to remove
Diamond from her home; however, the police refused. Diamond testified that Crystal then called
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the Department, and a social worker arrived to take Diamond to her father’s home. However,
Diamond’s placement with her father only lasted for a day, as the father informed Diamond that
she “needed to be out of his house by the time he got back [from work] or he would make [her]
leave himself.” Diamond testified that she then began staying with an individual who attempted to
recruit her for work as a prostitute.
During cross-examination by the guardian ad litem, Diamond testified that while she was
homeless, Crystal never offered her money or a place to stay. She explained that the “on and off”
living situation with Crystal in September 2020 deteriorated because Crystal informed Diamond
that “if you don’t have anything to contribute, then you have to go.” She testified that Crystal did
not provide her with any clothing or money while she stayed at Crystal’s house. Diamond testified
that Crystal never made arrangements for her to live somewhere else, and she asserted that she had
been “mostly providing for [her]self” since the age of 16.
On cross-examination by Crystal’s counsel, Diamond admitted that in early September
2020, Crystal drove her to the emergency room on account of pregnancy-related “bleeding and
cramping.” She testified that following this incident, she stayed at Crystal’s house for 3
consecutive days before Crystal “kicked [her] out” because Diamond refused to sign the proceeds
of her grandmother’s insurance policy over to Crystal. Diamond further testified that around the
middle of September, the police returned her to Crystal’s house, but that Crystal kicked her out
three subsequent times. Diamond admitted that during this period, she and Crystal engaged in a
physical altercation, but she denied laying her hands on Crystal or any other family members
except for the purpose of self-defense.
The State next presented the testimony of Janet Watson, a child and family services
specialist with the Department. Watson testified that the Department “received an intake with
concerns for physical neglect of Diamond by her father . . . on August 25 of 2020.” Watson
attempted to locate Diamond, who had left her father’s house by that time. On September 4,
Watson made contact with Diamond and Crystal at Crystal’s residence. Watson testified that after
speaking to both Diamond and Crystal, she “put a safety plan in place to have the family working
with intensive in-home services through Release Ministries.” The safety plan also provided that
Crystal should report Diamond as a runaway if she left the house without permission.
Watson testified that during September 2020, she received information that Diamond had
left Crystal’s home on three separate occasions. She testified that Diamond said that Crystal had
kicked her out, while Crystal claimed Diamond ran away. According to the Omaha Police
Department, Crystal did not file a missing persons report at any time.
Watson testified that on September 23, Crystal called to request that Diamond be removed
from her residence due to an altercation. Watson “explained to Crystal that we were not at a point
where an affidavit would be written and if she needed Diamond removed from the home, she
would need to contact law enforcement.” Later that day, Watson went to Crystal’s residence, but
no one answered the door.
The following day, September 24, Watson spoke with Diamond on the porch of Crystal’s
home. Watson testified that Diamond made her aware of an issue involving benefits Diamond was
to receive from a deceased grandmother, which Crystal wanted Diamond to sign over to her name.
Watson testified that she was “shown a video of an altercation between Crystal and Diamond
during which Crystal was yelling.” While Watson and Diamond were speaking, Crystal exited the
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residence, locking all the doors behind her. Crystal told Watson that she “did not want Diamond
living with her anymore” because “of the altercations that were occurring.” Crystal then drove
away, and Diamond told Watson that she had no way to get back inside the house. Watson testified
that law enforcement then arrived at Crystal’s home and reported that Crystal had requested that
Watson be removed from the premises. Subsequently, Watson spoke with Diamond’s father, who
gave permission for Diamond to be brought to his residence; however, that placement proved
unsuccessful.
Watson testified that throughout the time Diamond was homeless, neither of her parents
had provided any kind of assistance. She testified that although Diamond had attempted to
independently arrange for her own prenatal care, she had been refused treatment because she did
not have parental consent. She further testified that Crystal never reached out to her about
Diamond’s whereabouts, nor did Crystal ever articulate a plan for Diamond to live somewhere
else.
On cross-examination, Watson testified that prior to September 2020, Diamond had been
staying with a former mentor. However, the mentor reported to Watson “that there was [an]
altercation between herself and Diamond that caused [the mentor] to say that Diamond could not
live there anymore.” Watson admitted that Crystal had told her that Diamond stole her sister’s
tablet device, but Watson testified that she was unaware if a police report was ever made.
Following Watson’s testimony, the State rested its presentation of evidence.
Crystal called her therapist, Mildred Tucker, to testify. Tucker testified that she was an
addiction counselor and was completing an internship as a mental health therapist. Tucker first
began treating Crystal in May 2020. At the time of the hearing, Tucker met with Crystal twice a
week. Tucker testified that Crystal had spoken about Diamond’s “disruptive behavior,” which
included “disrespect, profanity, abuse towards [Crystal].” She further testified that Crystal had
described “fights” where Diamond would hit Crystal.
On cross-examination, Tucker admitted that she did not know how frequently Crystal and
Diamond had argued. She agreed that she had never met Diamond and that she did not have access
to any collateral sources that corroborated Crystal’s statements. Tucker testified that Crystal had
been diagnosed with bipolar disorder, a personality disorder, major depression disorder, and
anxiety. She further testified that her counseling agency was reevaluating Crystal’s diagnoses
because “she may need a higher level of therapeutic intervention.”
Crystal testified that in August 2020, Diamond contacted her and said that she was pregnant
and needed Crystal’s support. At that time, Crystal and Diamond had not spoken to each other
since September 2019, and Diamond’s father had had sole legal custody of Diamond for several
years. Crystal testified that Diamond “had been living in abandoned houses and stuff” and that she
“looked sick, like she hadn’t been eating, taking care of herself, or anything.” She testified that
Diamond stayed at her residence for about a week before leaving on her own.
Crystal testified that in early September, the police returned Diamond to her. She testified
that she was willing to have Diamond live with her; however, Diamond told the police “I’m not
staying here” and departed 30 to 45 minutes later. Diamond returned to Crystal’s house a few days
later. Crystal testified that Diamond then began “tormenting” her. She testified that Diamond
would wake her up in the middle of the night, would turn her bedroom lights on and off, played
loud audio, and physically struck her. Crystal communicated with police about having Diamond
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removed from her home, but the police stated there was nothing they could do. She testified that
she called Watson and said that “if [Diamond] is going to keep being violent toward me, I don’t
want her here.”
Crystal testified that on September 24, Watson visited her in order to follow up on their
phone conversation. She testified that she asked Watson to leave because she was upset that the
police had not removed Diamond and because she had a job interview to attend. She did not permit
Watson to come inside the home, so instead Watson and Diamond spoke on the porch. Crystal
testified that she went to her interview and that she did not “know what happened after all that.”
On cross-examination, Crystal denied that she had ever filled out a transfer of benefits form
in order to receive Diamond’s benefits from her grandmother. She testified that she did not have
legal custody of Diamond because she “got into trouble” and was sentenced to a prison term.
Crystal asserted that she had been attempting to regain custody of Diamond since 2004.
Following Crystal’s testimony, the parties submitted the case to the juvenile court.
The court ruled from the bench, finding by a preponderance of the evidence that the State
had proved that Diamond was a child within the meaning of § 43-247(3)(a). The court found that
Diamond had endured periods of homelessness, that Crystal had failed to provide for Diamond’s
daily needs, that Crystal had failed to provide Diamond with appropriate care and housing, and
that Diamond was at a risk for harm as a result of Crystal’s actions. The court ordered the parties
to return for a hearing in 30 days so that Diamond could begin treatment with a therapist who
would be in a position to inform the court as to “the best case for this family moving forward.”
The disposition hearing was scheduled for February 10, 2021.
In an order issued the same day, the juvenile court found that Diamond was a juvenile
within the meaning of § 43-247(3)(a) due to the faults or habits of her mother, Crystal; that it
would be contrary to Diamond’s health and safety to be returned to Crystal’s home; and that it was
in Diamond’s best interests to remain in the temporary care of the Department until further order
of the court. The court additionally ordered the Department to complete a predisposition
evaluation.
This appeal followed.
ASSIGNMENT OF ERROR
Crystal assigns that the juvenile court erred in granting the Department continued
temporary custody of Diamond.
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 Leyton C. & Landyn C., 307 Neb.
529, 949 N.W.2d 773 (2020).
Determination of a jurisdictional issue which does not involve a factual dispute is a matter
of law which requires an appellate court to reach its conclusions independent from those of a trial
court. In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021).
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ANALYSIS
Crystal does not assign that the juvenile court erred in adjudicating Diamond under
§ 43-247(3)(a), nor does she advance any arguments related to this issue in her brief. Therefore,
we need not consider whether there was sufficient evidence for the court to find by a preponderance
of the evidence that the allegations in the petition were true. See In re Interest of Prince R., 308
Neb. 415, 426, 954 N.W.2d 294, 302 (2021) (“in order for a juvenile court to assume jurisdiction
of minor children under § 43-247(3)(a), the State must prove the allegations of the petition by a
preponderance of the evidence”). Rather, Crystal’s sole assignment of error is that the juvenile
court erred in ordering continued temporary custody of Diamond by the Department.
We first note that the portion of the January 5, 2021, order which adjudicated Diamond as
a child within the meaning of § 43-247(3)(a) due to the faults or habits of Crystal, was a final,
appealable order. See In re Interest of Keisha G., 21 Neb. App. 472, 840 N.W.2d 562 (2013)
(adjudication and disposition orders are final appealable orders). However, as we stated above,
Crystal challenges only the portions of the order pertaining to custody, and we must therefore
consider whether these custody provisions are likewise 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 Interest of Victor L., 309 Neb. 21, 958 N.W.2d 413 (2021).
Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) authorizes appeals from four types of final
orders: (1) those affecting a substantial right in an action that, in effect, determines the action and
prevents a judgment; (2) those affecting a substantial right made during a special proceedings; (3)
those affecting a substantial right made on a summary application in an action after judgment is
rendered; and (4) those denying a motion for summary judgment when such motion is based on
the assertion of sovereign immunity or the immunity of a government official. In re Interest of
Victor L., supra.
A proceeding before a juvenile court is a special proceeding for appellate purposes. Id.
Therefore, in order to determine whether the January 5, 2021, temporary custody order is a final
order, we must determine whether the order affected a substantial right. The determination of
appealability in this case, as in other juvenile cases, is a fact-intensive inquiry. See In re Interest
of Zachary B., 299 Neb. 187, 907 N.W.2d 311 (2018).
A substantial right is an essential right, not a mere technical right. In re Interest of Kamille
C. & Kamiya C., 302 Neb. 226, 922 N.W.2d 739 (2019). Custody is generally considered an
essential legal right implicating a parent’s fundamental, constitutional right to raise his or her child,
but the duration of a court’s order is also relevant to whether an order affects a substantial right.
Id. It is not enough that the right itself be substantial; the effect of the order on that right must also
be substantial. Id. Whether the effect of an order is substantial depends on whether it affects with
finality the rights of the parties in the subject matter. In re Interest of Zachary B., supra. “Most
fundamentally, an order affects a substantial right when the right would be significantly
undermined or irrevocably lost by postponing appellate review.” Tilson v. Tilson, 299 Neb. 64, 71,
907 N.W.2d 31, 37 (2018).
In juvenile court cases, whether an order affects a substantial right of a parent is dependent
upon both the object of the order and the length of time over which the parent’s relationship with
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the juvenile may be reasonably expected to be disturbed. See In re Interest of Becka P. et al., 296
Neb. 365, 894 N.W.2d 247 (2017). Orders which temporarily suspend a parent’s custody,
visitation, or education rights for a brief period of time do not affect a substantial right and are
therefore not appealable. Id.This case is analogous to In re Interest of Darryn C., 295 Neb. 358, 888 N.W.2d 169(2016), wherein a grandmother filed for custody of a minor child after the child’s parents
relinquished their parental rights. The juvenile court overruled the grandmother’s motion and
ordered that home studies be conducted. The grandmother appealed, but the Nebraska Supreme
Court determined there was not a final, appealable order. The court held that the proper inquiry
was whether the court’s order overruling the grandmother’s motion for custody clearly eliminated
her ability to gain custody of the minor child at some point in the future. The Supreme Court further
stated:
Although at first glance the order here appears to affect [the grandmother’s] right
to custody, upon further inspection, it becomes clear that the order does not diminish [her]
ability to obtain placement or custody. Instead, the order mandates that DHHS conduct a
home study of [her] homes and sets a “Home Study Check” hearing to occur approximately
1 month later, which indicates that the court is still considering [the grandmother] for some
type of placement and that the issue of custody will be disposed of within a reasonable
amount of time. This finding is supported by the [court’s] statements from the bench[.]
Id. at 367-68, 888 N.W.2d at 176. The Supreme Court dismissed the appeal for lack of jurisdiction
because the juvenile court’s order was not a final, appealable order. But cf. In re Interest of Becka
P. et al., supra (order was not temporary and therefore was appealable because neither language
of order nor court’s remarks on record denoted temporary interruption of parental rights).
In the present case, the juvenile court’s January 5, 2021, order stated that “the minor child
shall remain in the temporary care and custody of [the Department] until further order of the court.”
The court further ordered that a predisposition evaluation be conducted by the Department and set
a disposition hearing for February 10, 2021, approximately 30 days later.
In addition, the court commented from the bench that “there’s work to be done” with
respect to the relationship between Crystal and Diamond, but the court did not yet “know what can
be repaired and what can’t be repaired.” The court further asked Diamond if she understood that
“at some point I may order you to [have contact with Crystal],” to which Diamond stated she
understood. Finally, the court stated: “So we come back in a month, and I want to figure out . . . I
want to know from [Diamond’s therapist] what’s the best case for this family moving forward.”
We conclude that both the temporary custody order and the associated comments at the
adjudication hearing make it clear that the juvenile court intended the January 5 order to be
temporary in nature and that it planned to revisit the issue of Diamond’s placement at the February
10 disposition hearing. Because the January 5 order did not completely dispose of the custody
issue and was only temporary in nature, it did not substantially affect Crystal’s right to custody
and/or placement of her daughter, and it was not a final order under § 25-1902(1)(b).
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CONCLUSION
Because the January 5, 2021, order was not final as to custody and placement of the minor
child, we do not have jurisdiction over the issues raised in this appeal. Accordingly, we dismiss
the appeal for lack of jurisdiction.
APPEAL DISMISSED.
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