In re Interest of Darryn C. , 295 Neb. 358 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/16/2016 09:07 AM CST
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IN RE INTEREST OF DARRYN C.
Cite as 295 Neb. 358In re I nterest of
Darryn C., a child
18 years of age.
under
State of Nebraska, appellee, v. Sarah J. and
Nathanial C., appellees, and Sharon J.,
intervenor-appellant.
___ N.W.2d ___
Filed December 16, 2016. No. S-15-1159.
1. Jurisdiction: Appeal and Error. 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.
2. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken.
3. Juvenile Courts: Final Orders: Appeal and Error. Juvenile court
proceedings are special proceedings under Neb. Rev. Stat. § 25-1902(Reissue 2016), and an order in a juvenile special proceeding is final and
appealable if it affects a substantial right.
4. Final Orders: Appeal and Error. A substantial right is affected if the
order affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to an appellant prior to the order
from which an appeal is taken.
5. Juvenile Courts: Final Orders: Time. Whether a substantial right has
been affected by an order in juvenile court litigation is dependent upon
both the object of the order and the length of time over which the rela-
tionship with the juvenile may reasonably be expected to be disturbed.
Appeal from the Separate Juvenile Court of Douglas County:
Christopher K elly, Judge. Appeal dismissed.
Jeffrey A. Wagner and Ryan P. Watson, of Schirber &
Wagner, L.L.P., for appellant.
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IN RE INTEREST OF DARRYN C.
Cite as 295 Neb. 358Donald W. Kleine, Douglas County Attorney, and Amy
Schuchman for appellee State of Nebraska.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
K elch, J.
I. NATURE OF CASE
Sharon J., the paternal grandmother of Darryn C., appeals
from the juvenile court’s December 2, 2015, order, which
overruled her motion for custody of Darryn and further ordered
that home studies be conducted on her two homes.
II. FACTS
On November 12, 2013, the separate juvenile court of
Douglas County determined that it had jurisdiction over Darryn
pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013), which
grants juvenile courts jurisdiction over any juvenile who is
lacking proper parental care by reason of the faults or habits
of his or her parent. The court made this determination based
on the admissions of Darryn’s biological parents, Sarah J. and
Nathanial C. At the adjudication hearing, the mother admitted
that she placed Darryn at risk for harm due to her “use of alco-
hol and/or controlled substances” and the father admitted that
he had placed Darryn at risk for harm by engaging in domestic
violence with the mother.
At the time of the adjudication hearing, Darryn had already
been removed from his home in Omaha, Nebraska, and was in
the custody of the Department of Health and Human Services
(DHHS). One month prior to the adjudication hearing, when
Darryn was placed in foster care, Sharon, Darryn’s pater-
nal grandmother, helped place Darryn with her sister Judi
L., who lived near Darryn’s parents in Omaha. At that time,
Sharon lived in Clarksville, Iowa, which was a 41⁄2-hour drive
from Omaha.
In the juvenile court’s November 12, 2013 order, the court
ordered that Darryn remain in the care of DHHS. Among other
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IN RE INTEREST OF DARRYN C.
Cite as 295 Neb. 358things, the court ordered the parents to undergo pretreatment
assessments for chemical dependency and submit to random
drug and alcohol testing. The parents were allowed reasonable
rights of supervised visitation.
On December 3, 2013, Sharon filed a complaint to intervene
and requested that Darryn be placed with her. On January 15,
2014, the juvenile court allowed her to intervene, but overruled
her request for placement. It found that at the time of the order,
the permanency objective for Darryn was reunification and that
it was in the best interests of the child to remain in his cur-
rent placement.
On January 12, 2015, the juvenile court issued an order
changing the permanency objective from reunification to reuni-
fication concurrent with adoption. The order also mandated
Darryn to undergo a psychological evaluation and participate
in individual therapy.
At a review hearing on July 1, 2015, both Darryn’s case
manager and Darryn’s guardian ad litem (GAL) expressed
concerns related to Darryn’s interactions with his mother,
father, and Sharon. Darryn’s case manager reported that
Darryn had said “concerning things” to his therapist. The
case manager testified that although the parents were not to
be visiting Darryn together, Darryn had disclosed that when
he visited his mother, his father would be present. The case
manager also said that although Darryn’s parents were not to
have unsupervised contact with Darryn, Darryn had disclosed
that when he visited Sharon, she would transport him to
and leave him with one of his parents. When confronted by
the case manager, the mother, the father, and Sharon denied
the allegations.
The GAL also expressed concern over Darryn’s obsession
with superheroes and violent play, which his therapist had
noted was “above that of a typical six-year-old.” The GAL’s
June 25, 2015, report reflects that the therapist had expressed
concerns about Darryn’s behaviors, “including overly violent
play as well as talking to/pretend play with superheroes.”
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IN RE INTEREST OF DARRYN C.
Cite as 295 Neb. 358According to the GAL’s report, Darryn’s therapist “stated that
Darryn’s aggression is ‘off the charts’, and that when Darryn
engages in superhero role play, he uses different voices such
that ‘you would think someone else is there.’” The therapist
did not testify at the review hearing.
The GAL also told the court that neither Darryn’s parents nor
Sharon seemed to be taking the superhero obsession seriously.
She stated that “on every single visit with his parent [Darryn]
ends up watching a superhero video.” She also claimed that
Sharon had taken Darryn to see the new “Avengers” superhero
movie. Sharon’s attorney suggested that this latter claim was
false and that Sharon had not been advised of the superhero
issue until the week prior. Sharon requested an evidentiary
hearing on the matter.
Based on the concerns expressed by Darryn’s case manager
and GAL, the court ordered that all visitations were to be
supervised until, at least, the next hearing, which was sched-
uled to take place the next month. At that hearing, the juvenile
court reinstated Sharon’s reasonable rights of unsupervised
visits with Darryn.
Toward the end of the July 1, 2015, review hearing, the
juvenile court reminded the State that the county attorney was
required to file a motion to terminate parental rights where a
child has been in an out-of-home placement for 15 of the previ-
ous 22 months and that this case was “six months beyond that
point.” On August 24, the State moved to terminate the paren-
tal rights of both parents.
On November 24, 2015, Sharon filed a motion for custody
after the mother and father had relinquished their parental
rights to her. She also filed a motion for continued visitation.
The same day, Randall J., Sharon’s husband, filed a complaint
to intervene. Darryn’s mother and father did not resist Sharon’s
motion for custody; however, the State, Darryn’s GAL, and
DHHS did. The matter was set for December 1, the same day
as the hearing on the termination of parental rights.
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IN RE INTEREST OF DARRYN C.
Cite as 295 Neb. 3581. Hearing on Motion
for Custody
At the hearing on Sharon’s motion for custody, Sharon
offered voluntary relinquishments signed by both parents, con-
veying to Sharon and Randall “all right to and custody of and
power and control over [Darryn].” No objection was made, and
the relinquishments were received by the court. As for wit-
nesses, Sharon, Randall, and Darryn’s therapist were all called
to testify.
(a) Sharon’s Testimony
Sharon testified that when she had helped place Darryn
with her sister Judi in October 2013, the understanding
was that Darryn and his parents would reunite, and that if
reunification was not possible, Sharon would step in and
raise Darryn. She explained that she did not initially request
that Darryn be placed with her, because she had hoped that
Darryn would reunite with his parents and she lived 41⁄2 hours
from Darryn’s parents, which would have made reunifica-
tion difficult.
After Darryn was placed with Judi, Sharon visited Darryn
every 2 to 3 weeks. Sharon testified that she would have
Darryn for overnight visits over the weekend until June 2015,
when her visitation rights were changed to supervised. After
September, she was allowed unsupervised visitation again.
In October 2015, after it became apparent that reunification
of Darryn with his parents was no longer possible, Sharon
moved to Omaha to a two-bedroom apartment 3 miles from
Darryn’s school. She then requested that Darryn be placed
in her custody. Sharon testified that she and her husband,
Randall, were ready, willing, and able to have Darryn placed in
their home as a placement or to assume custody.
Although Sharon had selected Judi for placement, Sharon
expressed concerns that if Darryn were to remain with Judi,
Darryn would be prevented from having a relationship with
his other family members. Sharon testified that Judi does not
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IN RE INTEREST OF DARRYN C.
Cite as 295 Neb. 358have ties within the family. Sharon explained that until the last
few weeks, she and Judi had not had any communication for
the last 2 years. Sharon testified that she and Judi have been
participating in therapy to attempt to fix the relationship, but
at the time of the hearing on her motion, the relationship had
not been healed.
Sharon also expressed concerns about Judi’s health. She
testified that Judi has had back surgeries, with resultant limited
mobility, and diabetes. Sharon testified, “[S]he’s pretty much
90 percent dependent physically on her husband to get around.”
(b) Randall’s Testimony
Although Sharon had moved to Omaha in October 2015,
Randall continued to reside in Iowa at the time of the hearing
on Sharon’s motion for custody. Randall testified that he sup-
ported Sharon’s endeavors and that he wanted to adopt Darryn
as his own child. Randall testified that he believed it was in
Darryn’s best interests that Darryn be placed with Sharon and
Randall. Randall explained that if they were granted custody,
he and Sharon would resume residence together and proceed
with adoption.
(c) Therapist’s Testimony
Darryn’s therapist testified that she has worked with Darryn
since December 2013 and that in the 9 months prior to the
hearing, she had started to discuss placement with Darryn. She
testified that Darryn, who was 7 years old at the time of the
discussion, told her that he would like to remain in his current
placement with Judi and her husband. The therapist admitted
that she did not fully understand Darryn’s basis for wanting to
live with Judi and that his decision may not have been fully
informed, but she believed that remaining in his current place-
ment was in Darryn’s best interests, because he had been there
for over 2 years. She testified that if Darryn became available
for adoption, Judi and her husband had stated that they would
adopt Darryn. Neither Judi nor her husband appeared or testi-
fied at the hearing.
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IN RE INTEREST OF DARRYN C.
Cite as 295 Neb. 358On cross-examination, the therapist stated that she had no
indication that Sharon and Randall were unfit parents and that
she had no reason to believe that Darryn had a negative rela-
tionship with Sharon. She also stated that she did not know
what effect placement with Sharon and Randall would have
on Darryn.
After some questioning from the court, the therapist testi-
fied that she had facilitated the therapy sessions between
Sharon and Judi. When asked if she was able to identify
issues between the two, the therapist explained that the biggest
barrier in their relationship seemed to be a communication
breakdown.
The court also asked the therapist about her understand-
ing as to Judi’s propensity to allow Darryn to have contact
with extended family members. The therapist told the court
that Judi had stated she would allow it and that over the past
Thanksgiving holiday, Darryn was allowed to spend quite a
bit of time with Sharon and his extended family. On cross-­
examination, however, the therapist admitted that up until
recently, Judi had not had any contact with her extended fam-
ily, and that the Thanksgiving visit was not something that Judi
had volunteered, but was something that had to be facilitated
through Sharon and Judi’s counseling sessions. The therapist
testified that it was in Darryn’s best interests to maintain con-
tact with his extended family.
2. Disposition of Sharon’s
Motion for Custody
On December 2, 2015, the juvenile court issued an order
overruling Sharon’s motion for custody. The court also ordered
that DHHS conduct home studies of Sharon and Randall’s two
homes and that DHHS obtain Judi’s medical records. Sharon
appeals from the December 2 order.
As for the proceedings on the State’s motions to termi-
nate parental rights and Randall’s motion to intervene, those
proceedings were continued to January 8, 2016. The record
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IN RE INTEREST OF DARRYN C.
Cite as 295 Neb. 358does not reflect the court’s disposition of the State’s and
Randall’s motions.
III. ASSIGNMENTS OF ERROR
Sharon assigns that the juvenile court erred in (1) failing to
find that the relinquishment of parental rights to Sharon pro-
vided her priority under the parental preference doctrine and
(2) in finding that it was not in the best interests of Darryn to
be placed in Sharon’s custody.
IV. STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings.1
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 inde-
pendent of the lower court’s decision.2
V. ANALYSIS
[1] 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 This case presents two
separate jurisdictional issues: (1) whether the order appealed
from is a final, appealable order and (2) whether Sharon
has standing to appeal. Because we determine that the order
appealed from is not a final order, we do not reach the stand-
ing issue. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and con-
troversy before it.4
1
In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d 413(2015).
2
Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009).
3
Id.4
In re Interest of Jackson E., 293 Neb. 84, 875 N.W.2d 863 (2016).
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IN RE INTEREST OF DARRYN C.
Cite as 295 Neb. 358[2-5] For an appellate court to acquire jurisdiction of an
appeal, there must be a final order entered by the court from
which the appeal is taken.5 Juvenile court proceedings are
special proceedings under Neb. Rev. Stat. § 25-1902 (Reissue
2016), and an order in a juvenile special proceeding is final
and appealable if it affects a substantial right.6 A substantial
right is affected if the order affects the subject matter of the
litigation, such as diminishing a claim or defense that was
available to an appellant prior to the order from which an
appeal is taken.7 Whether a substantial right has been affected
by an order in juvenile court litigation is dependent upon both
the object of the order and the length of time over which the
relationship with the juvenile may reasonably be expected to
be disturbed.8
The issue in this case is analogous to the issue of whether
an order changing a permanency objective from family reuni-
fication to another objective is a final, appealable order.
This court has recently addressed that issue in In re Interest
of LeVanta S.9 In In re Interest of LeVanta S., we explained
that at least in the context of children adjudicated under
§ 43-292(3)(a), “an order is not a final, appealable order
unless the parent’s ability to achieve rehabilitation and fam-
ily reunification has been clearly eliminated.”10 Similarly, we
think the proper inquiry in this case is whether the court’s
order overruling Sharon’s motion for custody clearly elimi-
nated Sharon’s ability to gain custody of Darryn. As with
cases involving the changing of a permanency objective, this
5
In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.3d 415 (2015).
6
In re Interest of Mya C. & Sunday C., 286 Neb. 1008, 840 N.W.2d 493(2013).
7
Steven S. v. Mary S., supra note 2.
8
See id.9
In re Interest of LeVanta S., ante p. 151, ___ N.W.2d ___ (2016).
10
Id. at 162, ___ N.W.2d at ___.
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IN RE INTEREST OF DARRYN C.
Cite as 295 Neb. 358inquiry is very fact specific and “can easily lead to different
results from case to case.”11
Because a court’s written order does not always clearly set
forth the order’s impact on the parties’ rights, an appellate court
may need to interpret an order to determine whether the order
affects a party’s substantial right.12 Such was the case in In re
Interest of Tayla R.,13 which involved a written order changing
a permanency plan from reunification to adoption. Although
the court’s order did not say whether the mother would be able
to reunify with her children, it directed the mother to continue
doing such things as weekly individual therapy sessions, fam-
ily therapy sessions, and supervised visitation with the chil-
dren. The Nebraska Court of Appeals read the court’s order as
“implicitly provid[ing] [the mother] with an opportunity for
reunification by complying with the terms of the rehabilita-
tion plan[,] which terms have not changed from the previous
order.”14 Because the mother did not lose the ability to reunify
with her children, the Court of Appeals determined that the
order did not affect a substantial right and was therefore not a
final, appealable order. As we noted in In re Interest of Octavio
B. et al.,15 this analysis is consistent with our precedent in In re
Interest of Sarah K.16
Although at first glance the order here appears to affect
Sharon’s right to custody, upon further inspection, it becomes
clear that the order does not diminish Sharon’s ability to obtain
placement or custody. Instead, the order mandates that DHHS
conduct a home study of Sharon’s homes and sets a “Home
11
In re Interest of Octavio B. et al., supra note 5, 290 Neb. at 596, 861
N.W.2d at 422.
12
See, id.; In re Interest of Tayla R., 17 Neb. App. 595, 767 N.W.2d 127(2009).
13
In re Interest of Tayla R., supra note 12.
14
Id. at 605, 767 N.W.2d at 135.
15
In re Interest of Octavio B. et al., supra note 5.
16
In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999).
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Cite as 295 Neb. 358Study Check” hearing to occur approximately 1 month later,
which indicates that the court is still considering Sharon 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 following statements from the bench:
The Motion for Custody is overruled. I am, however,
going to order a couple of things to occur: [DHHS] and
[Nebraska Families Collaborative] shall conduct a home
study on the home of Sharon and Randall . . . . [DHHS]
and [Nebraska Families Collaborative] shall obtain med­
ical records of Judi . . . , based on what I’ve heard
here today.
It’s simply not in the child’s best interest to uproot him,
certainly at this point in time and maybe not ever. I don’t
know. Okay? But as we sit here today, parental rights
are intact.
These comments clearly indicate that the court has not com-
pletely disposed of the custody issue and that Sharon may still
gain custody.
We therefore conclude that the December 2, 2015, order
does not disadvantage Sharon or change or affect a substantial
right of Sharon and therefore is not a final, appealable order.
Because the order on appeal is not a final, appealable order, we
lack jurisdiction to address Sharon’s assignments of error, and
we dismiss her appeal.
VI. CONCLUSION
For the foregoing reasons, we conclude that the juvenile
court’s order was not final and appealable. When an appellate
court is without jurisdiction to act, the appeal must be dis-
missed. We therefore dismiss this appeal for lack of jurisdiction.
A ppeal dismissed.