In re Interest of Zachary B. , 299 Neb. 187 ( 2018 )


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    05/11/2018 01:09 AM CDT
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    IN RE INTEREST OF ZACHARY B.
    Cite as 
    299 Neb. 187
    In   re I nterest of
    Zachary B., a child
    under 18 years of age.
    State of Nebraska, appellee,
    v. Zachary B., appellant.
    ___ N.W.2d ___
    Filed March 2, 2018.    No. S-17-466.
    1.	 Jurisdiction: Appeal and Error. A jurisdictional question which does
    not involve a factual dispute is determined by an appellate court as a
    matter of law.
    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.	 Final Orders: Appeal and Error. Under 
    Neb. Rev. Stat. § 25-1902
    (Reissue 2016), the three types of final orders which may be reviewed
    on appeal are (1) an order which affects a substantial right and which
    determines the action and prevents a judgment, (2) an order affecting
    a substantial right made during a special proceeding, and (3) an order
    affecting a substantial right made on summary application in an action
    after judgment is rendered.
    4.	 Final Orders: Words and Phrases. A substantial right is an essential
    legal right, not a mere technical right.
    5.	 Constitutional Law: Minors. Nebraska law as reflected in 
    Neb. Rev. Stat. § 43-251.01
    (7) (Reissue 2016) recognizes that a juvenile has an
    essential legal right, and therefore a substantial right, to remain in his or
    her home.
    6.	 Final Orders: Appeal and Error. In analyzing whether a substan-
    tial right was affected by a court order, it is not enough that the right
    itself be substantial, the effect of the order on that right must also
    be substantial.
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    IN RE INTEREST OF ZACHARY B.
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    7.	 Final Orders. Whether the effect of an order is substantial depends
    on whether it affects with finality the rights of the parties in the sub-
    ject matter.
    8.	 Final Orders: Minors: Appeal and Error. Orders which temporarily
    suspend a juvenile’s right to stay in the home for a brief period of time
    and do not purport to determine the juvenile’s placement with finality do
    not affect a substantial right and are therefore not appealable.
    Appeal from the Separate Juvenile Court of Lancaster
    County: R eggie L. Ryder, Judge. Appeal dismissed.
    Joe Nigro, Lancaster County Public Defender, and Sarah
    Safarik for appellant.
    Joe Kelly, Lancaster County Attorney, and Margeaux K. Fox
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Zachary B., a juvenile, appeals the order of the separate
    juvenile court of Lancaster County which ordered that he be
    removed from his family home and placed in Boys Town.
    Because the juvenile court’s order was not a final order, we
    dismiss this appeal for lack of jurisdiction.
    STATEMENT OF FACTS
    In March 2016, the juvenile court adjudicated Zachary,
    who was born in April 2000, to be a juvenile as defined by
    
    Neb. Rev. Stat. § 43-247
    (3)(b) (Supp. 2015). Zachary admit-
    ted to the State’s charge that he had been truant from school
    between the dates of August 12 and December 15, 2015. In
    June 2016, Zachary was placed on probation for a period of
    15 months, with placement in the family home. The court
    ordered that Zachary’s probation was subject to certain terms
    and conditions, including, inter alia, that he “[a]ttend school
    regularly . . . without truancy or suspension . . . .”
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    IN RE INTEREST OF ZACHARY B.
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    In January 2017, the State moved to revoke Zachary’s
    probation. The State alleged that he had violated conditions
    of his probation by failing to attend school regularly and by
    failing to cooperate with services arranged by his probation
    officer. Zachary admitted to the violations at a hearing held
    February 24. In an order entered after the hearing, the juvenile
    court found Zachary’s admission to be freely, voluntarily, and
    knowingly made and it found that a factual basis existed for
    his admission; however, the juvenile court deferred “ruling on
    whether or not to revoke [Zachary’s] probation pending the
    completion of an updated predisposition report.” The court
    continued the case to April 12.
    After the hearing on April 12, 2017, the juvenile court
    entered an order which stated that “[d]isposition was con-
    tinued for good cause.” The court found that since the time
    Zachary was placed on probation in June 2016, “numerous
    services have been provided to the family, including in-home
    counseling and tracker services,” but that “[d]espite those
    efforts, [Zachary] has not been attending school, despite his
    family’s belief that he has.” The court found that Zachary
    had missed at least 131 of the 152 scheduled days of the cur-
    rent school year and that when he did not go to school, he
    stayed home. The court also found that the services that had
    been provided had been “unsuccessful due to lack of coop-
    eration by [Zachary] and/or his family” and that no services
    had been identified that would “change the dynamics within
    the home.”
    The court then found that “[a]ll relevant community-based
    services have been utilized and exhausted to assist [Zachary]
    and his family.” The court further found that “[m]aintaining
    [Zachary] in the home is not only contrary to his health, safety,
    and welfare, but it presents a significant risk of harm . . . with
    regards to his education and his future” and that if Zachary
    remained in the home, “he will not attend school and he will
    never graduate high school.” Although the court did not cite
    the statute, it appears that these findings were prompted by
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    IN RE INTEREST OF ZACHARY B.
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    Neb. Rev. Stat. § 43-251.01
     (Reissue 2016), which provides in
    relevant part:
    All placements and commitments of juveniles for eval-
    uations or as temporary or final dispositions are subject to
    the following:
    ....
    (7) A juvenile alleged to be a juvenile as described in
    subdivision (1), (2), (3)(b), or (4) of section 43-247 shall
    not be placed out of his or her home as a dispositional
    order of the court unless:
    (a) All available community-based resources have
    been exhausted to assist the juvenile and his or her fam-
    ily; and
    (b) Maintaining the juvenile in the home presents a sig-
    nificant risk of harm to the juvenile or community.
    In the April 12, 2017, order, in addition to reflecting
    § 43-251.01(7), the court cited 
    Neb. Rev. Stat. § 43-286
    (Reissue 2016) as authorizing the court to “continue the dis-
    position portion of the hearing, from time to time upon such
    terms and conditions as the court may prescribe, and place
    the juvenile in a suitable family home or institution.” The
    court determined that Boys Town was a suitable placement
    for Zachary and that such placement was in his best interests.
    The court stated that under the authority of § 43-286, it was
    “ordering that disposition be continued and that Zachary . . . be
    placed at Boys Town as soon as possible” and that he “follow
    the rules of Boys Town once placement takes place.” The court
    ordered that the hearing on the motion to revoke probation was
    continued to June 22.
    At the April 12, 2017, hearing, the court orally made
    the following comments regarding the effect of the order it
    was entering:
    I’m not entering final disposition today so this is not
    going to be a dispositional Order in that sense. The
    law does allow the Court under 43-286 to continue dis-
    position from time to time under whatever terms and
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    conditions the Court deems to be appropriate based on
    the evidence, and as part of that, allow the Court to
    place youth outside of the home. . . . I’m continuing
    the matter, ordering him to be placed at Boys Town as
    soon as possible, continuing disposition for 60 days. The
    family’s still going to be involved in his life. The fam-
    ily needs to be part of his life and the goal is for him
    then to return home. . . . So I’m continuing the matter,
    ordering Boys Town, ordering Zach to follow the rules
    at Boys Town and we’ll continue the matter for maybe
    60 to 90 days and we’ll address further disposition at the
    next hearing.
    Zachary appeals the April 12, 2017, order.
    ASSIGNMENTS OF ERROR
    Zachary generally claims that the juvenile court erred when
    it ordered him to be removed from his home, and he specifi-
    cally claims that there was insufficient evidence for the juve-
    nile court to find under § 43-251.01(7) that all community-
    based resources had been exhausted and that maintaining him
    in his home presented a significant risk of harm to him or
    the community.
    STANDARD OF REVIEW
    [1] A jurisdictional question which does not involve a fac-
    tual dispute is determined by an appellate court as a matter of
    law. In re Interest of Becka P. et al., 
    296 Neb. 365
    , 
    894 N.W.2d 247
     (2017).
    ANALYSIS
    [2] In a juvenile case, as in any other appeal, before reach-
    ing 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. 
    Id.
     The State argues that the order remov-
    ing Zachary from his home is not a final, appealable order,
    because it was not a final disposition and instead it was a
    temporary placement and did not affect a substantial right. In
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    contrast, Zachary argues that the order is appealable because
    it affected a substantial right and that if he is not allowed to
    appeal the order, he will be denied his right to a meaningful
    review of the order placing him outside his home if such place-
    ment is merely continued in a future disposition. We agree
    with the State.
    [3] 
    Neb. Rev. Stat. § 43-2
    ,106.01(1) (Reissue 2016) gives
    appellate courts jurisdiction to review “[a]ny final order or
    judgment entered by a juvenile court . . . .” Under 
    Neb. Rev. Stat. § 25-1902
     (Reissue 2016), the three types of final orders
    which may be reviewed on appeal are (1) an order which
    affects a substantial right and which determines the action and
    prevents a judgment, (2) an order affecting a substantial right
    made during a special proceeding, and (3) an order affect-
    ing a substantial right made on summary application in an
    action after judgment is rendered. In re Interest of Becka P.
    et al., supra. Because neither the first type nor the third type
    of final orders is applicable in this case, we examine appeal-
    ability under the second type. A proceeding before a juvenile
    court is a “special proceeding” for appellate purposes, see
    id., and therefore, in order to determine whether the April
    12, 2017, 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.
    [4] A substantial right is an essential legal right, not a mere
    technical right. Id. We have recognized that the substantial right
    of a parent in juvenile proceedings is a parent’s fundamental,
    constitutional right to raise his or her child. In re Interest of
    Cassandra B. & Moira B., 
    290 Neb. 619
    , 
    861 N.W.2d 398
    (2015). In this case, however, it is the juvenile himself and not
    a parent who is appealing the placement order.
    We have recognized that as a corollary to a “parent’s right
    to the companionship, care, custody, and management of his
    or her child,” a child has a “reciprocal right to be raised and
    nurtured by a biological or adoptive parent,” and we have
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    stated that “establishment and continuance of the parent-
    child relationship is the most fundamental right a child pos-
    sesses.” In re Guardianship of Benjamin E., 
    289 Neb. 693
    ,
    707, 
    856 N.W.2d 447
    , 457 (2014) (Stephan, J., concurring)
    (citing In re Guardianship of D.J., 
    268 Neb. 239
    , 
    682 N.W.2d 238
     (2004)). However, the record in this case indicates that
    Zachary was not being raised and nurtured by a biological or
    adoptive parent. Instead, Zachary was living with his aunt,
    and for purposes of our review, we determine that this was his
    “home” under § 43-251.01(7). For completeness, we note that
    his legal guardian was his grandmother, with whom he was
    not residing.
    [5] With the legal principles recited above in mind, we
    must consider whether Zachary has an essential legal right
    to stay in his home, which right is independent of his right
    to establishment and continuance of the parent-child relation-
    ship. The issue to which Zachary assigns error in this case is
    the juvenile court’s determination under § 43-251.01(7) that
    all community-based resources had been exhausted and that
    maintaining him in his home presented a significant risk of
    harm to him or the community. We note that subsection (7)
    was added to § 43-251.01 as part of 2015 Neb. Laws, L.B.
    482, and that subsection (7) requires that a juvenile “shall not
    be placed out of his or her home” unless the required findings
    are made. The Introducer’s Statement of Intent with regard to
    L.B. 482 indicated that the intent of the bill was “to ensure that
    juveniles charged with status offenses [including truancy] are
    not treated like criminals” and to “prevent kids charged with
    . . . truancy from being . . . placed in out of home care unless
    certain factors are present.” Judiciary Committee, 104th Leg.,
    1st Sess. (Feb. 25, 2015). We determine that Nebraska law as
    reflected in § 43-251.01(7) recognizes that a juvenile has an
    essential legal right, and therefore a substantial right, to remain
    in his or her home.
    [6,7] Having determined that a substantial right of Zachary’s
    was at issue in this case, we need to determine whether the
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    April 12, 2017, order affected that right within the meaning
    of § 25-1902(2). In analyzing whether a substantial right was
    affected by a juvenile court order, we have stated that it is
    not enough that the right itself be substantial, the effect of the
    order on that right must also be substantial. See In re Interest
    of Noah B. et al., 
    295 Neb. 764
    , 
    891 N.W.2d 109
     (2017). We
    further stated that whether the effect of an order is substantial
    depends on whether it affects with finality the rights of the
    parties in the subject matter. 
    Id.
    In juvenile court cases, we have observed that 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 the juvenile may reasonably
    be expected to be disturbed. See In re Interest of Becka P. et
    al., 
    296 Neb. 365
    , 
    894 N.W.2d 247
     (2017). We stated in such
    cases that 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.
    We believe that it is prudent to apply a similar analysis here
    where the focus is on the juvenile’s right to remain in his or
    her home.
    [8] As is evident from the foregoing, the substance of an
    order placing a juvenile outside his home affects the juve-
    nile’s right to stay in the home; however, in determining
    whether a substantial right has been affected for final order
    purposes, we must also consider the length of time the juve-
    nile may reasonably be expected to be deprived of that right.
    Similar to our holding with regard to orders that suspend a
    parent’s rights, we hold that orders which temporarily sus-
    pend a juvenile’s right to stay in the home for a brief period
    of time and do not purport to determine the juvenile’s place-
    ment with finality do not affect a substantial right and are
    therefore not appealable.
    Zachary notes that by virtue of the introductory sentence
    of § 43-251.01, the requirements of § 43-251.01(7) apply
    to all placements of juveniles, whether temporary or final
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    dispositions. Zachary contends that because the requirements
    must be met in temporary as well as final dispositions of
    juveniles, even a temporary order has a substantial effect on a
    juvenile’s rights. We do not agree.
    We recognize that the requirements of § 43-251.01(7) apply
    to a temporary as well as a final disposition and that therefore,
    a juvenile court must make the required findings before it
    makes a temporary placement. It does not necessarily follow
    that the temporary order is appealable.
    To determine appealability, we must determine whether the
    April 21, 2017, order which temporarily suspended Zachary’s
    right to stay in his home for a brief period of time affected
    that right with finality and had a substantial effect on that
    right. We note in this regard we have recognized that as a
    general matter, a juvenile court has continuing authority to
    change the custody or care of a juvenile under its jurisdiction
    when doing so is in the juvenile’s best interests, but that such
    ability to potentially change a placement at some future point
    “has no bearing on whether [a specific placement] order is
    final and appealable.” In re Interest of Karlie D., 
    283 Neb. 581
    , 587, 
    811 N.W.2d 214
    , 221 (2012). We cited this proposi-
    tion in In re Interest of Cassandra B. & Moira B., 
    290 Neb. 619
    , 626, 
    861 N.W.2d 398
    , 404 (2015), when we determined
    that an order was not temporary where the “order gave no
    indication that the court would revisit this issue prior to the
    next review hearing scheduled . . . approximately 6 months in
    the future.”
    In contrast to In re Interest of Cassandra B. & Moira B.,
    in this case, the court indicated that it intended to revisit
    Zachary’s placement more immediately and continued the dis-
    position for 60 days. In the April 12, 2017, order, the court
    stated it was continuing disposition of the matter to June 22
    and that it was making the placement pursuant to § 43-286,
    which authorized the court to continue disposition from time
    to time and place the juvenile in a suitable family home or
    institution. The language of the order is reinforced by the
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    court’s statements at the hearing, in which the court indicated
    that it had authority under § 43-286, that it was not entering
    final disposition, that it was placing Zachary at Boys Town
    and continuing disposition for 60 days, that it would address
    further disposition at that next hearing, and that the goal was
    for Zachary to return to his home.
    Thus, in the order and the associated comments at the hear-
    ing, the juvenile court in the present case made clear that it
    intended the April 12, 2017, order to be temporary in nature
    and that it planned to revisit the issue of an appropriate place-
    ment for Zachary at the June 22 hearing. Cf. In re Interest
    of Becka P. et al., 
    296 Neb. 365
    , 
    894 N.W.2d 247
     (2017)
    (concluding that order was not temporary and therefore was
    appealable, because neither language of order nor court’s
    remarks on record denoted temporary interruption of par-
    ents’ rights). The order did not substantially affect Zachary’s
    right to home placement, and it was not a final order under
    § 25-1902(2).
    CONCLUSION
    Because the April 12, 2017, order is not a final order, we do
    not have jurisdiction of this appeal. Accordingly, we dismiss
    the appeal for lack of jurisdiction.
    A ppeal dismissed.
    Wright, J., not participating.