In re Interest of Sarah K.
| Citation | 601 N.W.2d 780,258 Neb. 52 |
| Decision Date | 29 October 1999 |
| Docket Number | No. S-99-181.,S-99-181. |
| Parties | In re Interest of SARAH K., a child under 18 years of age. State of Nebraska, appellee, v. Robert K. and Sandra K., appellants. |
| Court | Supreme Court of Nebraska |
Robert K. and Sandra K., pro se.
Linda S. Porter, Deputy Lancaster County Attorney, Lincoln, for appellee.
Robert K. and Sandra K., respectively the father and mother of Sarah K., a minor, appeal from the December 22, 1998, order entered by the juvenile court of Lancaster County. The December 22 order approved an initial permanency plan which provided for long-term foster care for Sarah, supervised visitation with the parents, and the possibility of reunification with the parents. The December 22 order also found that the filing of a petition to terminate the parental rights of the parents was not in Sarah's best interests. We conclude that the December 22 order is not an appealable order and, therefore, dismiss for lack of jurisdiction.
On September 28, 1995, Sarah, born on October 31, 1981, was adjudicated to be a child as described in Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1995). The adjudication was based in part on the faults of the mother due to her inappropriate physical discipline of Sarah and in part not due to the fault of the parents because of Sarah's self-destructive behavior. Since June 1997, Sarah has resided at a foster care facility. The family has been subject to rehabilitation plans since Sarah's adjudication, and no appeals have been taken therefrom.
Operative July 1, 1998, Neb.Rev.Stat. § 43-1312 (Reissue 1993) was amended to require, in pertinent part, that initial and periodic hearings be held to review permanency plans for juveniles who have been in state foster care for 12 months. See § 43-1312(3) (Reissue 1998). Also operative July 1, Neb.Rev.Stat. § 43-292.02 (Reissue 1998) requires that termination of parental rights proceedings be instituted where a juvenile has been in foster care for 15 or more of the most recent 22 months, or that the State establish at an exception hearing that an exception to termination is in the juvenile's best interests under § 43-292.02(3)(b).
Pursuant to §§ 43-1312(3) and 43-292.02, the State filed a motion to hold an initial hearing on a permanency plan for Sarah relative to her foster care. The trial court granted the motion, and the combined permanency and exception hearing was scheduled for October 22, 1998, the same date as the next regularly scheduled case disposition review. In response to the State's motion, the parents, appearing pro se, filed a "demurrer" objecting to the combined dispositional and permanency hearing.
At the October 22, 1998, hearing, the juvenile court approved the case plan submitted by the State. The juvenile court, however, specifically continued the hearing on the permanency plan and exception to November 30. The case plan, supported by a report approved by the juvenile court on October 22, provided, inter alia, for long-term foster care for Sarah, supervised visitation by the parents, and a goal of reunification. No appeal was taken from the October 22 order.
On November 30, 1998, the juvenile court conducted the initial permanency hearing involving Sarah and her parents. This hearing was combined with an exception hearing which, pursuant to § 43-292.02(1)(a), must be held after the juvenile has been in foster care for 15 or more of the most recent 22 months. At the exception hearing, the State shall advise the court of the steps taken to terminate parental rights or document an "exception" to termination by demonstrating a compelling reason not to file for termination. Where the exception is demonstrated by the evidence, the juvenile court shall find an exception to termination if the juvenile court also finds that it is in the best interests of the juvenile that the parental rights not be terminated. § 43-292.02(3)(b).
The juvenile court heard testimony and received evidence at the November 30, 1998, hearing. The evidence included testimony from Patrick Kreifels, a Child Protective Services worker for the Nebraska Department of Health and Human Services assigned to Sarah's case. Kreifels testified that while Sarah's reunification with her parents remained a possibility, the permanency plan proposed by the State called for Sarah to continue in long-term foster care. Other evidence received by the court included a recommendation by Sarah's therapist, Jody L. Busse, that, in addition to long-term care, Sarah, then 17 years of age, be prepared for the "eventual transition to independent living." The parents offered a competing plan which, inter alia, called for Sarah to immediately return to the family home.
On December 22, 1998, the juvenile court entered a written order overruling the parents' "demurrer." The juvenile court found that the State's permanency plan of long-term foster care transitioning to independent living was in the best interests of Sarah. In addition, the court specifically found that the "parents' parental rights should not be terminated," that the "exception" set forth in § 43-292.02(3)(b) had been established by the evidence, that an exception was in Sarah's best interests, and that as a result, the State was not required to file a motion or petition to terminate parental rights. The parents appeal the December 22 order.
Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the trial court's findings; however, when the evidence is in conflict, the appellate court will consider and give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. In re Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d 109 (1998).
When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent from the decisions made by the lower courts. In re Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548 (1997).
For their assignments of error, the parents claim that the juvenile court erred in its December 22, 1998, order in nine particulars. The parents' brief on appeal makes clear that they take exception to the content of the December 22 order and not orders previously entered in the case. The State argues that this court lacks appellate jurisdiction because the appeal is taken from a nonappealable order. Because we conclude that the December 22 order is a nonappealable order, we dismiss.
A proceeding before a juvenile court is a special proceeding for appellate purposes. In re Interest of Tabatha R., supra. To be appealable, an order in a special proceeding must affect a substantial right. Id. A substantial right is an essential legal right, not a mere technical right. In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998).
This court has previously noted that "a judicial determination made following an adjudication in a special proceeding which affects the substantial rights of parents to raise their children is a final, appealable order." In re Interest of Tabatha R., 255 Neb. at 827, 587 N.W.2d at 116. However, we have also recognized in juvenile cases that where an order from a juvenile court is already in place and a subsequent order merely extends the time for which the previous order is applicable, the subsequent order by itself does not affect a substantial right and does not extend the time in which the original order may be appealed. In re Interest of Joshua M. et al., supra. Thus a dispositional order which merely continues a previous determination is not an appealable order. Id. To determine appealability in this case, it is necessary for us to consider the nature of the court's December 22, 1998, order and what parental rights, if any, it affected.
The State's motion for permanency hearing sought that a hearing be held pursuant to "Neb.Rev.Stat. § 43-1312(3) and Section 30 of LB 1041." As amended by 1998 Neb. Laws, L.B. 1041, § 43-1312(3) provides:
The permanency hearing of November 30, 1998, was combined with the exception hearing provided for in § 43-292.02(3)(b). Neither the statute nor legislative history contains a...
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...merely continues the effectiveness of a prior order is an impermissible collateral attack on the previous order. In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999). Thus, at first blush it appears that the parents had to appeal within 30 days of the January 2 gag order because t......
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