In re Marcella B.
| Decision Date | 24 November 2009 |
| Docket Number | No. A-09-382.,A-09-382. |
| Parties | In re Interest of MARCELLA B. and Juan S., children under 18 years of age. State of Nebraska, appellee, and Candice J. Novak, guardian ad litem, appellant, v. Latisha J., appellee. |
| Court | Nebraska Court of Appeals |
Candice J. Novak, of Thomas G. Incontro, P.C., L.L.O., guardian ad litem.
Thomas C. Riley, Douglas County Public Defender, and Martha J. Wharton for appellee Latisha J.
Latisha J. is the natural mother of Marcella B. and Juan S. The State filed a petition, based upon allegations of physical abuse, to adjudicate the children under Neb.Rev.Stat. § 43-247(3)(a) (Reissue 2008). Before the adjudication hearing, the appointed guardian ad litem, Candice J. Novak, made a motion to have Marcella's testimony be heard in chambers. The separate juvenile court of Douglas County overruled the motion on April 3, 2009 (April 3 order), and Novak has appealed that order to this court. We dismiss the appeal because the juvenile court's April 3 order is not a final, appealable order, and therefore, this court lacks jurisdiction over this appeal.
On January 26, 2009, the State filed a petition in the separate juvenile court of Douglas County, alleging that Marcella and Juan were children within the meaning of § 43-247(3)(a) by reason of the faults or habits of their natural mother, Latisha, because Latisha has subjected Marcella to inappropriate physical contact and failed to provide Marcella and Juan with appropriate care, support, and/or supervision. The State also filed a motion for temporary custody of Marcella and Juan to be placed with the Department of Health and Human Services, which motion was granted by the court.
On March 3, 2009, Novak filed a motion to allow Marcella's testimony to be heard in chambers at the adjudication hearing, which hearing the court had previously set for April 7. The hearing on Novak's motion was held on March 9 and 23, when a therapist who had evaluated Marcella testified that having Marcella testify in front of her mother would cause Marcella harm. The court, in its April 3 order, overruled Novak's motion for in-chambers testimony because the court could not find by a preponderance of the evidence that the guardian ad litem met the burden of proof required by In re Interest of Brian B. et al., 268 Neb. 870, 689 N.W.2d 184 (2004). The court stated that it distinguishes [the therapist's] speculation in the instant case from the educated guess of [the] therapist ... in Brian B. in the following respect. The therapist in Brian B. was able to identify how the child's diagnosis manifests itself not only in the larger population, but also had a basis to render an opinion because of a treatment history with the child. Such is not the situation with [the] therapist ... in the instant matter.
Novak filed her notice of appeal of the juvenile court's April 3 order on April 7, 2009.
Novak, the guardian ad litem, assigns as error that the juvenile court erred when it (1) overruled Novak's motion to allow in-chambers testimony; (2) applied an incorrect standard in determining whether Marcella should have been allowed to testify in chambers; and (3) failed to recognize that Marcella had a right to testify in chambers due to the undisputed evidence of harm that would result from courtroom testimony, given the rights granted Novak under Neb.Rev.Stat. § 43-246 (Reissue 2008).
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 of the decisions made by the lower courts. In re Interest of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008).
Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings. In re Interest of Taylor W., 276 Neb. 679, 757 N.W.2d 1 (2008).
Finality of April 3 Order.
Novak, in her capacity as Marcella's guardian ad litem, argues that the juvenile court erred in overruling the motion for in-chambers testimony. However, Latisha argues that the April 3 order was not a final, appealable order, meaning that this court does not have jurisdiction to review this matter. 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 Taylor W., supra.
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. Keef v. State, 262 Neb. 622, 634 N.W.2d 751 (2001). There are three types of final orders that can be reviewed on appeal: an order which affects a substantial right and which determines the action and prevents a judgment, an order affecting a substantial right made during a special proceeding, and an order affecting a substantial right made upon summary application in an action after a judgment is rendered. See Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997); Neb.Rev.Stat. § 25-1902 (Reissue 2008). Of the three types of final orders referenced above, the April 3 order is clearly not an order that determined the action and prevented judgment, because the action is ongoing as to all parties. Nor was it an order made on summary application after judgment, because there has been no judgment in this case. Therefore, overruling the motion for in-chambers testimony can be a final order only if it is an order affecting a substantial right made in a special proceeding.
Orders affecting a substantial right in a special proceeding must, by definition, meet two requirements: a substantial right and a special proceeding. See Hernandez v. Blankenship, 257 Neb. 235, 596 N.W.2d 292 (1999). Nebraska law is clearly established that a proceeding before a juvenile court is a special proceeding for appellate purposes. In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002). See In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved on other grounds, O'Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998). Therefore, the inquiry is whether overruling the motion for in-chambers testimony affected a substantial right of Marcella, given that she is, in essence, the appealing party through her guardian ad litem. In other words, does Marcella have a right to testify in chambers, instead of in the presence of her mother, and if so, is such right a "substantial" right? Based upon the procedural posture of the case and Novak's arguments in her brief, the substantial right that is allegedly affected by the April 3 order is Marcella's right to testify outside the presence of her mother at the adjudication hearing. However, in neither the jurisdiction section nor the argument section of Novak's brief does Novak provide statutory or case law authority showing that the victim of parental abuse has a right, substantial or otherwise, to testify outside of the presence of the parent who is the alleged abuser.
When determining whether an order is final, a substantial right is an essential legal right, not a mere technical right. In re Interest of Enrique P. et al., 14 Neb.App. 453, 709 N.W.2d 676 (2006). When an order affects the subject matter of the litigation, by diminishing a claim or defense available to a defendant, this affects a substantial right. Hernandez v. Blankenship, supra. If an order significantly impinges on a constitutional right, for example, parents' liberty interest in raising their children or a criminal defendant's right not to be subjected to double jeopardy, this affects a substantial right. Id.
It is well established in Nebraska that the relationship between parent and child is constitutionally protected. In re Interest of D.W., 249 Neb. 133, 542 N.W.2d 407 (1996). The right of parents to maintain custody of their child is a natural right, subject only to the paramount interest which the public has in the protection of the rights of the child. In re Interest of Brian B. et al., 268 Neb. 870, 689 N.W.2d 184 (2004). Many cases involving final orders from a juvenile proceeding pertain to a parent's right. See, In re Interest of R.G., supra (); In re Interest of Jaden H., 10 Neb.App. 87, 625 N.W.2d 218 (2001) (); In re Interest of Joshua M. et al., 4 Neb.App. 659, 548 N.W.2d 348 (1996) (). The Nebraska Supreme Court has found that an order concerning placement or custody of children affects a substantial right because the parent's liberty interest in raising his or her children is implicated. In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved on other grounds, O'Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998). The court specifically considers the object of the order and the length of time over which the parent's relationship with the juvenile could reasonably be expected to be disturbed to determine if such liberty interest is affected. See id.
However, Latisha's rights to parent are not at issue here. Rather, the question is whether Marcella has a right to testify outside of the presence of her mother. When constitutional rights, such as a parent's liberty interest, are not implicated by the order, we are less...
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... ... 43272(2) (Reissue 2008).22 See In re Interest of Karlie D., supra note 19 (identifying substantial right of parent in juvenile proceedings as parent's fundamental, constitutional right to raise his or her child).23 See In re Interest of Marcella B. & Juan S., 18 Neb.App. 153, 775 N.W.2d 470 (2009).24 See id.25 See Neb.Rev.Stat. 43246(1) (Cum. Supp. 2014).26 See In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004).27 See In re Adoption of Kenten H., supra note 6.28 See 25 U.S.C. 1911 and 43 1504.29 See 25 U.S.C. 1912 and 43 ... ...
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