IN RE TT, No. A-09-244.

• Court: Court of Appeals of Nebraska
• Writing for the Court: SIEVERS and CASSEL
• Citation: 779 NW 2d 602,18 Neb. App. 176
• Parties: In re Interest of T.T., a child under 18 years of age. State of Nebraska, appellee, v. S.Q. and A.Q., appellants.
• Docket Number: No. A-09-244.
• Decision Date: 08 December 2009

779 N.W.2d 602

18 Neb. App. 176

In re Interest of T.T., a child under 18 years of age.
State of Nebraska, appellee,
v.
S.Q. and A.Q., appellants.

No. A-09-244.

Court of Appeals of Nebraska.

December 8, 2009.

779 NW 2d 609

Christopher A. Furches, of Furches Law Office, and David P. Kyker, Lincoln, for appellants.

Sarah E. Sujith, Special Assistant Attorney General, for appellee.

SIEVERS and CASSEL, Judges.

SIEVERS, Judge.

This appeal involves a 17-year-old youth, T.T., who was left by his parents at a Lincoln, Nebraska, hospital under a previous version of Nebraska's "Safe Haven" law. The mother and stepfather, S.Q. and A.Q., respectively, whom we generally reference throughout as "the parents," appeal from the decision of the separate juvenile court of Lancaster County prohibiting them from disclosing to the public specified information concerning T.T., his medical condition, and his treatment (the gag order), as well as from the court's order that they participate in a pretreatment assessment. We conclude that the gag order cannot survive constitutional scrutiny, and we reverse, and vacate that portion of the juvenile court's order.

FACTUAL AND PROCEDURAL BACKGROUND

S.Q. is T.T.'s biological mother, and A.Q. is T.T.'s stepfather. On October 28, 2008, S.Q. and A.Q. took 17-year-old T.T. to a hospital in Lincoln, invoked Nebraska's Safe Haven law, and left him there. The version of Nebraska's Safe Haven law in effect on October 28 stated in part: "No person shall be prosecuted for any crime based solely upon the act of leaving a child in the custody of an employee on duty at a hospital licensed by the State of Nebraska." Neb.Rev.Stat. § 29-121 (Reissue 2008). We note that § 29-121 has since been amended, although the changes are not germane to this appeal.

The State filed an amended petition on October 29, 2008, alleging that T.T. was a child as defined by Neb.Rev.Stat. § 43-247(3)(a) (Reissue 2008) because he was "in a situation dangerous to his life or injurious to his health or morals" in that on October 28, S.Q. and A.Q. left him at the hospital under Nebraska's Safe Haven law. A motion for temporary custody was filed and granted that same day. T.T. has been in the custody of the Nebraska Department of Health and Human Services (DHHS) since that time. DHHS eventually placed T.T. with relatives.

At a hearing on November 24, 2008, S.Q. entered an admission to the allegations of the amended petition. A.Q. made no objection to the juvenile court's accepting the admission and taking jurisdiction in the matter. By an order filed by the juvenile court on November 26, T.T. was adjudicated to be within the meaning of § 43-247(3)(a) because he was "in a situation

779 NW 2d 610

dangerous to his life or injurious to his health or morals." Also pursuant to the November 26 order, S.Q. and A.Q. were ordered to "not discuss past and ongoing medical treatment of T.T. with the public"—the court designated this portion of the order as the "additional temporary order." The record before us does not indicate at whose instance this gag order was entered.

On December 10, 2008, DHHS filed a motion to clarify or amend the November 26 order. On December 11, S.Q. and A.Q. filed a motion to modify the temporary order. After a hearing on December 30 on these motions, the court's order was filed on January 2, 2009. In that order, the juvenile court stated:

Although disposition has not been entered, it is reasonable to assume that reunification will be the permanency goal in this case. DHHS is already providing therapeutic visitation between T.T. and his parents to work on the problems in their relationship and both T.T. and his mother have indicated a desire for further contact. Release of private, sensitive information regarding T.T. must be considered in light of the probable goal of reunification and T.T.'s best interest. Any further public disclosure by the parent of private medical information to the public would jeopardize the efforts being made to effect reconciliation and reunification between T.T. and his parent and would be harmful to T.T.'s best interest, both in the long term and short term.

The juvenile court found that it was in T.T.'s "best interest and it is in furtherance of efforts at reunification" that specific guidelines be given regarding disclosure or release of T.T.'s medical information to the public. The juvenile court therefore ordered:

There will be no further public disclosure by the parents of T.T.'s private medical information: T.T.'s full, legal name; T.T.'s date of birth; his social security number; any specific diagnosis that he has been given; any medication he has been prescribed; names of any providers of treatment to T.T. and type of treatment provided.

In a disposition order filed on February 3, 2009, the juvenile court stated that the primary permanency plan for T.T. was "Independent Living" with an alternative plan of "Self Sufficiency." Once again the juvenile court ordered:

There will be no further public disclosure by the parents of T.T.'s private medical information: T.T.'s full, legal name; T.T.'s date of birth; his social security number; any specific diagnosis that he has been given; any medication he has been prescribed; names of any providers of treatment to T.T. and type of treatment provided.

Hereafter, we will generally reference these two orders by the term "gag order," the common colloquial phrase used to describe orders restricting disclosure or speech. The juvenile court also ordered S.Q. and A.Q. to "participate in a pretreatment assessment and sign releases of information so that DHHS can provide documents to the evaluator." S.Q. and A.Q. now appeal from the district court's February 3 order.

ASSIGNMENTS OF ERROR

S.Q. and A.Q. allege that the juvenile court erred in (1) violating their rights to free speech and (2) ordering them to submit to a pretreatment assessment when the permanency objective was independent living and not reunification.

STANDARD OF REVIEW

Juvenile cases are reviewed de novo on the record, and an appellate court

779 NW 2d 611

is required to reach a conclusion independent of the juvenile court's findings. In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).

ANALYSIS

Jurisdiction Over Gag Order of February 3, 2009.

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., 276 Neb. 679, 757 N.W.2d 1 (2008). Additionally, DHHS has moved to dismiss the appeal because the order of January 2, 2009, contained an identical gag order and was a final, appealable order but the notice of appeal was not filed until February 27, more than 30 days after the January 2 order, and thus, the appeal was filed out of time. We notified the parties that we would not rule on the motion to dismiss until after oral argument and submission of the case for decision.

We begin our jurisdictional analysis by noting that the juvenile court's order of February 3, 2009, is an "Order of Disposition" and that such orders of the juvenile court are final, appealable orders. See In re Interest of Clifford M. et al., 6 Neb.App. 754, 577 N.W.2d 547 (1998). But here, the State asserts that both of the parents' assignments of error involve matters over which we have no jurisdiction even though this appeal was filed within 30 days of the February 3 order. It is well known that in order 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. In re Interest of Michael U., 273 Neb. 198, 728 N.W.2d 116 (2007). Conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. See id. While there are three types of final orders defined by Nebraska law, we find that the jurisdictional issue here centers on the second of the three types of appealable orders—an order affecting a substantial right made during a special proceeding. See In re Estate of Rose, 273 Neb. 490, 730 N.W.2d 391 (2007). See, also, Neb.Rev. Stat. § 25-1902 (Reissue 2008).

There is no doubt that a proceeding before a juvenile court is a "special proceeding" for appellate purposes. See In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008). Thus, the jurisdictional issue concerning the gag order is resolved by determining whether the January 2, 2009, order affects a substantial right as that concept has been articulated under Nebraska law. The analysis of this issue is undertaken against the backdrop that the language in the gag orders of January 2 and February 3 is identical, a fact which necessarily involves application of the continuing order doctrine detailed in Federal Land Bank v. McElhose, 222 Neb. 448, 384 N.W.2d 295 (1986). In McElhose, the Nebraska Supreme Court held that when a court's order is already in place and a subsequent order merely extends the time that the previous order is applicable, the subsequent order does not extend the time in which the original order may be appealed. This concept has been extended to juvenile cases, and the Supreme Court has said that the subsequent order does not by itself affect a substantial right. See In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289 (2000). The Supreme Court has reasoned that an appeal from a subsequent order that 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

779 NW 2d 612

that the parents had to appeal within 30 days of the January 2 gag order because the February 3 order merely continues the previous order, using identical language. This is the essence of the State's argument asserted in the motion to dismiss, that we lack jurisdiction.

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