Interest of Floyd B., In re

Decision Date10 April 1998
Docket NumberNo. S-97-059,S-97-059
Citation577 N.W.2d 535,254 Neb. 443
PartiesIn re Interest of FLOYD B., Jr., a child Under 18 years of Age. STATE of Nebraska, Appellee, v. FLOYD B., Sr., Appellant, and Beverly B., also known as Rochelle B., Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, determination of the issue is a matter of law, which requires an appellate court to reach a conclusion independent from that of the trial court. However, when the determination rests on factual findings, a trial court's decision on the issue will be upheld unless the factual findings concerning jurisdiction are clearly incorrect.

2. Child Custody: Jurisdiction: Appeal and Error. The question as to whether jurisdiction existing under the Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. §§ 43-1201 through 43-1225 (Reissue 1993, Cum.Supp.1994 & Supp.1995), should be exercised is entrusted to the discretion of the trial court and is reviewed de novo on the record. As in other matters entrusted to a trial judge's discretion, absent an abuse of discretion, the decision will be upheld on appeal.

3. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. A detention order issued under Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993) after a hearing which continues to withhold the custody of a juvenile from the parent pending an adjudication hearing to determine whether the juvenile is neglected or abused is a final, appealable order.

4. Jurisdiction: Motions to Dismiss: Pleadings. A jurisdictional question is not properly raised by a pretrial motion to dismiss, as such pleading is not a part of this state's procedure.

5. Actions: Jurisdiction. The absence of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

6. Juvenile Courts: Child Custody: Jurisdiction. The Nebraska Child Custody Jurisdiction Act gives jurisdiction to a juvenile court over custody proceedings, including dependency proceedings.

7. Child Custody: Jurisdiction: Courts: States. The Nebraska Child Custody Jurisdiction Act's purpose to avoid jurisdictional competition and conflict with courts of other states in matters of child custody is directed not just to present conflicts but to the potential for conflicts in the future.

8. Child Custody: Jurisdiction. In determining whether a court should entertain a child custody proceeding having interstate implications, the court should first determine whether it has jurisdiction under the Nebraska Child Custody Jurisdiction Act and then determine whether it is appropriate to exercise that jurisdiction.

9. Child Custody: Jurisdiction. A court has jurisdiction under the Nebraska Child Custody Jurisdiction Act to make a child custody determination by initial decree if one of the four following grounds of jurisdiction exists: (1) home state jurisdiction, (2) significant connection jurisdiction, (3) emergency jurisdiction, or (4) default jurisdiction (when no other state would have jurisdiction or when another state has declined to exercise jurisdiction, and it is in the best interests of the child that the court assume jurisdiction).

10. Child Custody: Jurisdiction. Emergency jurisdiction, under the Nebraska Child Custody Jurisdiction Act, permits a court to assume jurisdiction of a child who is physically present in this state when (1) the child has been abandoned or (2) it is necessary in an emergency to protect the child because he or she has been subjected to or threatened with mistreatment or abuse or is otherwise neglected.

11. Child Custody: Jurisdiction. A child's presence in this state alone is sufficient to confer jurisdiction on a court to make a child custody determination under the emergency provision of the Nebraska Child Custody Jurisdiction Act.

12. Child Custody: Jurisdiction. Emergency jurisdiction is temporary in nature and confers only the power to make temporary orders, including temporary custody for a limited period of time, pending proceedings in the state with regular jurisdiction under the Nebraska Child Custody Jurisdiction Act.

13. Child Custody: Jurisdiction. A court should assume emergency jurisdiction over a juvenile only for the duration of the emergency and should terminate its jurisdiction after the emergency has passed.

14. Evidence: Appeal and Error. On de novo review, when the evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

15. Child Custody: Jurisdiction: Courts: States. A court which has jurisdiction to make an initial decree under the Nebraska Child Custody Jurisdiction Act may decline to exercise its jurisdiction at any time prior to making a decree if the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum.

16. Child Custody: Jurisdiction: Courts: States. To determine whether a court is an inconvenient forum under the Nebraska Child Custody Jurisdiction Act, the court shall consider the following factors, among others, to determine if it is in the best interests of the child that another state assume jurisdiction: (1) another state is or recently was the child's home state; (2) another state has a closer connection with the child and his or her family; (3) substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state; (4) the parties have agreed on another forum which is no less appropriate; and (5) the exercise of jurisdiction by a court of this state would contravene a purpose of the act.

17. Child Custody: Jurisdiction: Courts: States. A paramount consideration in determining whether a state is a convenient forum under the Nebraska Child Custody Jurisdiction Act is a determination of what court is most able to act in the best interests of the child.

18. Rules of Evidence: Words and Phrases. Evidence is relevant, under Neb.Rev.Stat. § 27-401 (Reissue 1995), if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence, or the evidence tends to establish a fact from which the existence or nonexistence of a fact in issue can be directly inferred.

19. Juvenile Courts: Child Custody: Rules of Evidence: Due Process. While only relaxed rules of evidence apply at a hearing to determine who shall have temporary custody of a juvenile pending an adjudication, fundamental due process requirements must still be satisfied with regard to the type of evidence used to determine temporary custody.

20. Rules of Evidence: Due Process. In determining whether admission or exclusion of particular evidence would violate fundamental due process, the Nebraska Evidence Rules serve as a guidepost in that determination.

21. Rules of Evidence: Other Acts. According to Neb.Rev.Stat. § 27-404(2) (Reissue 1995), evidence of other crimes or bad acts may be admissible for the purpose of showing proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Section 27-404(2) allows the use of evidence of other crimes or bad acts if such evidence is relevant for any purpose other than to show the individual's propensity to commit the act alleged.

22. Trial: Evidence: Other Acts: Appeal and Error. Absent an abuse of discretion, a trial court's ruling on the admission or exclusion of evidence of other wrongs or acts will not be disturbed on appeal.

Milo Alexander, of Legal Aid Society, Inc., Omaha, for appellant.

James S. Jansen, Douglas County Attorney, and Karen S. Kassebaum, Omaha, for appellee State.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

GERRARD, Justice.

On December 11, 1996, the State of Nebraska filed an amended petition under Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993), alleging that Floyd B., Sr. (father), on November 26 subjected his son Floyd B., Jr. (Floyd), to inappropriate physical discipline resulting in a black eye, a cut on his tongue, and bruises on his inner thigh. The amended petition requested that the court enter an order regarding the custody and support of Floyd that the court deemed most appropriate. In response to the State's petition, the father filed a motion to dismiss, contending that pursuant to the Nebraska Child Custody Jurisdiction Act (NCCJA), Neb.Rev.Stat. §§ 43-1201 through 43-1225 (Reissue 1993, Cum.Supp.1994 & Supp.1995), the court lacked subject matter jurisdiction, and that even if the court had jurisdiction, the court should decline to exercise jurisdiction because Nebraska was an inconvenient forum for the proceedings. Further, the father requested that the court release Floyd to the custody of his mother, Beverly B., also known as Rochelle B. After a hearing on December 16, in which evidence was adduced, the separate juvenile court of Douglas County entered an order on December 18, finding that it would be contrary to the best interests of Floyd if he were released into the custody of either parent and mandating that Floyd be placed in the temporary custody of the then Department of Social Services, now the Department of Health and Human Services (department), until further order of the court. Because the juvenile court properly exercised emergency jurisdiction over Floyd and because Nebraska was a convenient forum for the emergency proceedings, we affirm the order of the juvenile court.

I. FACTUAL BACKGROUND

The father and the mother are married, but at the time of the emergency proceedings, they lived in different states. Their plans are apparently to reunite at some time in the future. The father and the mother have three children: Floyd, M.B., and C.B. The mother...

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  • State v. Sanchez
    • United States
    • Nebraska Supreme Court
    • July 16, 1999
    ... ... McManus, 257 Neb. at 6, 594 N.W.2d at 628 ... See, also, In re Interest of Floyd B., 254 Neb. 443, 577 N.W.2d 535 (1998) ; State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997) ... The reason for the rule is that such ... ...
  • State v. Samantha H. (In re Interest Noah C.)
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    • Nebraska Court of Appeals
    • October 2, 2018
    ... ... In re Interest of R ... G ., supra ... In determining whether admission or exclusion of particular evidence would violate fundamental due process, the Nebraska Evidence Rules serve as a guidepost in that determination. In re Interest of Floyd B ., 254 Neb. 443, 577 N.W.2d 535 (1998). We will note Samantha's objections at issue in the relevant portions of the witness testimony. (b) Testimony From Detention Hearing Mindy Estrada is the family advocate for Head Start, where Noah attended preschool. Estrada testified that at Head Start, ... ...
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    ... ... to live in such State; (B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a ... Neb.Rev.Stat. 431244; see In re Floyd B., 254 Neb. 443, 577 N.W.2d 535, 546 (1998) (stating factors a court was required to consider under a previous version of the statute) ... ...
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