Interest of John T., In re

Decision Date03 October 1995
Docket NumberNo. A-95-215,A-95-215
Citation538 N.W.2d 761,4 Neb.App. 79
Parties, 7 NDLR P 112 In re Interest of JOHN T., a Child Under 18 Years of Age. STATE of Nebraska, DEPARTMENT OF SOCIAL SERVICES, Appellee, v. Patrick T. CARRAHER, Guardian Ad Litem, Appellant, and G.B. and J.B., Appellees.
CourtNebraska Court of Appeals

Syllabus by the Court

1. Juvenile Courts: Final Orders: Appeal and Error. On appeal of any final order of the juvenile court, an appellate court tries factual questions de novo on the record and is required to reach a conclusion independent of the findings of the trial court, but when the evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts rather than the other.

2. Appeal and Error. With respect to legal questions, an appellate court reaches independent conclusions of law.

3. Juvenile Courts: Proof. Under Neb.Rev.Stat. § 43-285(2) (Reissue 1993), if any party, including, but not limited to, the guardian ad litem, parents, county attorney, or custodian, proves by a preponderance of the evidence that the Department of Social Services plan for the care, placement, and services to be provided for a child adjudicated under Neb.Rev.Stat. § 43-247(3) (Reissue 1993) is not in the juvenile's best interests, the court shall disapprove the department's plan.

Patrick T. Carraher, Lincoln, guardian ad litem.

Don Stenberg, Attorney General, Cecile A. Brady, Lincoln, and on brief Royce N. Harper, Lincoln, for appellee State.

SIEVERS, C.J., and IRWIN and MUES, JJ.

SIEVERS, Chief Judge.

In this case, we examine the Department of Social Services (DSS) plan to remove a 3 1/2 year-old child from his foster parents, with whom he has lived since he was 3 months of age, and place him in the home of other foster parents. The proposed change is a result of the fact that the child's present foster mother is afflicted with acquired immunodeficiency syndrome (AIDS). The separate juvenile court of Lancaster County approved the DSS plan to move the child, and the child's guardian ad litem now appeals to this court.

PROCEDURAL BACKGROUND

The separate juvenile court of Lancaster County adjudicated John T. as a child without proper support through no fault of his parents under Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993) on April 9, 1992. The natural mother and father of John voluntarily relinquished to DSS their parental rights pursuant to Neb.Rev.Stat. § 43-106.01 (Reissue 1993), and as a result the juvenile court found that John was a child as defined in § 43-247(8), to-wit: "Any juvenile who has been voluntarily relinquished, pursuant to section 43-106.01, to the Department of Social Services...." On March 27, 1992, at the age of 3 months, John was placed in the custody of the foster parents involved in this litigation, J.B. and G.B., who are husband and wife. On May 27, 1994, DSS filed a "Notice of Placement Change," stating that it intended to change foster placement of John from the foster home of J.B. and G.B. to the foster home of another couple. The guardian ad litem and the current foster parents opposed the placement change.

After extensive evidentiary hearings, the court issued its order approving the DSS plan. The guardian ad litem filed a motion

for new trial, which was overruled, and a timely appeal to this court was filed on February 14, 1995. On June 8, the guardian ad litem filed a request that this court order a stay of the juvenile court's order. Although that request was denied, we ordered the appeal expedited, advised counsel that no extension of brief dates would be granted, and set the case for oral argument during the court's September 1995 session.

JUVENILE COURT DECISION

The juvenile court found that it was in John's best interests that he remain in the custody of DSS and that its "permanency plan" that he be adopted was also in his best interests. The court recited that DSS has located people who can provide "long term permanent placement" via adoption, which DSS can approve, and that the evidence "does not establish, by clear and convincing evidence, that the best interests of the child require that an alternative disposition to the Department's plan be made." Thus, the court approved the plan to "transition" John to the new foster/adoptive home.

In its order overruling the motion for new trial, the court made somewhat different findings, but with the same result. The court found that the proposed plan involved a change of placement so fundamental to the care, custody, and placement of the child that it could only be described as dispositional in nature and that the objection of the guardian ad litem to the plan constitutes an alternative disposition for the child. Therefore, proof by a standard of "clear and convincing evidence" was required to approve such alternative disposition. The court then found that the evidence did not establish by clear and convincing evidence that the DSS plan was not in the best interests of the child. Moreover, the court found that even if the guardian ad litem's objection were not considered an alternative disposition, there was a failure to prove by a preponderance of the evidence that the DSS plan was not in the best interests of the child. The court reasoned that approval of the plan would hold, irrespective of whether the evidentiary standard was that found in Neb.Rev.Stat. § 43-284.01 (Reissue 1993) (clear and convincing evidence) or the lesser standard of Neb.Rev.Stat. § 43-285 (Reissue 1993) (preponderance of the evidence). A specific finding was made that the plan of DSS was in the best interests of John, and the motion for new trial was overruled.

ASSIGNMENTS OF ERROR

The guardian ad litem assigns the following six errors of the trial court: (1) in presuming that the plan of DSS was in the best interests of John, (2) in imposing a burden of proof of clear and convincing evidence upon the guardian ad litem rather than by a preponderance of the evidence, (3) in finding that "it was restricted by the authority of the Nebraska Department of Social Services," (4) in approving the plan of DSS "when the majority of the evidence favored the position of the guardian ad litem," (5) in changing John's placement because of the health status of one of his caregivers, and (6) in failing to find that the " 'health' regulation of the Department of Social Services was in violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution."

STANDARD OF REVIEW

As this is the appeal of a final order from a juvenile court, our standard of review is that we try factual questions de novo on the record. We are required to reach a conclusion independent of the findings of the trial court, but when the evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts rather than another. In re Interest of L.W., 241 Neb. 84, 486 N.W.2d 486 (1992). With respect to legal questions, the appellate court reaches independent conclusions of law. State v. Yelli, 247 Neb. 785, 530 N.W.2d 250 (1995).

As part of articulating our standard of review, we must address the matter of the burden of proof in the trial court, about which there is much disagreement and argument in the briefs. The juvenile court's order perhaps reflects some confusion about the burden of proof. The guardian ad litem asserts that his burden of proof is to show by a "preponderance of the evidence" under The Nebraska Supreme Court faced a somewhat similar situation in State v. Souza Spittler, 204 Neb. 503, 283 N.W.2d 48 (1979). In Souza Spittler, the appellant claimed that the trial court had erred in failing to specifically find that the State's burden of proof when terminating parental rights was by clear and convincing evidence rather than a preponderance of the evidence. The Supreme Court held that termination of parental rights should in fact be based on clear and convincing evidence, but no reversal of the juvenile court was required, since the evidence before the juvenile court satisfied even the stricter "clear and convincing" standard. In support of its decision, the Supreme Court noted that in any event, the matter was triable de novo in the Supreme Court and that since a correct judgment or order was made by the lower court, the fact that it contained erroneous declarations of law did not require reversal, citing Lux v. Mental Health Board of Polk County, 202 Neb. 106, 274 N.W.2d 141 (1979).

                §  43-285(2) that the DSS plan to [4 Neb.App. 83] "transition" John from his present foster parents and place him with other foster parents is not in the best interests of the child.  On the other hand, DSS claims that the guardian ad litem's burden of proof is to show that the plan is not in the best interests of John by "clear and convincing evidence" under § 43-284.01.  The juvenile court, in its final order, appears to have adopted the "clear and convincing" standard for the burden of proof, but approved the plan irrespective of whether the guardian's burden of proof was by a "preponderance of the evidence" or by "clear and convincing evidence."   The juvenile court found that the guardian ad litem would not prevail under either standard
                

Here, too, we try this matter de novo on the record. Which burden of proof the juvenile court used is not a decisive matter on appeal. For our part, we rely upon the Supreme Court's recent pronouncements in In re Interest of Constance G., 247 Neb. 629, 636-37, 529 N.W.2d 534, 540 (1995):

We have held that a juvenile court has the discretionary power to prescribe a reasonable plan for parental rehabilitation to correct the conditions underlying the adjudication that a child is a juvenile within the Nebraska Juvenile Code. In re Interest of L.O. and B.O., 229 Neb. 889, 429 N.W.2d 388 (1988); In re Interest of L.H., 227 Neb. 857, 420...

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