Interest of Joshua M., In re
| Decision Date | 31 January 1997 |
| Docket Number | S-95-761 and S-95-762,Nos. S-94-1239,S-94-1240,s. S-94-1239 |
| Citation | 558 N.W.2d 548,251 Neb. 614 |
| Parties | In re Interest of JOSHUA M. et al., Children Under 18 Years of Age. STATE of Nebraska, Appellee, v. LONA F., Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Parental Rights: Appeal and Error. 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, where the evidence is in conflict, the appellate court will consider and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.
2. Judgments: Jurisdiction: Appeal and Error. 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.
3. Juvenile Courts: Parental Rights: Proof. In order to demonstrate that a preadjudication detention should continue, the State must prove by a preponderance of the evidence that the custody of a juvenile should remain in the Department of Social Services pending adjudication.
4. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. A detention order issued under Neb.Rev.Stat. §§ 43-247(3)(a) and 43-254 (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 is a final order and thus appealable.
5. Courts: Jurisdiction: Appeal and Error. Once an appeal has been perfected to an appellate court, the trial court is without jurisdiction to hear a case involving the same matter between the same parties.
6. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. A judicial determination made following adjudication in a special proceeding which affects the substantial right of parents to raise their children is a final, appealable order.
7. Final Orders: Time: Appeal and Error. Where an order from a court is already in place and a subsequent order merely extends the time for which the previous order is applicable, the subsequent order does not extend the time in which the original order may be appealed.
8. Collateral Attack: Jurisdiction. Collateral attacks on previous proceedings are impermissible unless the attack is grounded upon the court's lack of jurisdiction over the parties or subject matter.
9. Parental Rights: Evidence: Proof. Under Neb.Rev.Stat. § 43-292(6) (Reissue 1993), the State must prove by clear and convincing evidence that (1) the parent has willfully failed to comply, in whole or in part, with a reasonable provision material to the rehabilitative objective of the plan and (2) in addition to the parent's noncompliance with the rehabilitative plan, termination of parental rights is in the best interests of the child.
10. Statutes. In construing a statute, a court must look to the statute's purpose and give to the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.
11. Juvenile Courts: Parental Rights. While there is no requirement that the juvenile court must institute a plan for rehabilitation of a parent, where the failure of a parent to comply with a rehabilitation plan is an independent ground for termination of parental rights, the rehabilitation plan must be conducted under the direction of the juvenile court and must be reasonably related to the plan's objective of reuniting parent with child.
12. Juvenile Courts: Parental Rights. A juvenile court has broad discretion to prescribe a reasonable plan to rehabilitate a parent whose child has been adjudicated to be within the meaning of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993).
13. Pleadings: Appeal and Error. A trial court may conform the pleadings to the facts proved when an amendment does not change substantially the claim or defense. The decision to allow such an amendment rests with the discretion of the trial court and will not be error unless prejudice resulted. Prejudicial error results when a pleading is allowed to be amended where the amendment changes the issues and affects the quantum of proof as to any material fact.
14. Evidence: Words and Phrases. Clear and convincing evidence means and is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.
15. Parental Rights. Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights.
16. Parental Rights. Children cannot, and should not, be suspended in foster care, nor be made to await uncertain parental maturity.
17. Parental Rights. A parent's unwillingness to comply with a rehabilitation program directed at reuniting the parent with his or her child and designed to secure the continued long-term health and well-being of the child compels the conclusion that termination of that parent's rights is in the best interests of the child.
18. Evidence: Appeal and Error. The improper admission of evidence by the trial court does not, by itself, constitute reversible error.
Julie A. Frank, of Frank & Gryva, P.C., Omaha, for appellant.
Margaret A. Badura, Deputy Douglas County Attorney, and Christine P. Costantakos, guardian ad litem, Omaha, for appellee.
Kimberley Taylor Riley for amicus curiae Foster Care Review Board.
These appeals arose from the Douglas County Separate Juvenile Court's decisions in four separate cases involving five children: Gloria F., born May 5, 1985; Tabitha M., born August 13, 1987; T.J. M., born February 21, 1990; Amanda M., born October 27, 1991; and Joshua M., born September 6, 1993.
Case No. S-94-1239 is an appeal from the juvenile court order directing that Joshua be removed from the care of the mother, Lona F., and that custody be placed in the Department of Social Services (DSS). Case No. S-94-1240 is an appeal from an identical order with respect to the remaining four children. Case No. S-95-761 is an appeal from the juvenile court's termination of Lona's parental rights regarding Joshua. Case No. S-95-762 is an appeal from the juvenile court's termination of Lona's parental rights regarding the remaining four children.
Juvenile cases are reviewed de novo on the record, and the appellate court is required to reach a conclusion independent of the trial court's findings; however, where the evidence is in conflict, the appellate court will consider and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another. In re Interest of Jorius G. & Cheralee G., 249 Neb. 892, 546 N.W.2d 796 (1996); In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994); In re Interest of J.A., 244 Neb. 919, 510 N.W.2d 68 (1994).
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 Noelle F. & Sarah F., 249 Neb. 628, 544 N.W.2d 509 (1996).
Lona was 13 years old when she gave birth to Gloria. Gloria's biological father, Walter R., was apparently 36 years old at the time. At age 15, Lona began living with Thomas M. and Barbara C. Lona, Thomas, and Barbara lived as one family unit, and Thomas fathered at least seven children between the two women. Thomas is the biological father of Tabitha, T.J., Amanda, and Joshua.
On March 26, 1993, the Douglas County Attorney filed a petition regarding Gloria, Tabitha, T.J., and Amanda, alleging that they were within the meaning of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993) and requesting that they be placed in the temporary custody of DSS. Joshua was not yet born at this time. The juvenile court ordered that the immediate custody of the children be retained in DSS. On June 8, Thomas was charged with two counts of first degree sexual assault on a child. The charges alleged that Thomas had sexually assaulted Gloria and a second child fathered by Thomas and born to Barbara. Thomas was ultimately convicted and sentenced to consecutive sentences of 8 to 12 years' imprisonment on each count.
On August 23, 1993, Gloria, Tabitha, T.J., and Amanda were adjudicated to be within the meaning of § 43-247(3)(a). This order retained temporary custody of the children with DSS for appropriate care and placement. On October 6, the children were ordered to remain in the temporary custody of DSS and Lona was ordered to comply with a plan designed to correct the conditions leading to their adjudication. Among other proscriptions, Lona was ordered to avoid any association with Thomas. On November 18, the juvenile court again ordered Lona to refrain from contact with Thomas.
A review of the detention order was held on April 22, 1994, and the juvenile court found that it was still not in the children's best interests to be returned to Lona's home. The court continued their temporary custody with DSS. A review hearing was again held on October 19. The court found that T.J. and Amanda should remain in the custody of DSS for appropriate care and placement, but modified the initial order such that the placement of T.J. and Amanda could "include the home of Lona." Gloria and Tabitha remained in foster care. T.J. and Amanda were eventually returned to Lona's home as provided for in the October 19 modification.
The October 19, 1994, order also reiterated the prohibition on Lona's having any contact with Thomas:
[Lona must] [n]ot engage in any contact or communication or visitation in ANY FORM WHATSOEVER, (including but not limited...
To continue reading
Request your trial
-
State v. Heather N. (In re Michael N.)
... 302 Neb. 652 925 N.W.2d 51 IN RE Interest of MICHAEL N., a child under 18 years of age. State of Nebraska, Appellee and Cross-Appellee, and Douglas County Attorney's Office, Appellant and ... See In re Interest of Ty M. & Devon M. , 265 Neb. 150, 655 N.W.2d 672 (2003). See, also, In re Interest of Joshua M. et al. , 251 Neb. 614, 558 N.W.2d 548 (1997) ; In re Interest of R.R. , 239 Neb. 250, 475 N.W.2d 518 (1991) ; In re Interest of R.G. , 238 ... ...
- State v. Joshua C. (In re Interest of A.A.)
-
IN RE TT
... 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, ... S.Q. and A.Q., appellants ... No. A-09-244 ... Court of Appeals ... See In re Interest of Joshua M. et al., 4 Neb.App. 659, 548 N.W.2d 348 (1996), reversed in part on other grounds, 251 Neb. 614, 558 N.W.2d 548 (1997). But, that doctrine has ... ...
-
In re Interest of Azia B.
... ... Instead, the time has come to end the procedural limbo for Azia. Where a parent is unable or unwilling to rehabilitate himself or herself within a reasonable time, the best interests of the child require termination of the parental rights. In re Interest of Joshua M. et al., 251 Neb. 626 N.W.2d 612 614, 558 N.W.2d 548 (1997). Children cannot, and should not, be suspended in foster care, nor be made to await uncertain parental maturity. Id. In sum, this record amply supports the conclusion that it is in the best interests of Azia to terminate Monique's ... ...
-
What's So Special About Special Proceedings? Making Sense of Nebraska's Final Order Statute
...(same). 224. See In re Interest of Tabitha R., 255 Neb. 818, 827-28, 587 N.W.2d 109, 117 (1998). 225. See In re Interest of Joshua M., 251 Neb. 614, 629, 558 N.W.2d 548, 559 (1997); In re Interest of J.H., 242 Neb. 906, 914, 497 N.W.2d 346, 353 (1993); see also In re Interest of Clifford M.......