Interest of Joshua M., In re

• Decision Date: 21 May 1996
• Docket Number: A-94-1240,Nos. A-94-1239,A-95-761 and A-95-762,s. A-94-1239
• Citation: 548 N.W.2d 348,4 Neb.App. 659
• 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 Court of Appeals

Page 348

548 N.W.2d 348

4 Neb.App. 659

In re Interest of JOSHUA M. et al., children under 18 years of age.

STATE of Nebraska, Appellee, v. LONA F., Appellant.

Nos. A-94-1239, A-94-1240, A-95-761 and A-95-762.

Court of Appeals of Nebraska.

May 21, 1996.

Syllabus by the Court

1. Jurisdiction: Appeal and Error. Whether a question is raised by the parties concerning jurisdiction of a lower court or tribunal, it is not only within the power but the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

2. Judgments: Jurisdiction: Appeal and Error. Where 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 inferior court.

3. Juvenile Courts: Appeal and Error. An appeal to the Nebraska Court of Appeals or the Nebraska Supreme Court from a juvenile court is reviewed de novo on the record. In that review, findings of fact made by the juvenile court may be accorded weight by the appellate court because the juvenile court observed the parties and the witnesses and made findings as a result thereof.

4. Final Orders: Appeal and Error. A court order is appealable only if it is a final order.

5. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. A detention order entered after a hearing which continues to keep a juvenile's custody from the parent, pending an adjudication hearing to determine whether the juvenile is neglected, is final and thus appealable.

6. Juvenile Courts: Final Orders: Appeal and Error. Dispositional orders of a juvenile court are final, appealable orders.

7. Constitutional Law: Parental Rights. A parent has a liberty interest in raising her or his child, a concept which encompasses the child's custody, care, and control.

8. Final Orders: Waiver: Appeal and Error. Grounds for appeal from final orders not appealed from are waived.

9. Juvenile Courts: Jurisdiction: Parental Rights. Neb.Rev.Stat. § 43-295 (Reissue 1993) generally provides a juvenile court with continuing jurisdiction over a juvenile and empowers the court to order a change in the custody or care of any such juvenile if at any time it is made to appear to the court that it would be for the best interests of the juvenile to make such change.

10. Juvenile Courts: Jurisdiction: Parent and Child: Appeal and Error. The continuing jurisdiction of a juvenile court under Neb.Rev.Stat. § 43-295 (Reissue 1993) does not include the power to terminate a juvenile's relationship with his or her parent pending an appeal.

11. Jurisdiction: Appeal and Error. The general rule in Nebraska is against concurrent jurisdiction of trial and appellate courts.

12. Jurisdiction: Appeal and Error. After 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.

13. Juvenile Courts: Jurisdiction: Appeal and Error. Once an appeal is pending, the juvenile court is precluded from proceeding on matters other than expressly provided for in Neb.Rev.Stat. § 43-295 (Reissue 1993).

14. Jurisdiction: Appeal and Error. Where the court from which an appeal was taken lacked jurisdiction, the appellate court acquires no jurisdiction.

15. Jurisdiction: Appeal and Error. When an appeal is dismissed because the lower court lacked jurisdiction to enter the order appealed from, an appellate court lacks jurisdiction, but may nevertheless enter an order canceling the order issued by a lower court without jurisdiction.

16. Juvenile Courts: Parental Rights: Proof. At a detention hearing, 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.

17. Juvenile Courts: Parental Rights. Once a juvenile has been adjudicated, the juvenile court has broad discretion as to his or her disposition.

18. Parental Rights: Proof. The State is not required to prove harm to a child prior to intervention.

Julie A. Frank of Frank & Gryva, Omaha, for appellant.

Margaret A. Badura, Deputy Douglas County Attorney, and Christine P. Costantakos, guardian ad litem, for appellee.

MILLER-LERMAN, C.J., and IRWIN and MUES, JJ.

MUES, Judge.

I. INTRODUCTION

These appeals involve 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. The children's biological mother, Lona F., appeals from four separate orders regarding these children. Case No. A-94-1239 is an appeal from a preadjudication detention order entered by a separate juvenile court on behalf of Joshua. Case No. A-94-1240 involves an appeal from an order of the juvenile court removing T.J. and Amanda from Lona's home. Cases Nos. A-95-761 and A-95-762 involve appeals from two separately filed juvenile court proceedings collectively terminating Lona's parental rights to all of said children. All four matters were consolidated for appeal.

II. STATEMENT OF CASE

Lona gave birth to Gloria when Lona was age 13. Gloria's father, Walter R., was approximately 36 years old at the time. At age 15, Lona began living with Thomas M. and Barbara C. The three lived as one family, and Thomas fathered nine children between the two women, whom he referred to as his "shack jobs." Other than Gloria, Thomas is the biological father of all of the children involved herein. Lona describes her relationship with Thomas as "very abusive and ... different." Lona required hospital treatment as the result of Thomas' abuse on at least one occasion.

The initial petition regarding Gloria, Tabitha, T.J., and Amanda was filed on March 26, 1993, at which time the court ordered that immediate custody of the children be retained in the Department of Social Services (the Department). On June 8, Thomas was charged with two counts of first degree sexual assault on a child. These charges alleged that Thomas had sexually assaulted Gloria and a second child fathered by Thomas and born to Barbara.

By order filed August 23, 1993, Gloria, Tabitha, T.J., and Amanda were adjudicated to be within the meaning of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993), on the basis that Lona had failed to provide a healthy home environment. Joshua had not been born at this time. This order further retained temporary custody of the children with the Department for appropriate care and placement. By dispositional order dated October 5, 1993, the children were ordered to remain in the temporary custody of the Department and Lona was ordered to comply with a plan designed to correct the conditions leading to their adjudication. Among other things, she was ordered to avoid association with Thomas.

Lona was again ordered to refrain from any contact with Thomas by order of the court dated November 16, 1993. Following a review hearing on April 22, 1994, the court found it was not in the children's best interests to be returned to Lona's home and continued their temporary custody in the Department.

Thomas was found guilty by a jury on both counts of sexual assault on a child, and on September 23, 1994, was sentenced to 8 to 12 years' imprisonment on each count, to be served consecutively. These convictions were affirmed by this court in an unpublished opinion on October 24, 1995.

Following a review hearing on October 19, 1994, the court found that T.J. and Amanda should remain in the custody of the Department for appropriate care and placement to include the home of Lona and that Gloria and Tabitha should remain in foster care. At some point prior to the entering of this order, T.J. and Amanda had already been returned to Lona's home; however, their custody remained in the Department. The record does not disclose what precipitated the children's return to Lona's care.

The order of October 19, 1994, further ordered that Lona

[n]ot engage in any contact or communication or visitation in ANY FORM WHATSOEVER, (including but not limited to telephon[e] or letter) with Thomas ... and Lona [F.] shall not permit, allow, or in any manner facilitate any visitation, contact or communication in ANY FORM WHATSOEVER (including but not limited to telephone or letters) between Thomas ... father ... and [any] of the above-named minor children....

On December 6, 1994, the Department filed a motion for immediate temporary custody regarding T.J. and Amanda. By order dated December 6, 1994, the court found that pending further hearing, the need for placement and detention existed for the protection of T.J. and Amanda. The court entered a separate order for immediate temporary custody regarding Joshua on December 6. The Douglas County sheriff was therefore ordered to pick up the three children.

Also on December 6, a motion to terminate parental rights was filed in the pending juvenile proceedings regarding Gloria, Tabitha, T.J., and Amanda. In the motion, it was asserted that the children had been adjudicated within § 43-247(3)(a) and that the children were within Neb.Rev.Stat. § 43-292(6) (Reissue 1993) because, among other things, Lona had knowingly and intentionally defied court orders forbidding any contact and/or communication with Thomas. This motion was subsequently amended to include that Gloria and Tabitha were also within the meaning of § 43-292(7).

A petition for adjudication and termination of parental rights regarding Joshua was also filed on December 6 in a separate proceeding pertaining only to him. This petition alleged that Joshua was within the meaning of §§ 43-247(3)(a) and 43-292(6). This petition was later amended to allege that Joshua was also within the meaning of § 43-292(2).

Following a detention hearing, the court by order dated December 16, 1994, found it would be in the best interests of Gloria, Tabitha, T.J., and Amanda to place them in the temporary custody of the...