Interest of L.W., In re

• Decision Date: 24 July 1992
• Docket Number: No. S-91-751,S-91-751
• Parties: In re Interest of L.W., a child under 18 years of age. STATE of Nebraska, Appellee, v. T.W., Appellant.
• Court: Nebraska Supreme Court

Page 486

486 N.W.2d 486

241 Neb. 84

In re Interest of L.W., a child under 18 years of age.

STATE of Nebraska, Appellee, v. T.W., Appellant.

No. S-91-751.

Supreme Court of Nebraska.

July 24, 1992.

Syllabus by the Court

1. Juvenile Courts: Final Orders: Appeal and Error. On appeal of any final order of a 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 another.

2. Judgments: Appeal and Error. In the absence of a judgment or order finally disposing of a case, the Supreme Court has no authority or jurisdiction to act, and in the absence of such judgment or order the appeal will be dismissed.

3. Final Orders: Words and Phrases. To be final, an order must dispose of the whole merits of the case and must leave nothing for the further consideration of the court. Thus, when no further action of the court is required to dispose of a pending cause, the order is final. However, if the cause is retained for further action, the order is interlocutory. Furthermore, if a party's substantial rights are not determined by the court's order and the cause is retained for further action, the order is not final.

4. Juvenile Courts: Child Custody: Parental Rights: Jurisdiction: Appeal and Error. Where the juvenile court by its order refuses to stay proceedings under the Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. § 43-1201 et seq. (Reissue 1988), and pursues a plan which calls for the eventual custody of the child with one parent, that order is tantamount to a permanent denial of the other parent's parental rights in the child and therefore is appealable, and an appellate court does have jurisdiction to address the merits of the case.

5. Juvenile Courts: Child Custody: Jurisdiction. The Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. § 43-1201 et seq. (Reissue 1988), gives jurisdiction to the juvenile court over dependency proceedings.

6. Juvenile Courts: Child Custody: Jurisdiction: Abandonment. Neb.Rev.Stat. § 43-1203(1)(c) (Reissue 1988) of the Nebraska Child Custody Jurisdiction Act permits a juvenile court to assume jurisdiction of a child who is physically present in this state and (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. Physical presence in this state of the child is alone sufficient to confer jurisdiction on a court to make a child custody determination under § 43-1203(1)(c) and (2).

7. Courts: Child Custody: Jurisdiction. The emergency jurisdiction provisions of the Uniform Child Custody Jurisdiction Act retain and reaffirm parens patriae jurisdiction, which a court must assume when a child is in a situation requiring immediate protection. This concept signifies a philosophy whereby the State has a responsibility to act as a "superparent."

8. Child Custody: Jurisdiction: States. Exclusive continuing jurisdiction under the Uniform Child Custody Jurisdiction Act is not affected by the child's residence in another state for 6 months or more. Although the new state becomes the child's home state, significant connection jurisdiction continues in the state of the prior decree where the court record and other evidence exists and where one parent or another contestant continues to reside. Only when the child and all parties have moved away is deference to another state's continuing jurisdiction no longer required.

9. Child Custody: Jurisdiction: States. The notion of continuing jurisdiction is in accord with the purpose of the Uniform Child Custody Jurisdiction Act to achieve greater stability of custody arrangements and to avoid forum shopping.

10. Child Custody: Jurisdiction: States. Where a grave emergency exists affecting the immediate needs and welfare of the child, a court may enter appropriate orders for the protection of the child present in that state even if its orders contravene those of a sister state that still retains jurisdiction over custody.

11. Child Custody: Modification of Decree: Jurisdiction: States. The special power to take protective measures under the Uniform Child Custody Jurisdiction Act does not encompass jurisdiction to make permanent custody determinations or to modify the custody decree of a court with continuing jurisdiction. Emergency jurisdiction confers authority to make temporary orders, including temporary custody for a limited period of time, pending proceedings in the state with regular jurisdiction under the act.

12. Child Custody: Modification of Decree: Jurisdiction: States. When another state has entered a child custody decree and one of the parents remains a resident of that state, generally the courts of this state are without jurisdiction to make a permanent change of custody unless the first state affirmatively declines jurisdiction or fails to take appropriate action.

13. Pleadings: Child Custody: Jurisdiction. If a party fails to file the information required by Neb.Rev.Stat. § 43-1209 (Reissue 1988), the court cannot exercise jurisdiction in conformance with the Nebraska Child Custody Jurisdiction Act.

14. Pleadings: Child Custody: Appeal and Error. Failure to comply with the pleading requirements of Neb.Rev.Stat. § 43-1209 (Reissue 1988) in a dependency proceeding may constitute harmless error, which can be cured by the juvenile court.

15. Juvenile Courts: Child Custody: Jurisdiction: Appeal and Error. It is error for the juvenile court in the first instance to fail to determine whether it had jurisdiction under the Nebraska Child Custody Jurisdiction Act. However, this error does not deprive the court of emergency jurisdiction.

16. Federal Acts: Child Custody: Visitation: Words and Phrases. According to 28 U.S.C. § 1738A(b)(2) (1988) of the federal Parental Kidnaping Prevention Act, a "contestant" is a person, including a parent, who claims a right to custody or visitation of a child, but a state, acting in the role of parens patriae, does not fit within that definition.

William J. Erickson, Custer County Public Defender, for appellant.

Glenn A. Clark, Custer County Atty. and Howard W. Spencer, guardian ad litem, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

This is a juvenile case in which a petition was filed in the juvenile court of Custer County by the county attorney on April 5, 1989. It alleged that the child, L.W., was in a situation injurious to her morals for the reason that between January 1 and April 5, 1989, said child, residing within Custer County, was subjected to an act of sexual penetration by her stepfather while the child was in the custody of her mother and stepfather. The State asked that the child be adjudicated a juvenile within the provisions of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1988) and that she be cared for and protected according to law.

On the same day the petition was filed, a motion was also filed which showed that the juvenile had been taken into protective custody under the provisions of Neb.Rev.Stat. § 43-248 (Reissue 1988) and placed with the Nebraska Department of Social Services (DSS), pursuant to Neb.Rev.Stat. § 43-250(4) (Reissue 1988). The motion also requested a hearing pursuant to Neb.Rev.Stat. § 43-253 (Reissue 1988). Again on the same day, with the mother present in court, an order awarding temporary custody to DSS was entered. A guardian ad litem was appointed for the child.

A further hearing was held on April 11, 1989, at which hearing counsel was appointed for the mother and an adjudication hearing was set for May 9. The hearing was in fact held on May 15, 1989, and the order entered recited that the "father" waived appearance, the mother appeared with counsel, and the mother and the juvenile admitted the allegations. The court determined there was a factual basis for the admissions, and an adjudication was entered accordingly. The case then proceeded immediately to a dispositional hearing, at which the court continued custody in DSS, terminated a previous support order entered against the mother, and set the matter for a review hearing on November 6, 1989.

A review hearing was in fact held on November 13, 1989, with the mother and her counsel and the natural father appearing, at which evidence was adduced and the court ordered that custody continue in DSS. It also recommended placement of the child in a foster home and ordered DSS to submit a plan within 30 days.

On May 21, 1990, a review hearing was held, attended by the mother and her counsel. A case plan was filed with the court, to which the mother objected. The hearing was continued to July 10, and the court made temporary findings that reasonable efforts had been made to eliminate the need for removal of the child from her family home, but that such efforts had failed and that return of the child to her family home would be contrary to the welfare of the child.

A review hearing was held on July 23, 1990, with the mother and her counsel present. The mother objected to the case plan, the court ordered the plan be adopted, and, on motion, the stepfather was dismissed from the proceedings. A review hearing was set for January 8, 1991.

At a review hearing held on January 15, the mother's counsel was permitted to withdraw and the public defender was appointed in his stead to represent the mother. At that hearing, the record indicates no objection to the case plan. Further hearing was set for July 15, 1991.

On March 5, 1991, a pleading entitled "Objection to Plan" was filed, in which it was alleged by the mother through her counsel that the pleadings required by "N.R.S. Section...