Interest of R.G., In re

• Decision Date: 14 June 1991
• Docket Number: No. 90-942,90-942
• Citation: 470 N.W.2d 780,238 Neb. 405
• Parties: In re Interest of R.G., a ChildUnder 18 Years of Age. STATE of Nebraska, Appellee, v. L.G.P., Appellant.
• Court: Nebraska Supreme Court

Page 780

470 N.W.2d 780

238 Neb. 405

In re Interest of R.G., a ChildUnder 18 Years of Age STATE of Nebraska, Appellee, v. L.G.P., Appellant.

No. 90-942.

Supreme Court of Nebraska.

June 14, 1991.

Syllabus by the Court

1. Rules of the Supreme Court: Records: Appeal and Error. A document entitled "bill of exceptions," but which is not prepared in accordance with the rules of the Nebraska Supreme Court is not such a bill; the filing of an improperly prepared document in the nature of a bill of exceptions may result in a case being treated as if no bill had been filed.

2. Trial: Records: Liability. A court reporter's breach of duty may give rise to civil liability.

3. Supreme Court: Jurisdiction: Appeal and Error. The Nebraska Supreme Court is without jurisdiction to entertain appeals from nonfinal orders.

4. Final Orders. Neb.Rev.Stat. § 25-1902 (Reissue 1989) describes three types of order as final: (1) one affecting a substantial right in an action and which in effect determines the action and prevents a judgment; (2) one affecting a substantial right made in a special proceeding; and (3) one affecting a substantial right made upon a summary application in an action after judgment.

5. Constitutional Law: Parental Rights. Parents have a recognized liberty interest in raising their children.

6. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. An ex parte temporary detention order keeping a juvenile's custody from his or her parent for a short period of time pending a hearing as to whether the detention should be continued is not final; however, a detention order entered after a hearing continuing to keep a juvenile's custody from his or her parent pending an adjudication hearing to determine whether the juvenile is neglected, and thus within the purview of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1988), is final and thus appealable.

7. Appeal and Error. Errors assigned but not discussed will not be considered on appeal.

8. Constitutional Law: Due Process. When examining a claim that one is being deprived of a liberty interest without due process of law, a three-stage analysis is employed: The question in the first stage is whether there is a protected liberty interest at stake. If so, the analysis proceeds to the second stage, in which it is determined what procedural protections are required. Upon the resolution of that issue, the analysis moves on to the third and final stage, in which the facts of the case are examined to ascertain whether there was a denial of that process which was due.

9. Juvenile Courts: Parental Rights: Affidavits: Records: Notice. The information upon which the State seeks an ex parte temporary detention order under the provisions of Neb.Rev.Stat. § 43-250 (Reissue 1988) shall be contained in the affidavit of one who has knowledge of the relevant facts; such affidavit shall be presented to the juvenile court and made a part of the record of the proceedings, and the affected juvenile's parent shall be given prompt notice of the order.

10. Juvenile Courts: Jurisdiction. The State's failure to comply with the statutory requirements relating to the entry of an ex parte temporary detention order under the provisions of Neb.Rev.Stat. § 43-250 (Reissue 1988) does not deprive the juvenile court of jurisdiction.

11. Juvenile Courts: Parental Rights: Rules of Evidence. At a hearing to determine who shall have custody of a juvenile pending an adjudication, Neb.Rev.Stat. § 43-283 (Reissue 1988) applies, and relaxed rules of evidence may be followed.

12. Rules of Evidence: Due Process. In circumstances whereunder relaxed rules of evidence may be employed, due process requires that the proceedings be fundamentally fair.

13. Juvenile Courts: Appeal and Error. The Nebraska Supreme Court reviews appeals from juvenile proceedings de novo on the record and is required to reach a conclusion independent of the juvenile court's findings; provided, however, that where the evidence conflicts, this court considers and may give weight to the juvenile court's observation of the witnesses and acceptance of one version of facts over another.

14. Guardians Ad Litem. A guardian ad litem has the authority to present evidence and witnesses, to cross-examine witnesses at all evidentiary hearings, and to argue.

15. Juvenile Courts: Parental Rights: Proof. The State must prove by a preponderance of the evidence that the custody of an alleged dependent or neglected juvenile should be in the Department of Social Services pending adjudication.

Connie Kearney, for appellant.

James S. Jansen, Douglas County Atty., and Elizabeth G. Crnkovich, for appellee.

Regina T. Makaitis, Asst. Douglas County Public Defender, guardian ad litem.

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

CAPORALE, Justice.

I. INTRODUCTION

Finding that pending investigation the temporary placement of the infant girl, R.G., was a matter of immediate and urgent necessity, the juvenile court, on August 10, 1990, ordered, ex parte, that the Nebraska Department of Social Services take custody of the infant but that custody be returned to her parents unless, within "eight judicial days," a petition was filed requesting continued detention. Seven calendar days presumably five judicial days) later, on August 17, 1990, the State of Nebraska filed a petition seeking further orders concerning the infant's custody. Following a hearing on August 24, 1990, at which the appellant mother, L.G.P., appeared, the juvenile court, on August 27, 1990, ordered that the infant's custody be continued in the department. The mother, and she only, has undertaken an appeal of both orders, claiming, in summary, that the juvenile court (1) erred in asserting jurisdiction because of myriad alleged federal and state constitutional violations in connection with both orders, as well as violations of state statutes in the entry of the ex parte order, (2) erred in its evidential rulings, (3) erred in permitting the participation of the infant's guardian ad litem in prosecuting the State's petition, and (4) erred in ordering that, pending an adjudication hearing, temporary custody of the infant remain in the department. The State claims we lack jurisdiction to consider this appeal, as the orders involved are not final. We conclude this court has jurisdiction as a result of the detention order of August 27, and affirm.

II. PRACTICE CAUTION

Before proceeding further, we call attention to the fact that all bills of exceptions filed in this court, from whatever tribunal, are to conform to the requirements of the rules hereinafter cited. These rules dictate, among other things, that the full name of each witness and the nature of the examination undergone be stated at the top of each page of the witness' testimony. Neb.Ct.R. of Prac. 5F(3) and I (rev. 1989) and Neb.Ct.R. of Official Ct. Rptrs. 19f(3) and i (rev. 1989). The tops of the pages of the document filed as the bill of exceptions in this case reflect neither the name of the witness nor the type of examination involved.

We once again caution that a document entitled "bill of exceptions," but which is not prepared in accordance with our rules, is not such a bill and that the filing of an improperly prepared document in the nature of a bill of exceptions may result in a case being treated as if no bill had been filed. Langness v. "O" Street Carpet Shop, 217 Neb. 569, 353 N.W.2d 709 (1984). The fact that in order to properly review this case we have taken the time to continually flip back and forth through the relatively short record of the August 24 hearing is not to be taken as an indication that we shall undertake the same task in future cases.

It also may be worth recalling that a court reporter's breach of duty may give rise to civil liability. State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990).

III. FACTS

The record does not reflect what information, if any, the juvenile court had before it when it entered the ex parte temporary detention order of August 10. The August 17 petition leading to the August 24 hearing and subsequent August 27 detention order alleges that pursuant to the provisions of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1988), the juvenile court has jurisdiction over the infant because she lacked proper parental care by reason of the faults or habits of the mother. More specifically, it alleges that on three occasions since May 1990, the infant had been observed to have black eyes, which occurred while she was under the mother's care and custody, and that the mother continued to use alcohol and drugs to the extent that her parenting abilities were impaired.

Although the record does not reflect when the mother first received summons in these proceedings, which involve only the infant, the evidence adduced at the August 24 hearing establishes that the infant is the youngest of four children born to the mother and that she visited her children, all of whom appear to be in the department's custody, between August 10 and 24. The evidence further reflects that on the morning of the day on which the ex parte temporary detention order was issued, the mother, who is single, took her then 1-year-10-month-old daughter and the then 9-month-old infant to a day-care facility. In her absence she left her son, then 8 years 9 months old, to watch her third daughter, then 3 years 6 1/2 months old.

The mother testified that she returned home for a short time after taking her two daughters to the day-care facility, only to leave again upon finding that her son was watching a movie and that her remaining daughter was asleep. Prior to leaving the second time, the mother instructed her son to keep the doors locked and to escort the remaining daughter to the day-care facility when she awoke.

According to the mother, she was gone for approximately 2 1/2 hours, returning home at about 11:10 a.m. Upon her return, she found attached to her door a handwritten...