Interest of Tabatha R., In re
| Decision Date | 18 December 1998 |
| Docket Number | No. S-98-081,S-98-081 |
| Citation | 587 N.W.2d 109,255 Neb. 818 |
| Parties | In re Interest of TABATHA R., a child under 18 years of age. STATE of Nebraska, appellee and cross-appellee, v. RONDA R., appellant, and Ronald D., appellee and cross-appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Juvenile Courts: Appeal and Error. 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 give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over another.
2. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. A judicial determination made following an adjudication in a special proceeding which affects the substantial rights of parents to raise their children is a final, appealable order. A dispositional order imposing a rehabilitation plan for parents in a juvenile case is a final, appealable order.
3. Jurisdiction: Appeal and Error. Once an appeal has been perfected to an appellate court, the trial court is divested of its jurisdiction to hear a case involving the same matter between the same parties.
4. Parental Rights: Juvenile Courts. A dispositional order removing children from the care of parents and a subsequent proceeding adjudicating the termination of one parent's parental rights are both governed under the juvenile code and involve the same basic subject matter.
5. Parental Rights: Juvenile Courts: Proof. In order for a court to disapprove of a plan proposed by the Department of Health and Human Services, a party must prove by a preponderance of the evidence that the department's plan is not in the child's best interests.
6. Parental Rights. Although parental rights may not be terminated solely as the result of a parent's incarceration, incarceration and the parent's consequent unavailability are factors the court may consider in deciding whether or not to terminate the parent's rights. A parent's incarceration is a factor to consider in determining whether or not a rehabilitation plan should be adopted for that parent.
7. Parental Rights: Juvenile Courts. There is no requirement that the court must implement a rehabilitation plan for the parent of a child found to be dependent and neglected, and particularly if such a plan has very little chance of success and it would not be in the best interests of the child.
8. Juvenile Courts: Rules of Evidence. Strict rules of evidence do not apply at a dispositional hearing. Even though relaxed rules of evidence may be employed, the proceedings must still be fundamentally fair.
9. Actions: Appeal and Error. The law-of-the-case doctrine operates to preclude a reconsideration of substantially similar, if not identical, issues at successive stages of the same suit.
10. Trial: Evidence: Appeal and Error. An improper exclusion of evidence is ordinarily not prejudicial where substantially similar evidence is admitted without objection.
A. Michael Bianchi, Omaha, for appellant.
Regina T. Makaitis, Omaha, for appellee State.
Dean M. Johnson for appellee Ronald D.
Ronda R., natural mother of Tabatha R., appeals and Ronald D., natural father of the infant, cross-appeals, from a portion of a dispositional order filed by the juvenile court for Douglas County on December 22, 1997. The dispositional order directed that the infant remain in the custody of the Department of Health and Human Services (DHHS) for appropriate care and placement and adopted DHHS' recommendation that no rehabilitation plan be ordered for either parent. DHHS was previously known as the Department of Social Services, and for clarity, we refer to both as "DHHS" throughout this opinion. For the reasons cited below, we vacate and set aside the juvenile court's January 26, 1998, order requiring the Lincoln Regional Center to release the father's medical records, and we affirm the juvenile court's dispositional order dated December 22, 1997.
This is the second appearance of this case in this court. See In re Interest of Tabatha R., 252 Neb. 687, 564 N.W.2d 598 (1997) (Tabatha I ), amended by 252 Neb. 864, 566 N.W.2d 782 (1997). A detailed statement of facts is set forth in Tabatha I. The infant was born on December 29, 1995. Briefly summarized, on January 22, 1996, paramedics brought the infant to St. Joseph Hospital in Omaha. At that time, the infant was in full cardiac and pulmonary arrest.
On January 26, 1996, the juvenile court entered an emergency ex parte order, placing temporary custody of the infant in and with DHHS. Following a detention hearing, the court, without resistance from either parent, continued temporary custody in and with DHHS and authorized DHHS to consent to any medical, surgical, or psychiatric treatment which in the opinion of a licensed and practicing physician "may be necessary and in the best interest of" the infant.
Subsequently, on March 12, 1996, DHHS filed a "Notification of Informed Consent," advising the parents that it intended to direct St. Joseph Hospital to remove the infant from the "mechanical ventilator and all extraordinary life support" systems and to "not resuscitate" her. On March 15, the mother filed a motion with the juvenile court, requesting that the court enter an order staying DHHS from giving the instruction, which order the court granted after a hearing.
On April 29, 1996, the juvenile court held an adjudication hearing. On May 3, the court filed an order, concluding that, in accord with Neb.Rev.Stat. § 43-279.01(3) (Reissue 1993), the record established by a preponderance of the evidence that the infant was a child within its jurisdiction and that the evidence further established that it was in the infant's best interests that life support be discontinued and that the infant not be resuscitated, thereby assenting to DHHS' recommendation.
Subsequently, the mother appealed and the father cross-appealed. In an opinion dated June 20, 1997, this court reversed the juvenile court's order and remanded the cause for further proceedings, holding that the juvenile court erred in assenting to DHHS' determination to withdraw life support measures from the infant and to not resuscitate her. Tabatha I. This court stated that DHHS' determination to withdraw life support systems from the infant and to not resuscitate her was likely to result in the infant's death, essentially severing the relationship between the infant and the parents and was functionally equivalent to a termination of the parents' parental rights. This court held that the juvenile court had not found, by clear and convincing evidence, as required, that the parents' parental rights should be terminated.
In Tabatha I, the evidence showed that the infant had been in the sole custody of the parents prior to her injuries and we concluded:
Although the admissible evidence is not without conflict, we independently find, on de novo review of the record, that under any civil standard of proof, the record establishes that the infant's condition is the result of her having sustained severe brain injury as the consequence of having been vigorously shaken, not, as the parents suggest, as the result of respiratory syncytial viral disease, the method in which she was resuscitated, or any other cause.
252 Neb. at 694, 564 N.W.2d at 604.
Additionally, we noted, "Although there is some conflict in the admissible medical evidence, we independently find, on de novo review of the record, that under any civil standard of proof, the record establishes that the infant is irreversibly comatose and in a persistent vegetative state." Id. at 693, 564 N.W.2d at 603.
Subsequently, the State filed a motion for rehearing, claiming that this court had not expressly ruled that the juvenile court correctly adjudged the infant to be within its jurisdiction, pursuant to Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993), as a juvenile lacking proper parental care by reason of the fault or habits of her parents.
In a supplemental opinion dated July 25, 1997, this court overruled the State's motion and amended its conclusion in Tabatha I to state:
For the foregoing reasons, we affirm the judgment of the juvenile court that notice, service, and jurisdiction were proper and that Tabatha R. is a juvenile within the meaning of § 43-247(3)(a); but we reverse the remainder of the judgment of the juvenile court and remand the cause for further proceedings consistent with this opinion.
252 Neb. at 865, 566 N.W.2d at 782.
On June 23, 1997, after the release of our original opinion, but before the filing of the mandate in the juvenile court, the juvenile court, on its own motion, set the matter for disposition.
On August 7, 1997, the State filed a motion requesting psychological evaluations of both parents, and after a hearing, the juvenile court granted the State's motion.
The dispositional phase of these juvenile court proceedings occurred in two separate hearings. It began on October 21, 1997, and it concluded in a hearing conducted on December 22. Both the parents were present in person at each of these hearings, with counsel. At the December 22 hearing, each parent appeared with an attorney guardian ad litem and each was represented by her or his trial counsel. A guardian ad litem was also present on the infant's behalf at each hearing.
Before allowing the presentation of evidence at the October 21, 1997, hearing, the juvenile court first addressed the State's suggestion that the dispositional hearing was unnecessary. Counsel for the State noted that it had filed a motion to terminate the parents' parental rights earlier that same day. In that motion, pursuant to Neb.Rev.Stat. § 43-292(5) (Reissue 1993), the State alleged that both the parents are unable...
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