Interest of Teela H., In re
| Decision Date | 28 March 1995 |
| Docket Number | No. A-94-758,A-94-758 |
| Citation | 529 N.W.2d 134,3 Neb.App. 604 |
| Parties | In re Interest of TEELA H., a Child Under 18 Years of Age. STATE of Nebraska, Appellee, v. KATHY H., Appellant. |
| Court | Nebraska Court of Appeals |
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.
2. Judgments: Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of the conclusion of the trial court.
3. Jurisdiction: Time: Appeal and Error. The timeliness of an appeal is a jurisdictional necessity and may be raised by an appellate court sua sponte.
4. Final Orders. An unfiled letter from the court is not the equivalent of an oral pronouncement of judgment in open court.
5. Judgments. A judgment's meaning is determined, as a matter of law, by the contents of the judgment in question.
6. Parental Rights. Neb.Rev.Stat. § 43-285 (Reissue 1993) does not authorize the Department of Social Services or any other third party to determine or place restrictions on parental visitation rights.
Byron M. Johnson, Scotts Bluff County Public Defender, and W.E. Madelung, for appellant.
Deborah A. Birgen, Deputy Scotts Bluff County Atty., for appellee.
Michelle M. Dreibelbis, guardian ad litem.
Before IRWIN and MILLER-LERMAN, JJ., and MORAN, District Judge, Retired.
Kathy H. appeals the orders of the county court for Scotts Bluff County, Nebraska, sitting as a juvenile court, terminating unsupervised visitation with her child, Teela H., at Kathy's residence in Cheyenne, Wyoming; denying her motion to return custody of Teela to her; and granting her supervised visitation in Scottsbluff, Nebraska, "as recommended by Dr. [James] Sorrell." For the reasons hereafter stated, we dismiss in part, in part reverse, and remand with directions.
Kathy H. is the natural mother of Teela H., born December 29, 1991. A deputy Scotts Bluff County Attorney filed a petition on June 3, 1992, alleging that Teela lacked proper parental care under Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993) by reason of the fault or habits of Kathy. Teela was ordered to remain in the temporary custody of the Department of Social Services (DSS). After a July 14, 1992, hearing on Kathy's motion for temporary custody, Teela was returned to Kathy on a trial basis pending further hearing. On August 14, Teela was returned to the temporary custody of DSS. Subsequently, Kathy moved to live with her boyfriend in Cheyenne, Wyoming, where she continues to reside.
On August 28, 1992, an adjudication hearing was held on the juvenile petition, at which time Kathy pled the equivalent of a no contest plea to the allegations. The court found Teela to be a juvenile within the meaning of § 43-247(3)(a) and placed her in the custody of DSS.
At an October 22, 1992, dispositional hearing, the court adopted DSS' case plan of October 21, 1992, and ordered Kathy to comply with the plan. The October 21 plan had two parts. The first part set a target date of February 1993 to establish Dave and Nancy C. as guardians for Teela. The guardianship was supported by Kathy, Dave and Nancy, and DSS. The second part was a rehabilitative plan in the event Kathy changed her mind about the guardianship. It established the following goals: Kathy was to remain sober, she was to attend two Alcoholics Anonymous (AA) meetings each month, she was to meet with an alcohol counselor, she was to complete a parenting class, she was to obtain her GED, and she was to attend individual counseling to deal with her background of being an abused child. The court also ordered unsupervised visitation of two weekends per month.
Prior to December 1993, Kathy was averaging one visit per month and had also had one full-week visit in Cheyenne and three overnight visits in Scottsbluff and had maintained regular phone contact with Dave and Nancy. From December 1993 to April 1994, Kathy continued to visit Teela in Scottsbluff, and Teela went to Cheyenne on a couple of occasions.
At some point in December 1993, Kathy decided that she wanted to regain custody of Teela. At that time, the court apparently ordered visitation every weekend with Kathy in Cheyenne and that Kathy comply with the rehabilitative plan. This plan involved alcohol evaluations of Kathy and her boyfriend, parenting classes, the completion of a home study by the Wyoming Department of Social Services, and Kathy's cooperation with that department in Wyoming and DSS in Nebraska.
On November 29, 1993, Kathy filed a motion to return custody of Teela to her. On February 11, 1994, a hearing was held on Kathy's motion. The court took this matter under advisement and later, according to a February 17, 1994, letter, intended to overrule it.
On July 8, 1994, a review hearing was held. According to the testimony at trial, Kathy was attempting to comply with the rehabilitative plan. Kathy had completed parenting classes. Kathy was attending AA meetings, family dysfunction counseling, additional parenting classes, and college-level courses at a local junior college. Kathy's boyfriend had received an alcohol evaluation which indicated that he did not have an alcohol problem. Melody Wilson, a social worker in Cheyenne, testified that she had completed a home study report and found Kathy's home and family appropriate. Wilson recommended reunification.
According to the record, in May 1994, about 1 month after the weekly weekend visits to Cheyenne began, Teela, age 2 years, began exhibiting behavioral problems. Teela seemed angry and was kicking, spitting at, and hitting people. Teela refused to associate with the people who normally took her to Cheyenne. On Thursday nights before visitation, Teela would become very agitated, angry, and "clingy" to Nancy.
On June 6, 1994, Dr. James Sorrell, a psychiatrist, examined Teela. He diagnosed Teela as suffering from severe separation anxiety. In a letter dated July 6, 1994, that was offered and received at trial, Dr. Sorrell opined that Teela was emotionally attached to Dave and Nancy and was reacting to the threatened loss of this relationship. He made the following recommendations: The weekend visits should be terminated, Kathy should be granted supervised visitation with Teela in Scottsbluff, and Teela should continue to receive counseling from Dr. Sorrell and Ellen Jensen, a play therapist.
According to the record, Jensen had met with Teela for nine sessions. Jensen felt that Teela was emotionally invested in Dave and Nancy and overtly neutral with respect to Kathy. Jensen opined that Teela fears that Dave and Nancy, her parent figures, will be taken from her, and Teela is angry, sad, and frustrated.
Kelly Case, the DSS social worker assigned to this case, testified that she still recommended the completion of the guardianship with Dave and Nancy. She stated that this recommendation was based upon Teela's anxiety disorder and the period of time she has been in the care of Dave and In a journal entry filed August 2, 1994, the county court ordered that the unsupervised weekend visits to Kathy's residence in Cheyenne be terminated and that "visitation by the mother of the juvenile be held in Scottsbluff, Nebraska and shall be supervised by the Department of Social Services as recommended by Dr. Sorrell." This appeal followed.
Nancy, not Kathy's failure to comply with the plan. Case testified that since approximately January 1994, Kathy had complied with most of the recommendations in the rehabilitative plan. In the event that reunification remained the goal, Case testified that she would ask Dr. Sorrell to develop a plan indicating what he sees as timeframes for Kathy's visits with Teela and therapy sessions with the doctor and Teela.
Kathy asserts the following: (1) The juvenile court abused its discretion when it denied her motion to return custody despite the completion of the conditions set forth in the rehabilitative plan, (2) the juvenile court violated her due process rights by failing to return Teela to her custody and by not setting conditions by which a return may be effected and that were within her ability to perform, and (3) the juvenile court improperly delegated its authority to determine parental visitation rights.
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. In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994).
Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of the conclusion of the trial court. Lindsay Mfg. Co. v. Universal Surety Co., 246 Neb. 495, 519 N.W.2d 530 (1994); In re Interest of Kelly D., 3 Neb.App. 251, 526 N.W.2d 439 (1994).
Letter Ruling from the Court Dated February 17, 1994.
The first two assignments of error concern the February 17, 1994, letter that "overruled" Kathy's motion to return custody. We lack jurisdiction to entertain an appeal regarding the first two assigned errors for the following reasons.
The timeliness of an appeal is a jurisdictional necessity and may be raised by an appellate court sua sponte. In re Interest of J.A., 244 Neb. 919, 510 N.W.2d 68 (1994). Neb.Rev.Stat. § 25-2729 (Cum.Supp.1994) requires that
[i]n order to perfect an appeal from the county court, the appealing party shall within thirty days after the rendition of the judgment or making of the final order complained of:
(a) File with the clerk of the county court a notice of appeal; and
(b) Deposit with the clerk of the county court a docket fee....
Section 25-2729(3) states:
The time of rendition of a judgment or making of a final order is the time at which the action of the judge in announcing the judgment or final order is noted...
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