State ex rel. Casselman v. Macken, 39890

• Decision Date: 11 December 1975
• Docket Number: No. 39890,39890
• Parties: The STATE of Nebraska ex rel. Tom CASSELMAN and Redean Casselman, Appellant, v. James L. MACKEN, County Judge, et al., Appellees. The STATE of Nebraska ex rel. Tom CASSELMAN and Redean Casselman, husband and wife, Appellant, v. Otis TWIDELL, Nebraska Childrens Home Society, a corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 867

235 N.W.2d 867

194 Neb. 806

The STATE of Nebraska ex rel. Tom CASSELMAN and Redean Casselman, Appellant, v. James L. MACKEN, County Judge, et al., Appellees.

The STATE of Nebraska ex rel. Tom CASSELMAN and Redean Casselman, husband and wife, Appellant, v. Otis TWIDELL, Nebraska Childrens Home Society, a corporation, et al., Appellees.

No. 39890.

Supreme Court of Nebraska.

Dec. 11, 1975.

Syllabus by the Court

1. Habeas corpus is a collateral proceeding and cannot be used as a substitute for an appeal.

2. In Nebraska every dispositive order in a juvenile proceeding that rests on an adjudication of delinquency is an appealable order.

3. The proceedings leading to a final judgment or order in the juvenile court cannot be inquired into on a collateral attack such as habeas corpus but are assailable only in a direct proceeding.

4. A collateral attack upon a judgment will not lie unless the judgment is absolutely void. Where the court has jurisdiction of the parties and the subject matter, its judgment is not subject to collateral attack because the judgment is only voidable and not void.

5. This court will refuse to pass upon the constitutionality of a statute or a rule promulgated by a court unless it is necessary for a proper disposition of an action pending in this court.

Bertrand V. Tibbels, Scottsbluff, for appellant.

Leonard G. Tabor, II, Gering, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

McCOWN, Justice.

The plaintiffs have appealed from an order of the District Court dismissing both a petition for a writ of habeas corpus and a petition for a writ of mandamus. The habeas corpus action sought the return or plaintiffs' son who had been placed in a foster home by other of a juvenile court. The mandamus action sought to compel the county court to furnish the plaintiffs, as a part of a transcript, certain reports received by the court which were designated by statute as privileged reports. The cases were combined for trial and appeal.

In November 1973, a juvenile court petition was filed alleging that plaintiffs' 15-year-old son, George Casselman, was a 'child in need of special supervision.' The proceeding was based upon the charge that on October 31, 1973, George was a minor in possession of liquor. On November 14, 1973, hearing was held on the petition. The parents were present with their son. He admitted the allegations and the court entered judgment finding that George Casselman was a child in need of special supervision. The court continued the dispositional portions of the hearing to a later date. On January 4, 1974, with all parties present, the matter came on for dispositional hearing. The court ordered plaintiffs' son to continue to reside in the plaintiffs' home subject to the supervision of the probation office, and ordered the dispositional portion of the hearing continued until the further order of the court.

On January 31, 1974, a juvenile court petition supplement was filed charging that George Casselman was a child in need of special supervision and delinquent by reason of an assault by him on January 19, 1974, on a named individual. The assault also constituted a violation of his probation under the order of January 4, 1974. On March 14, 1974, hearing was had on the supplemental petition. George and the plaintiffs were again present with retained counsel. The juvenile, by his counsel, admitted the allegations of the petition. The court entered judgment finding George Casselman to be a child in need of special supervision. On April 3, 1974, all parties and their counsel were again present and the case came on for dispositional hearing. The court ordered that until further order of the court, George Casselman be placed in a foster home. The order directed that he be placed in the care, custody, and control of the Scotts Bluff County division of public welfare, with joint supervision of the probation officer, and set conditions and restrictions on his conduct. The order provided that if the terms and conditions of the orders were not met, the case would be subject to review and further action by the court.

On June 14, 1974, a social service worker filed an affidavit alleging various acts of misconduct and violation of the conditions of the order of April 3, 1974, by the juvenile; that the foster parents were unwilling to have him return to their home; and that it was necessary to have him placed in juvenile detention facilities. The court on that date ordered the juvenile detained in the juvenile detention facilities in Scottsbluff. On June 17, 1974, the court ordered that the juvenile be placed in the Nebraska Children's Home Society with care, custody, and control under the Scotts Bluff County division of public welfare, with joint supervision with the probation office.

On August 22, 1974, a motion was filed in the juvenile court proceedings by plaintiffs to set aside the judgments and orders previously entered on the ground that they were wholly void because the juvenile statutes were unconstitutional in that they deprived plaintiffs of the custody of their child without fault on their...