State v. Gary D. (In re Karlie D.), S–11–616.
| Citation | 811 N.W.2d 214,283 Neb. 581 |
| Decision Date | 23 March 2012 |
| Docket Number | No. S–11–616.,S–11–616. |
| Parties | In re Interest of KARLIE D., a child under 18 years of age.State of Nebraska, appellant, v. Gary D., appellee,andMartha D., intervenor-appellee. |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Juvenile Courts: Evidence: 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 juvenile court's findings. However, when the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other.
2. Juvenile Courts: Jurisdiction: Appeal and Error. In juvenile cases, as elsewhere, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.
3. Juvenile Courts: Adoption: Child Custody. A juvenile court, except where an adjudicated child has been legally adopted, may always order a change in the juvenile's custody or care when the change is in the best interests of the juvenile.
4. Final Orders: Appeal and Error. Under Neb.Rev.Stat. § 25–1902 (Reissue 2008), the three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.
5. Final Orders: Words and Phrases. A substantial right is an essential legal right, not a mere technical right.
6. Final Orders: Appeal and Error. A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which the appeal is taken.
7. Juvenile Courts: Final Orders: Constitutional Law: Parent and Child. The substantial right of a parent in juvenile proceedings is a parent's fundamental, constitutional right to raise his or her child.
8. Juvenile Courts: Words and Phrases. The State's right in juvenile cases is derived from its parens patriae interest in the proceedings. This means, in essence, that the State has a right to protect the welfare of its resident children.
9. Juvenile Courts: Jurisdiction. The purpose of the adjudication phase of a juvenile proceeding is to protect the interests of the child. This same purpose forms the foundation for the State's parens patriae interest; thus, once the child is adjudicated, the State's interest in protecting the child becomes greater and more necessary.
10. Statutes: Time. Procedural amendments to statutes are ordinarily applicable to pending cases, while substantive amendments are not.
11. Statutes: Words and Phrases. A procedural amendment simply changes the method by which an already existing right is exercised, while a substantive amendment creates a right or remedy which did not previously exist.
12. Juvenile Courts: Minors. The foremost purpose and objective of the Nebraska Juvenile Code is to promote and protect the juvenile's best interests, and the code must be construed to assure the rights of all juveniles to care and protection.
13. Juvenile Courts: Jurisdiction: Child Custody. Once a child has been adjudicated under Neb.Rev.Stat. § 43–247(3) (Reissue 2008), the juvenile court ultimately decides where a child should be placed. Juvenile courts are accorded broad discretion in determining the placement of an adjudicated child and to serve that child's best interests.
14. Juvenile Courts: Child Custody. The Nebraska Juvenile Code clearly expresses a preference for placement with blood relatives.
Donald W. Kleine, Douglas County Attorney, Amy Schuchman, and Sarah Breen, Senior Certified Law Student, for appellant.
Christine P. Costantakos, Omaha, for intervenor-appellee.
The issue in this case is where Karlie D., a minor child, should live. Karlie's mother voluntarily relinquished her parental rights to Karlie. While termination proceedings against the biological father were pending, he died. The Nebraska Department of Health and Human Services (Department) placed Karlie in foster care. But Karlie's paternal grandmother, Martha D., moved to have Karlie placed with her and her husband and to become Karlie's guardian. The juvenile court adopted a transition plan, against the Department's recommendation, which permanently moved Karlie to live with her grandparents. Because the court's order affected a substantial right of the State, the order was final and appealable. And because Martha is fully capable of caring for Karlie, has established a relationship with her, and is her grandmother, we conclude it is in Karlie's best interests to be placed with Martha. We affirm.
Karlie was born in August 2007 to Kara B. The State immediately petitioned the juvenile court to adjudicate Karlie, and moved for her to be placed in the Department's temporary custody, because Karlie tested positive for drugs at birth. The juvenile court granted temporary custody of Karlie to the Department, who placed her in foster care a few days after her birth. At the time, the father's identity was unknown.
On September 10, 2007, Gary D. moved to intervene in the proceedings, claiming that he was Karlie's father. Gary also asked for Karlie to be placed with him. The juvenile court adjudicated Karlie under Neb.Rev.Stat. § 43–247(3)(a) (Cum.Supp.2006), with temporary custody to remain with the Department. The juvenile court ordered that Karlie remain in the Department's custody, and thus with her foster parents, because Gary had not yet established that he was Karlie's father. However, Gary was granted visitation, and Martha would sometimes get to accompany Gary during his visits.
Following a positive paternity test and in light of successful supervised visitation, the juvenile court placed Karlie with Gary in August 2008. At the time, Gary was working second shift, from 3 p.m. to 1:30 a.m., 6 days a week. He was unable to find a daycare which was open until 2 a.m., so he arranged for Martha to watch Karlie while he was at work. The Department knew of this arrangement and approved it. If the weather was poor, Karlie would stay overnight at Martha's home. The Department never expressed any concern over Karlie's staying with Martha.
On March 23, 2009, the Department discovered that Gary had tested positive for methamphetamines. A test of Karlie's hair also came back positive for methamphetamines. Karlie's first caseworker asked Martha whether it would be all right if Karlie stayed with her for a few days until a safety assessment could be completed. Martha said yes. Gary likewise agreed to this arrangement, and Karlie was sent to live with Martha on a temporary basis.
But just a few days later, on March 26, 2009, the Department removed Karlie from Martha's home and placed her back with her foster parents. Karlie's current caseworker testified that the Department removed Karlie from Martha's home because of the earlier positive drug tests. But Martha testified that the Department removed Karlie because it had received a call accusing Karlie's uncle of having sexually molested Karlie. At the time, Karlie's uncle lived in Martha's basement apartment. Although the basis for the removal is disputed, it is undisputed that someone made a sexual abuse allegation against Karlie's uncle, that the allegation was false, and that the Department's investigation of the allegation lasted no more than a few days.
Martha further testified that the Department did not notify her that the investigation had been resolved until several months after Karlie had been removed. At that point, Martha asked the Department to return Karlie to her, but the Department refused. The Department explained that it did not wish to further traumatize Karlie with another home change. Martha then asked for visitation with Karlie, which was granted. Martha's visitation included two mornings each week and two overnight visits each month.
In November 2009, Martha filed a motion to intervene in the juvenile proceedings, which the juvenile court granted. Afterward, the State moved to terminate Gary's parental rights to Karlie. Martha then moved to have Karlie placed with her. The juvenile court proceeded to trial on both issues; namely, whether to place Karlie with Martha and whether to terminate Gary's parental rights. Over the course of several days during 2010, the juvenile court heard testimony and received exhibits, which will be discussed in more detail below. During these proceedings, Martha filed an amended motion to also be named as Karlie's guardian.
Following the hearings, but before the court's ruling, Gary died. As a result, the State moved to dismiss its motion to terminate Gary's parental rights to Karlie, which the court granted. This left pending before the court only Martha's motion to have Karlie placed in her home and to be named as Karlie's guardian.
On March 31, 2011, the juvenile court entered its order. The juvenile court determined that it could not
find by a preponderance of the evidence that it would be inconsistent with the best interest, safety, and welfare of Karlie if permanency occur[red] with Martha.... By a preponderance of the evidence, the court finds Martha ... to be a reputable citizen of good moral character....
However, before the court removes the Department as the guardian, the Department shall submit a transition plan to the court by May 15, 2011. Also, by May 15, 2011, the Department shall assess whether a subsidy or Medicaid coverage for the care of Karlie is consistent with Karlie's best interests, safety, and welfare.
A hearing on the above was scheduled for June 16, 2011.
The State appealed the March 31, 2011, order. While that...
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