State v. Robert P. (In re Interest of Becka P.), s. S-16-646 through S-16-648.
| Decision Date | 07 April 2017 |
| Docket Number | Nos. S-16-646 through S-16-648.,s. S-16-646 through S-16-648. |
| Citation | 894 N.W.2d 247,296 Neb. 365 |
| Parties | IN RE INTEREST OF BECKA P. et al., children under 18 years of age. State of Nebraska, appellee, v. Robert P. and Veronica M., appellants. |
| Court | Nebraska Supreme Court |
Michael R. Snyder, of Snyder & Hilliard, P.C., L.L.O., Kearney, for appellants.
Philip E. Pierce, Garden County Attorney, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
Stacy, J.Robert P. and Veronica M. appeal from orders of the county court for Garden County, sitting as a juvenile court, appointing an "educational surrogate" after Robert and Veronica refused to complete consent forms necessary to authorize speech and language and early childhood development assessments previously ordered by the court. We affirm.
Robert and Veronica are the parents of Becka P.; Robert P., Jr. (Robert Jr.); and Thomas P. In December 2015, the State filed juvenile petitions, alleging the children—who were ages 4, 2, and 1, respectively—came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) due to the faults and habits of their parents. The cases were consolidated for trial, and the juvenile court entered orders finding the allegations of the petitions were true as to all three children. The orders of adjudication placed custody of the children with the Nebraska Department of Health and Human Services (DHHS) and, among other things, ordered a "language and speech assessment" for Becka and an "early childhood development assessment" for Robert Jr. and Thomas. All assessments were to be conducted on the children by an "Educational Services Unit" (ESU).
The parents appealed the adjudication orders in all three cases. The appeals were consolidated, and on October 19, 2016, the Nebraska Court of Appeals affirmed the adjudications in an unpublished memorandum opinion in cases Nos. A-16-351 through A-16-353. The mandate issued November 23.
While the parents' appeals were pending before the Court of Appeals, the county attorney charged with enforcing court orders filed an "Affidavit and Application for Order to Show Cause" in the juvenile court. This application asked that the parents and DHHS be ordered to appear and show cause why they should not be held in contempt for failing to comply with the assessments previously ordered by the court. The record indicates the court issued an order to show cause in each of the three cases and consolidated the matters for purposes of the hearing.
A show cause hearing was held in May 2016. Evidence introduced by the State showed the parents had signed the informed consent forms needed by the ESU to proceed with the assessments, but had added language indicating their signatures were not voluntary, and had refused to consent to the release of information between the ESU and the programs it uses to conduct the evaluations. As such, the ESU did not consider the consent forms sufficient to permit the assessments to be performed and the evaluations to be completed. There was evidence that DHHS had not signed the consent forms, but that pertinent regulations precluded DHHS from signing such consents for children who are wards of the State.
After hearing the evidence, the court declined to make any finding of contempt and instead decided to appoint an "educational surrogate" to authorize the necessary consents. The following colloquy took place on the record:
After the show cause hearing, the court entered an order in each child's case which provided that a particular attorney was "appointed as educational surrogate for the minor child herein and shall have all educational rights for the minor child."
Robert and Veronica timely appealed from the May 2016 orders appointing an educational surrogate in each child's case. We moved these appeals to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.1
Robert and Veronica assign, consolidated and restated, that the juvenile court erred in (1) ordering them to show cause why they should not be held in contempt, and subsequently appointing an educational surrogate, while appeals of the adjudications were pending in the Court of Appeals and (2) appointing an educational surrogate in a civil contempt proceeding without giving them an opportunity to purge their contempt by completing the assessment consent forms.
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings.2
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.3
The State argues the orders appointing an educational surrogate were not final, appealable orders. In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.4
Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016) gives appellate courts jurisdiction to review "[a]ny final order or judgment entered by a juvenile court...." No one argues that the orders appointing an educational surrogate are judgments under Neb. Rev. Stat. § 25-1301 (Reissue 2016), so whether we have jurisdiction to review the juvenile court's orders depends on whether Robert and Veronica have appealed from final orders.
Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), 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 Because a proceeding before a juvenile court is a "special proceeding" for appellate purposes,6 the pertinent inquiry is whether the order appointing an educational surrogate affected a substantial right. We conclude it did.
A substantial right is an essential legal right, not a mere technical right.7 Whether a substantial right of a parent has been affected by an order in juvenile court litigation is dependent upon both the object of the order and the length of time over which the parent's relationship with the juvenile may reasonably be expected to be disturbed.8 This court has considered both the object and duration of the orders at issue here, and we conclude the orders affect a substantial right.
The object of the orders appointing an educational surrogate is the fundamental right of Robert and Veronica to direct the education of their children. The U.S. Supreme Court has recognized parents have a fundamental liberty interest in directing the education of their children.9 And this court has recognized there "can be no doubt that the object of [an order prohibiting a parent from homeschooling her child] is of sufficient importance to affect a substantial right."10 Here, although the educational surrogate was appointed to address the parents' refusal to consent to court-ordered assessments, the orders gave the surrogate "all educational rights for the minor child" and the court clarified on the record that "[t]here are no limitations on [the appointment] whatsoever...."
We are persuaded on this record that the object of the orders appointing an educational surrogate is of sufficient importance to affect a substantial right.
The second prong of the substantial right analysis requires consideration of the length of time over which the parent-child relationship may reasonably be expected to be disturbed.11 Orders which temporarily suspend a parent's custody, visitation, or education rights for a brief period of time do not affect a substantial right and are therefore not appealable.12
Here, neither the language of the orders appointing the educational surrogate nor the court's remarks on the record denote a temporary interruption of the parents' rights to direct the education of their children. To the contrary, the court's remarks indicate the educational surrogate was appointed with "no limitations on that whatsoever" and the court wanted the appointment to continue in case the parents "refuse to do something in the future." Because there was no limit on the duration or scope of the educational surrogate's appointment, we conclude these were not temporary orders, but, rather, orders which affected the parents' substantial right to direct the education of their child.13 The orders were therefore final orders, and we proceed to consider the errors assigned on appeal.
Robert and Veronica challenge the appointment of an educational surrogate on two grounds. Firs...
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