State v. Victoria F. (In re Interest of Kirsten H.)

• Citation: 25 Neb.App. 909,915 N.W.2d 815
• Decision Date: 22 May 2018
• Docket Number: No. A-17-981.,A-17-981.
• Parties: IN RE INTEREST OF KIRSTEN H., a child under 18 years of age. State of Nebraska, appellee, v. Victoria F., appellant.
• Court: Court of Appeals of Nebraska

25 Neb.App. 909

915 N.W.2d 815

IN RE INTEREST OF KIRSTEN H., a child under 18 years of age.State of Nebraska, appellee,

v.Victoria F., appellant.

No. A-17-981.

Court of Appeals of Nebraska.

Filed May 22, 2018.

Katy A. Reichert, of Chaloupka, Holyoke, Snyder, Chaloupka & Longoria, P.C., L.L.O., for appellant.

Travis R. Rodak, Box Butte County Attorney, for appellee.

Jean Rhodes, Bridgeport, guardian ad litem.

Riedmann and Bishop, Judges, and Inbody, Judge, Retired.

Bishop, Judge.

INTRODUCTION

Kirsten H.’s parents divorced in North Dakota in approximately 2009. In 2012, Kirsten and her mother, Victoria F., moved to Nebraska, where Victoria later remarried. While visiting her grandparents in North Dakota in the summer of 2016, Kirsten made allegations that she had been sexually abused by John F., her stepfather. Juvenile proceedings were initiated in North Dakota, and the juvenile court there ultimately determined that Kirsten was to be returned to Victoria in Nebraska by July 1, 2017.

Before July 1, 2017, juvenile proceedings were initiated in Nebraska. After a hearing on August 10, the county court for Box Butte County, sitting as a juvenile court, granted temporary custody of Kirsten to the Nebraska Department of Health and Human Services (DHHS) and said that placement with her grandparents in North Dakota should continue. And after a hearing on August 31, the juvenile court overruled Victoria’s motion to dismiss, which claimed the juvenile court lacked subject matter jurisdiction because of the proceedings in North Dakota. Victoria appeals the orders from both August 10 and 31. For the reasons that follow, we find that the juvenile court of Box Butte County did not have subject matter jurisdiction at the time of both the August 10 and August 31 orders and that therefore, those orders are void. We vacate those orders, dismiss the appeal, and remand the cause with directions.

BACKGROUND

Victoria is the biological mother of Kirsten, born in December 2007. Garvin H. is Kirsten’s biological father. Garvin was stationed in Germany with the Army at the time of the juvenile court proceedings in both North Dakota and Nebraska in 2016 and 2017; the record does not establish Garvin’s domicile. Victoria’s father and stepmother are Kirsten’s grandparents, and they live in North Dakota.

Victoria and Garvin were divorced in North Dakota, the proceedings of which "started" in 2009. In 2012, Victoria and Kirsten moved to Nebraska. Victoria subsequently married John. Victoria, John, and Kirsten continued to live in Nebraska.

In the summer of 2016, Kirsten went to North Dakota to spend a week with her grandparents. While in North Dakota, Kirsten disclosed that she had been sexually abused by John. After receiving the report of possible abuse, and having Kirsten interviewed (during which she also apparently disclosed physical abuse by John and Victoria), the State of North Dakota initially filed for emergency custody, and later, a "deprivation" petition was filed. Kirsten has remained with her grandparents ever since.

NORTH DAKOTA PROCEEDINGS

Although we do not have any of the initial court pleadings or orders from North Dakota, testimony from an April 2017 North Dakota hearing was received into evidence in the current Nebraska case. We briefly summarize that testimony. North Dakota entered an emergency custody order in August 2016. The "venue [got] changed" to Nebraska in October. Nebraska apparently filed juvenile proceedings, but the proceedings were dismissed by the State in February 2017 before it went to "trial." Victoria then went to North Dakota to get Kirsten, but because there were still concerns about Kirsten’s safety, another emergency custody order was obtained in North Dakota, and a "deprivation" petition was filed.

After a hearing in April 2017, the Foster County Juvenile Court in North Dakota entered its order in May. The court found that competent evidence regarding the sexual abuse allegations was not presented to the court, noting that a forensic interview of Kirsten was done but the interviewer did not testify. The court also noted that although there were allegations of corporal punishment being used in the home, Victoria testified that she had abandoned "spanking" as a form of discipline and that she now used "time outs and restriction of privileges." However, the court found Kirsten was a "deprived" child, in that she was a child "without proper parental care, control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals and the deprivation is not due primarily to the lack of financial means of the parent or custodian of the child." That finding was made to allow Kirsten time to finish the current school year and complete or transfer therapy to Nebraska. The court ordered that

pending further order, the child, Kirsten ..., be and is hereby placed under the full care, custody, and control of the Executive Director of Foster County Social Services, or her successor, for placement and care, for a period dating from February 13, 2017 until July 1^st, 2017 when she shall be returned to [Victoria’s] home in Nebraska ... and the petitions will be dismissed.

The Foster County Juvenile Court’s May order was received into evidence in the current Nebraska juvenile court proceeding.

CURRENT NEBRASKA CASE

On June 16, 2017, the State of Nebraska filed a juvenile court petition in the county court for Box Butte County, sitting as a juvenile court, alleging that Kirsten was a child as defined by Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), because she lacked proper parental care by reason of the faults or habits of Victoria in that Victoria failed to protect Kirsten from sexual abuse while in her care, custody, and control and in that Victoria failed to report child abuse reported to her by Kirsten. The State further alleged that Kirsten was in a situation dangerous to life or limb or injurious to her health or morals, in that Kirsten was sexually abused while in Victoria’s care, custody, and control; Victoria engaged in acts toward Kirsten that would constitute physical and/or mental abuse; and Victoria sought to destroy or tamper with evidence regarding the alleged sexual abuse of Kirsten by John. The juvenile petition noted that Kirsten was living with her grandparents in North Dakota, but did not mention that there was an ongoing juvenile case in North Dakota.

Also on June 16, 2017, the State filed an ex parte motion for temporary custody of Kirsten, which attached and incorporated the supporting affidavit of an investigator with the Nebraska Attorney General’s office. The ex parte motion for temporary custody also failed to mention the ongoing North Dakota case, but the "pending juvenile case in North Dakota" was mentioned in the supporting affidavit. On June 17, the court granted the State’s ex parte motion for temporary custody of Kirsten.

An order filed on June 22, 2017, notes that a protective custody hearing was held and that Kirsten was to be placed into the temporary custody of DHHS; the hearing does not appear in our record. The court ordered that "[a]ny communication or contact between Kirsten and [Victoria] will only occur if Kirst[e]n agrees, and must be supervised and in a therapeutic setting."

On July 17, 2017, Victoria filed a motion to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112 for lack of subject matter jurisdiction. Victoria alleged:

1. At the time Petition was filed in the above-captioned case, [Kirsten] was not present in the State of Nebraska;

2. [Kirsten] is not present in the State of Nebraska as of the date hereof;

3. The Nebraska Supreme Court has held that the State lacks parens patriae power to provide the basis for finding jurisdiction over a child where the child is not within the State’s borders at the time the petition was filed. In re Interest of Violet T. , 286 Neb. 949, 840 N.W.2d 459 (2013) [.]

Also on July 17, 2017, Victoria filed an answer denying the allegations in the petition, and she asserted several affirmative defenses, including the court’s lack of jurisdiction over the proceedings.

An order filed on July 27, 2017, states that a hearing was held on Victoria’s motion to dismiss and the case was taken under advisement; the hearing does not appear in our record. In an order filed on July 31, the court found there was insufficient evidence adduced at the July 27 hearing in order to decide the motion. The court stated, "What is unknown, or unclear, is whether North Dakota has adopted the [Uniform Child Custody Jurisdiction and Enforcement Act], if so, the specific statutory basis for the Foster County, North Dakota Juvenile Court’s jurisdiction over Kirsten ... and how long Kirsten was in North Dakota before the North Dakota petition was filed." The court overruled Victoria’s motion to dismiss, but said the motion could be renewed and more evidence adduced.

On August 10, 2017, a hearing was held on Victoria’s motion for change of placement, filed on July 18, which had asked the court to place Kirsten in her home or another suitable place in Scottsbluff, Nebraska. The court treated the hearing as an initial detention hearing, and testimony was given. In its order filed that same day, the court found that reasonable efforts had been made to prevent or eliminate the need for removal and make it possible for Kirsten to safely return home, but that it was necessary for her to be placed in the custody of DHHS. The court further found that placement with her grandparents in North Dakota was the least restrictive placement and in Kirsten’s best interests. The court stated: "Reasonable visitation to be determined by DHHS[.] Further visitation conditions are: To be determined by Kirsten and her therapist ... and should begin in a therapeutic setting." Victoria’s motion for change of placement was denied.

On August 17, 2017, the State filed an amended juvenile court petition, once again alleging that Kirsten was a...