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In re Ethan M.

Court of Appeals of Nebraska

August 6, 2013

In re Interest of Ethan M., a child under 18 years of age.
v.
Theresa S., appellee, State of Nebraska, appellee, and Daniel M., appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the Separate Juvenile Court of Lancaster County: Toni G. Thorson, Judge.

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., for appellant.

Ashley Bohnet, Deputy Lancaster County Attorney, for appellee State of Nebraska.

David P. Thompson, of Thompson Law, P.C., L.L.O., for appellee Theresa S.

Moore and Pirtle, Judges, and Mullen, District Judge, Retired.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE, JUDGE.

INTRODUCTION

Daniel M. appeals from the order of the separate juvenile court of Lancaster County that denied his motion to change placement and his motion for visitation. We find that the order denying the motion for placement merely extends the time for which the previous order is applicable and that the order denying Daniel's motion for visitation does not affect a substantial right. Further, we find that there is not a change in the essential terms of the permanency plan with respect to family preservation and that the order appealed from does not eliminate the possibility of reunification. As such, the order appealed from is not a final, appealable order, and the appeal must be dismissed for lack of jurisdiction.

BACKGROUND

This case has appeared before this court six times in recent years, resulting in three prior published opinions. In the third published opinion, In re Interest of Ethan M., 19 Neb.App. 259, 809 N.W.2d 804 (2011) (Ethan M. III), this court recounted the prior history, including the results of the first two published opinions:

Ethan M., born in January 2000, is the child of Daniel and Theresa S. Following the dissolution of Daniel and Theresa's marriage in 2002, a California court awarded Daniel custody of Ethan. In January 2005, DHHS removed Ethan from Daniel's home in Nebraska and placed him into foster care. The county court for Sherman County, Nebraska, subsequently adjudicated Ethan as a result of allegations that other children residing within the home had suffered injuries. In January 2006, the court approved an immediate change of Ethan's placement from the home of his paternal grandparents to the home of Theresa in California. Daniel appealed, and in In re Interest of Ethan M., 15 Neb.App. 148, 723 N.W.2d 363 (2006), we found that the State must make reasonable efforts to reunify Ethan and Daniel. We recognized that under the California divorce decree, Daniel was Ethan's custodial parent. We concluded that Ethan should not be placed in California with Theresa and that he should be placed in a situation in Nebraska that was conducive to reunification with Daniel. We observed that Daniel had complied with all tasks required by the case plan.
DHHS did not return Ethan's custody to Daniel. Rather, Ethan's physical custody remained with Theresa, who moved to Nebraska. In June 2007, Daniel began having weekly supervised visitation with Ethan. But in August, the visitation was changed to therapeutic visitation supervised by a mental health professional. In September, visitation ceased due to the unavailability of a mental health professional to supervise the visitation. DHHS arranged for telephone calls between Ethan and Daniel on Tuesdays and Thursdays, but Ethan often ended the calls quickly or refused to speak. In February 2009, the county court for Sherman County adopted DHHS' case plan which continued telephonic visitation only, found that reasonable efforts to reunify Ethan and Daniel were not necessary, placed custody of Ethan with Theresa, and dismissed the juvenile case. Upon Daniel's appeal, we found plain error in the court's order. In In re Interest of Ethan M., 18 Neb.App. 63, 72, 774 N.W.2d 766, 773 (2009), we held that "where the only issue placed in front of the county court is whether a case plan is in the child's best interests, permanent child custody cannot be modified merely through the adoption of the case plan." We stated, however, that "a case plan could be used to place a child with a noncustodial parent as a dispositional order under the continuing supervision of the juvenile court." Id. We reversed the county court's order and remanded the cause for further proceedings.

19 Neb.App. at 260-61, 809 N.W.2d at 806-07.

Following a series of review hearings in 2010, the juvenile court entered an order of review which approved a DHHS case plan. The case plan contained no rehabilitative goals or tasks for Daniel. The court found that Ethan's legal custody should continue with DHHS and his physical custody should remain with Theresa S. The court found that reasonable efforts had been made to prevent or eliminate the need for removing Ethan from his home and that the primary permanency plan was family preservation with an alternative plan of reunification. Daniel appealed, and in Ethan M. III, we observed that DHHS' position, adopted by the juvenile court, essentially attempted to redefine Ethan's "home" as Theresa's, even though he had been removed from Daniel's home. We noted our decisions in In re Interest of Ethan M., 15 Neb.App. 148, 723 N.W.2d 363 (2006) (Ethan M. I), and In re Interest of Ethan M., 18 Neb.App. 63, 774 N.W.2d 766 (2009) (Ethan M. II), and concluded that there was not a valid order from a court of competent jurisdiction that excused reasonable efforts to preserve and reunify the family. We observed that unlike the prior appealed orders, the order at issue in Ethan M. III did not find that reasonable efforts were excused; but, rather, it found that reasonable efforts were made to prevent or eliminate the need for removing Ethan from Theresa's home. We concluded that DHHS did not end its responsibility in this case by placing Ethan's physical custody with Theresa. While the juvenile court adopted a case plan that included an alternative plan of reunification, there were no services or goals in place for Daniel to work toward reunification. We found that a case plan that had no goals or services ...


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