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In re LeVanta S.

Supreme Court of Nebraska

December 2, 2016

In re Interest of LeVanta S., a child under 18 years of age.
v.
Patricia B., appellant, State of Nebraska, appellee and cross-appellee. and Calvin S., APPELLEE AND CROSS-APPELLANT. In re Interest of LeRonn S., a child under 18 years of age. State of Nebraska, appellee and cross-appellee,
v.
Patricia B., appellant, and Calvin S., APPELLEE AND CROSS-APPELLANT.

         1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual dispute presents a question of law.

         2. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings. When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.

         3. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. Appellate courts in Nebraska have jurisdiction to hear appeals from final orders issued by juvenile courts in the same manner as appeals from the district courts.

         4. Final Orders: Appeal and Error. An order that affects a substantial right made in a special proceeding is a final order.

         5. Juvenile Courts: Appeal and Error. Juvenile court proceedings are special proceedings for purposes of appeal.

         6. Words and Phrases. A substantial right is an essential legal right, not a mere technical right.

         [295 Neb. 152] 7. Juvenile Courts: Parental Rights: Parent and Child: Time: Final Orders: Appeal and Error. When determining whether a juvenile court order affects a substantial right of a parent to raise his or her child, an appellate court considers the object of the order as well as the length of time over which the parent's relationship with the child may reasonably be expected to be disturbed.

         8. Juvenile Courts: Minors. Nebraska law requires the creation of permanency plans for every juvenile placed in out-of-home care and requires juvenile courts to hold a hearing on the plan.

         9. Juvenile Courts: Judgments: Parental Rights: Adoption: Guardians and Conservators. The juvenile court's order on a permanency plan must include whether the objective is for the juvenile to be returned to the parent, referred for a termination-of-parental-rights filing, placed for adoption, or referred for a guardianship.

         10. Parental Rights. Nebraska law requires reasonable efforts to be made to reunify families after a juvenile is placed in out-of-home care.

         11. Parental Rights: Adoption: Guardians and Conservators. Reasonable efforts toward reunification may be made concurrently with a plan for adoption or guardianship, but the objective of family preservation and reunification must take priority over the other objectives.

         12. Guardians and Conservators: Minors. The first requirement for establishment of a permanent guardianship is that the juvenile be adjudicated under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015).

         13. Parental Rights. An adjudication of a juvenile under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) can be a basis for termination of parental rights if subsequent reasonable efforts to preserve and reunify the family have failed. But an adjudication under § 43-247(3)(c) is not a ground for termination under Neb. Rev. Stat. § 43-292 (Reissue 2016).

         14. Guardians and Conservators: Minors. Pursuant to Nebraska's permanent juvenile guardianship statute, Neb. Rev. Stat. § 43-1312.01 (Reissue 2016), an adjudication under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) is a requirement for establishing a guardianship.

         15. Juvenile Courts: Jurisdiction: Mental Health. The only basis for the court's jurisdiction in a case under Neb. Rev. Stat. § 43-247(3)(c) (Supp. 2015) is that the juvenile is mentally ill and dangerous.

         16. Parental Rights: Due Process. The absence of an opportunity for parents to respond to allegations about their fitness to raise their children implicates their due process rights.

         17. Due Process. The concept of due process embodies the notion of fundamental fairness and defies precise definition. But the central meaning of procedural due process is clear: Parties whose rights are to be affected are entitled to be heard.

         [295 Neb. 153] 18. Parental Rights: Due Process: Appeal and Error. The absence of a formal opportunity to be heard distinguishes a case under Neb. Rev. Stat. § 43-247(3)(c) (Supp. 2015) from a case under § 43-247(3)(a) in an appellate court's analysis of whether the change in permanency objective was a final order.

         19. Statutes: Appeal and Error. Appellate courts will adhere to the plain meaning of a statute absent a statutory indication to the contrary.

         20. Guardians and Conservators: Minors. Because Neb. Rev. Stat. § 43-1312.01(1)(a) (Reissue 2016) requires that for the establishment of a guardianship, the child is a juvenile who has been adjudged to be under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015), a guardianship may not be established without such adjudication.

         Appeals from the Separate Juvenile Court of Douglas County: Elizabeth Crnkovich, Judge. Reversed and remanded for further proceedings.

          Regina T. Makaitis for appellant.

          Karen C. Hicks, of Hicks Law, PC, L.L.O., for appellee Calvin S.

          Donald W. Kleine, Douglas County Attorney, and Jennifer C. Clark for appellee State of Nebraska.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Wright, J.

         I. NATURE OF CASE

         In 2013, the separate juvenile court of Douglas County adjudicated twin brothers LeVanta S. and LeRonn S. under Neb. Rev. Stat. § 43-247(3)(c) (Reissue 2008) as "mentally ill and dangerous." Both brothers were eventually placed in out-of-home care. In September 2015, the juvenile court entered an order changing the brothers' permanency objective from family reunification to guardianship. The mother (appellant, Patricia B.) and the father (cross-appellant, Calvin S.) separately appeal from this order in each brother's case. The appeals from the two cases have been consolidated.

         [295 Neb. 154] II. FACTS

         1. Family Background

         At a very young age, LeVanta and LeRonn were adopted by Patricia and Calvin, their parents. The twin brothers have developmental disabilities due to fetal alcohol syndrome. Both have IQ's in the "Extremely Low Range" and meet the criteria for "Mild Mental Retardation." They were 15 years old when their cases began in January 2013, and are now 18 years old.

         The parents were separated before January 2013 and have since divorced. After the parents' separation, one brother lived with each parent. From the time the children were 5 years old, the parents have sought professional help in dealing with the brothers' behaviors.

         2. Petition and First Hearing

         In January 2013, the brothers were brought before the juvenile court for criminal delinquency charges of trespass and truancy. These charges were dropped when it was determined that they were not mentally competent to be tried. The county attorney then filed petitions alleging the brothers were "mentally ill and dangerous" within § 43-247(3)(c). The State moved for temporary custody with the Department of Health and Human Services (DHHS), with placement to include the parental homes.

         3. Adjudication and Disposition

         An adjudication hearing was held April 3, 2013, and the brothers and the mother and father were present. Each brother had appointed counsel, but the parents were not represented by counsel. The family permanency specialist and the mother both testified. Examples of the brothers' poor judgment, fighting, anger problems, and other violent behavior were offered. Testimony was also offered that LeRonn would at times refuse to take his medications. The court found by clear and convincing evidence that the brothers were within the definition of [295 Neb. 155] § 43-247(3)(c). Temporary custody was placed with DHHS. The parents did not appeal the adjudication.

         A disposition hearing was held May 21, 2013, but the parents were not present and were not represented by counsel. At the beginning of the hearing, there was some discussion whether the parents had been informed of the hearing date and time. The court ordered that the brothers stay at home with their parents, but that applications for out-of-home placements should be made. The court ordered in-home developmental disability services to be provided, with both parents to participate. All visits by the parents were to be supervised, and they were to participate in therapy and complete a psychiatric evaluation.

         The court found that reasonable efforts-including evaluations, family support, and case management-had been made to return each brother to the parents' custody, but that it was in their best interests to remain in the temporary custody of DHHS.

         4. Additional Hearings

         The juvenile court continued to have additional review hearings. The family permanency objective was stated as "family preservation" or "reunification, " but applications for out-of-home placements were to be made.

         In July 2013, LeRonn threw a mailbox through the front window of his father's house. He was moved from his father's house to an "extended family home" for individuals with developmental disabilities. Later that ...


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