In re Interest of LeVanta S., a child under 18 years of age.
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,
Patricia B., appellant, and Calvin S., APPELLEE AND CROSS-APPELLANT.
Judgments: Jurisdiction. A jurisdictional
issue that does not involve a factual dispute presents a
question of law.
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.
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
Final Orders: Appeal and Error. An order
that affects a substantial right made in a special proceeding
is a final order.
Juvenile Courts: Appeal and Error. Juvenile
court proceedings are special proceedings for purposes of
Words and Phrases. A substantial right is an
essential legal right, not a mere technical right.
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.
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.
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.
Parental Rights. Nebraska law requires
reasonable efforts to be made to reunify families after a
juvenile is placed in out-of-home care.
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
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).
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).
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.
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.
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
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.
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.
Statutes: Appeal and Error. Appellate courts
will adhere to the plain meaning of a statute absent a
statutory indication to the contrary.
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.
from the Separate Juvenile Court of Douglas County: Elizabeth
Crnkovich, Judge. Reversed and remanded for further
T. Makaitis for appellant.
C. Hicks, of Hicks Law, PC, L.L.O., for appellee Calvin S.
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.
NATURE OF CASE
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.
Neb. 154] II. FACTS
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.
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.
Petition and First Hearing
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.
Adjudication and Disposition
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.
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
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
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.
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 ...