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In re Becka P.

Supreme Court of Nebraska

April 7, 2017

IN RE INTEREST OF BECKA P. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
v.
ROBERT P. AND VERONICA M., APPELLANTS. STATE OF NEBRASKA, APPELLEE,

         1. Juvenile Courts: Jurisdiction. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings.

         2. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

         3. Juvenile Courts: Jurisdiction: Appeal and Error. 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. Final Orders: Appeal and Error. 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. Juvenile Courts: Final Orders: Appeal and Error. A proceeding before a juvenile court is a "special proceeding" for appellate purposes.

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

         7. Juvenile Courts: Parental Rights: Final Orders: Time. 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 [296 Neb. 366] length of time over which the parent's relationship with the juvenile may reasonably be expected to be disturbed.

         8. Constitutional Law: Parental Rights. Parents have a fundamental liberty interest in directing the education of their children.

         9. Parental Rights: Final Orders: Time: Appeal and Error. 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.

         10. Parental Rights: Final Orders: Time. An order appointing an educational surrogate which has no limitation on its duration or scope is not a temporary order, but, rather, one which affects the parents' substantial right to direct the education of their child.

         11. Jurisdiction: Appeal and Error. Generally, once an appeal has been perfected to an appellate court, the trial court is divested of its jurisdiction to hear a case involving the same matter between the same parties; however, there is statutory authority allowing the juvenile court to retain or continue jurisdiction while appeals are pending.

         12. Juvenile Courts: Jurisdiction: Parental Rights: Appeal and Error. Although a juvenile court retains jurisdiction over a juvenile while an appeal is pending, such continuing jurisdiction is not without limits; for example, the continuing jurisdiction of a juvenile court pending an appeal does not include the power to terminate parental rights.

         13. Juvenile Courts: Jurisdiction: Final Orders: Appeal and Error. Pending an appeal from an adjudication, the juvenile court does not have the power to enter a permanent dispositional order.

         14. Juvenile Courts: Jurisdiction: Appeal and Error. The extent of the juvenile court's jurisdiction over a juvenile while an appeal is pending must be determined by the facts of each case.

         15. __: __:__. A juvenile court has continuing jurisdiction to issue and rule upon an order to show cause seeking enforcement of a previous order while the order of adjudication is pending on appeal.

         16. Juvenile Courts: Contempt. Juvenile courts, whether separate juvenile courts or county courts sitting as juvenile courts, are courts of record with the statutory authority to punish contemptuous conduct.

         Appeals from the County Court for Garden County: Randin Roland, Judge. Affirmed.

          Michael R. Snyder, of Snyder & Hilliard, PC, L.L.O., for appellants.

          Philip E. Pierce, Garden County Attorney, for appellee.

         [296 Neb. 367] 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.

         FACTS

         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 [296 Neb. 368] 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 ...


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