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In re Kirsten H.

Court of Appeals of Nebraska

May 22, 2018

In re Interest of Kirsten H., a child under 18 years of age.
Vicictoria F., appellant. State of Nebraska, appellee,

         1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches a conclusion 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. __:__. Subject matter jurisdiction is a court's power to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject involved in the action or proceeding before the court and the particular question which it assumes to determine.

         4. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

         5. Child Custody: Jurisdiction. Jurisdiction over child custody proceedings is governed by the Uniform Child Custody Jurisdiction and Enforcement Act.

         6. __:__ . Under the Uniform Child Custody Jurisdiction and Enforcement Act, a court which makes an initial child custody determination will have exclusive, continuing jurisdiction over child custody until certain determinations are made pursuant to Neb. Rev. Stat. §43-1239 (Reissue 2016).

         7. __:__. A court with exclusive and continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act may decline to exercise its jurisdiction on the basis that it is an inconvenient forum.

         8. Judgments: Jurisdiction. A court action taken without subject matter jurisdiction is void.

         [25 Neb.App. 910] 9. Judgments: Final Orders: Jurisdiction: Appeal and Error. A void order is a nullity which cannot constitute a judgment or final order that confers appellate jurisdiction on a court.

         10. Judgments: Jurisdiction: Appeal and Error. An appellate court has the power to determine whether it lacks jurisdiction over an appeal because the lower court lacked jurisdiction to enter the order; to vacate a void order; and, if necessary, to remand the cause with appropriate directions.

         11. Jurisdiction: Appeal and Error. When a lower court does not have jurisdiction over the case before it, an appellate court also lacks jurisdiction to review the merits of the claim.

          Appeal from the County Court for Box Butte County: Paul G. Wess, Judge. Orders vacated, appeal dismissed, and cause remanded with directions.

          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, guardian ad litem.

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

          Bishop, Judge.


         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 [25 Neb.App. 911] 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.


         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.

         [25 Neb.App. 912] 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 1st, 2017 when [25 Neb.App. 913] 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 ...

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