In re Interest of Kirsten H., a child under 18 years of age.
Vicictoria F., appellant. State of Nebraska, appellee,
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.
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.
__:__. 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
Actions: Jurisdiction. Lack of subject matter jurisdiction
may be raised at any time by any party or by the court sua
Child Custody: Jurisdiction. Jurisdiction over child custody
proceedings is governed by the Uniform Child Custody
Jurisdiction and Enforcement Act.
__:__ . 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).
__:__. 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.
Judgments: Jurisdiction. A court action taken without subject
matter jurisdiction is void.
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.
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.
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.
from the County Court for Box Butte County: Paul G. Wess,
Judge. Orders vacated, appeal dismissed, and cause remanded
A. Reichert, of Chaloupka, Holyoke, Snyder, Chaloupka &
Longoria, P.C., L.L.O., for appellant.
R. Rodak, Box Butte County Attorney, for appellee.
Rhodes, guardian ad litem.
Riedmann and Bishop, Judges, and Inbody, Judge, Retired.
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.
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.
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.
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
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.
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.
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.
Foster County Juvenile Court's May order was received
into evidence in the current ...