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In re Mercedes L.

Court of Appeals of Nebraska

January 15, 2019

In re Interest of Mercedes L. et al., children under 18 years of age. State of Nebraska, appellee,
v.
Angalinine L., appellant, and Oglala Sioux Tribe and Winnebago Tribe of Nebraska, intervenors-appellees.

         1. 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.

         2. 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.

         3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken.

         4. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. Juvenile court proceedings are special proceedings, and an order in a juvenile special proceeding is final and appealable if it affects a parent's substantial right to raise his or her child.

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

         6. Juvenile Courts: Parental Rights: Parent and Child: Time: Final Orders. 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 length of time over which the parent's relationship with the juvenile may reasonably be expected to be disturbed.

         7. Juvenile Courts: Judgments: Parental Rights. A review order in a juvenile case does not affect a parent's substantial right if the court adopts a case plan or permanency plan that is almost identical to the plan that the court adopted in a previous disposition or review order.

         8. Juvenile Courts: Judgments: Appeal and Error. A dispositional order which merely continues a previous determination is not an appealable order.

         9. Juvenile Courts: Appeal and Error. The appealability of an order changing the permanency objective in a juvenile case is a fact-specific inquiry.

         10. Juvenile Courts: Adoption: Child Custody. A juvenile court, except where an adjudicated child has been legally adopted, may always order a change in the juvenile's custody or care when the change is in the best interests of the juvenile.

         11. Juvenile Courts: Parental Rights. The foremost purpose and objective of the Nebraska Juvenile Code is the protection of a juvenile's best interests, with preservation of the juvenile's familial relationship with his or her parents where the continuation of such parental relationship is proper under the law. The goal of juvenile proceedings is not to punish parents, but to protect children and promote their best interests.

         12. Juvenile Courts: Jurisdiction: Child Custody. Once a child has been adjudicated under Neb. Rev. Stat. § 43-247(3) (Reissue 2016), the juvenile court ultimately decides where a child should be placed. Juvenile courts are accorded broad discretion in determining the placement of an adjudicated child and to serve that child's best interests.

         13. Juvenile Courts: Minors: Proof. The State has the burden of proving that a case plan is in the child's best interests.

         14. Appeal and Error. Appellate courts will not consider issues on appeal that were not presented to or passed upon by the trial court.

         15. Juvenile Courts: Jurisdiction: Parental Rights: Appeal and Error. The continuing jurisdiction of a juvenile court pending appeal from adjudication does not include the power to enter a permanent dispositional order.

          Appeal from the County Court for Platte County: Frank J. Skorupa, Judge.

          Sharon E. Joseph for appellant.

          Breanna D. Anderson, Deputy Platte County Attorney, for appellee.

          Jacqueline Tessendorf, of Tessendorf & Tessendorf, PC, guardian ad litem.

          Pirtle, Riedmann, and Welch, Judges.

          PER CURIAM.

         I. INTRODUCTION

         Angaline L. appeals the orders of the county court for Platte County which approved a change in the permanency objective for Angaline and each of her six minor children from reunification to guardianship. Upon our review, we find the court did not err in ordering a change in the permanency objective. For the reasons that follow, we affirm, but we hold that the court's orders of December 12, 2017, appointing a guardian for each of the children are void for lack of subject matter jurisdiction and vacate those orders.

         II. BACKGROUND

         In each of these six related cases, consolidated on appeal, Angaline, the mother of the six juveniles involved, appeals from the November 13, 2017, orders of the county court that changed the permanency objective to guardianship. The orders adopted and approved the case plan/court report dated June 13, 2017.

         The initial juvenile petitions were filed in July 2015. The petitions alleged that Mercedes L., born in 2000; Makario L., born in 2001; and Geovanny L., born in 2004, had been removed from Angaline's care on three prior occasions and that Ricardo H., born in 2007; Xavier H., born in 2009; and Savannah L., born in 2011, had been removed from Angaline's care on two prior occasions. The petitions further alleged:

That the reason[s] the children were not safe in Angaline's care in 2012 and 2014 were that Angaline was suspected to be abusing methamphetamine as well as prescription drugs; that Angaline was not taking proper care of her children, especially Xavier and Geovanny, who have special medical needs; that Angaline was not ensuring the children were receiving a proper education by attending school on a regular basis and that Angaline allowed her mother ... to provide care for her children while under the influence of methamphetamine.

         The petitions also alleged that Angaline's children "had been in the Oglala Sioux Tribal Court's jurisdiction and custody and that due to Angaline's lack of cooperation with services the Tribal Court . . . terminated their involvement with Angaline and her children."

         The children remained in Angaline's care until August 2015. when she was sentenced to a term of incarceration on charges of child abuse and neglect. The children were placed in two separate foster homes.

         Amended petitions were filed on November 23, 2015, to add allegations regarding Angaline's incarceration. A "Notification of Termination of Tribal Jurisdiction" was filed for each child on December 7, and they included the tribal court order vacating jurisdiction filed on June 18. The tribal court order stated that, due to Angaline's lack of compliance, the Oglala Sioux Tribe vacated jurisdiction over the minor children and returned jurisdiction to "the State where they can better assist the family."

         At a hearing on December 9, 2015, the guardian ad litem presented evidence from a designated federal Indian Child Welfare Act (ICWA) specialist, who is a member of the Oglala Sioux Tribe. He was qualified as an expert witness regarding ICWA and testified without objection from Angaline. The ICWA specialist stated, based on his knowledge of the cases and Angaline's current situation, "I believe at this time that the children would be at risk of harm and further neglect" if returned to Angaline's home. He testified that sibling visits and visits with Angaline at the prison, if allowed by the prison, would be considered active efforts. He also testified that a search for suitable families available for placement had been made based upon the information Angaline had provided to the tribe.

         The court found, based upon the ICWA specialist's testimony, that there had been a diligent search for placement with relatives and that the State had shown by clear and convincing evidence there was good cause to deviate from the placement preference. The court found that active and ongoing efforts for reunification included case management, family support services, foster and kinship placement, a foster care specialist, and clothing vouchers. The court "specifically" found that the Department of Health and Human Services (DHHS) "is making active efforts."

         The children were adjudicated as children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015). The journal entry and orders of December 9, 2015, reflect an agreement that, should Angaline plead no contest to the amended petitions, the State and the guardian ad litem would not file for termination of parental rights on the basis of out-of-home placement within 10 months of Angaline's sentencing date, as long as Angaline remained eligible for parole on October 5, 2016.

         The Winnebago Tribe of Nebraska filed a notice of intervention on December 17, 2015, with regard to Makario. The tribe remained a party to this case, but expressed no desire to transfer jurisdiction. The tribe requested updates from DHHS, and court reports were sent to its office.

         At a hearing on February 22, 2016, the court received a case plan/court report prepared on January 25 as exhibit 1. Exhibit 1 contains a recommended permanency objective of reunification. The court adopted the case plan/court report and ordered the parties to comply with the case plan.

         At a hearing on July 18, 2016, the court received a case plan/court report prepared on July 11 as exhibit 2. Exhibit 2 contains a recommended permanency objective of reunification, and the plan was adopted. The court specifically found that DHHS "is making active efforts to reach the permanency objective previously ordered by the Court." Active and reasonable efforts included case management, foster and ...


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