In re Interest of Mercedes L. et al., children under 18 years of age. State of Nebraska, appellee,
Angalinine L., appellant, and Oglala Sioux Tribe and Winnebago Tribe of Nebraska, intervenors-appellees.
Juvenile Courts: Appeal and Error. An
appellate court reviews juvenile cases de novo on the record
and reaches its conclusions independently of the juvenile
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.
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.
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.
Final Orders: Words and Phrases. A
substantial right is an essential right, not a mere technical
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.
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
Juvenile Courts: Judgments: Appeal and
Error. A dispositional order which merely continues
a previous determination is not an appealable order.
Juvenile Courts: Appeal and Error. The
appealability of an order changing the permanency objective
in a juvenile case is a fact-specific inquiry.
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.
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.
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.
Juvenile Courts: Minors: Proof. The State
has the burden of proving that a case plan is in the
child's best interests.
Appeal and Error. Appellate courts will not
consider issues on appeal that were not presented to or
passed upon by the trial court.
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.
from the County Court for Platte County: Frank J. Skorupa,
E. Joseph for appellant.
Breanna D. Anderson, Deputy Platte County Attorney, for
Jacqueline Tessendorf, of Tessendorf & Tessendorf, PC,
guardian ad litem.
Pirtle, Riedmann, and Welch, Judges.
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.
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.
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
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.
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."
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.
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."
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.
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
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.
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.
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.
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