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In re Kamille C.

Supreme Court of Nebraska

February 8, 2019

In re Interest of Kamille C. and Kamiya C. CHILDREN UNDER 18 YEARS OF AGE.
v.
Samuel C, appellee. Nateesha B., appellant,

         1. Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decision made by the lower court.

         2. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created court of limited and special jurisdiction, a juvenile court has only such authority as has been conferred on it by statute.

         3. Juvenile Courts: Jurisdiction: Child Custody: Parental Rights. During proceedings under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), the juvenile court has broad jurisdiction under Neb. Rev. Stat. § 43-284 (Reissue 2016) regarding placement, but its discretion is governed by the parental preference doctrine that holds that in a child custody controversy between a biological parent and one who is neither a biological nor adoptive parent, the biological parent has a superior right to the custody of the child.

         4. Juvenile Courts: Jurisdiction. The juvenile court loses jurisdiction to order compliance with dispositional plans once it has terminated jurisdiction over the juvenile and the parties.

         5. Juvenile Courts: Statutes: Legislature: Child Custody. In enacting Neb. Rev. Stat. § 43-246.02 (Supp. 2017), authorizing bridge orders, the Legislature crafted a solution for temporary continuity when the child is no longer in need of the juvenile court's protection; the juvenile court has made, through a dispositional order, a custody determination in the child's best interests; and the juvenile court does not wish to enter a domestic relations custody decree under the power granted by Neb. Rev. Stat. § 25-2740(3) (Reissue 2016).

         [302 Neb. 227] 6. Juvenile Courts: Courts: Jurisdiction: Child Custody. A juvenile court can ensure through a bridge order that during the transfer of jurisdiction to the district court for entry of a custody decree, the custody arrangement that the juvenile court has found to be in the child's best interests remains in place.

         7. Juvenile Courts: Courts: Legislature: Jurisdiction: Child Custody: Time. The Legislature, through enacting Neb. Rev. Stat. § 43-246.02 (Supp. 2017), bridged the gap that would otherwise occur between the time that the juvenile court terminated its jurisdiction and the district court picked up the case, by avoiding a reversion, before district court proceedings can be commenced, back to whatever custody arrangement controlled before adjudication.

         8. Juvenile Courts: Final Orders: Parental Rights. 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.

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

         10. Final Orders. It is not enough that the right itself be substantial; the effect of the order on that right must also be substantial.

         11. Final Orders: Appeal and Error. Most fundamentally, an order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review.

         12. ___: ___. If the right affected would not be significantly undermined by delaying appellate review, then the order falls under the general prohibition of immediate appeals from interlocutory orders. This general prohibition operates to avoid piecemeal appeals arising out of the same set of operative facts, chaos in trial procedure, and a succession of appeals in the same case to secure advisory opinion to govern further actions of the trial court.

         13. Constitutional Law: Child Custody: Parental Rights: Time. Custody is generally considered an essential legal right implicating a parent's fundamental, constitutional right to raise his or her child, but the duration of a court's order is also relevant to whether an order affects a substantial right.

         14. Child Custody: Jurisdiction: Intent. A bridge order is designed to preserve the status quo by continuing the placement with the noncustodial parent until the matter can be heard in district court, if either of the parties are dissatisfied with the custody decree that the district court enters in accordance with the bridge order.

         15. Final Orders. An order merely preserving the status quo pending a further order is not final.

         [302 Neb. 228] 16. Jurisdiction: Appeal and Error. Immediate appellate review of a bridge order would undermine the rights affected more than it would vindicate them.

         17. Jurisdiction: Final Orders. A bridge order is not final for purposes of Neb. Rev. Stat. § 25-1902 (Reissue 2016).

          Appeal from the Separate Juvenile Court of Lancaster County: Linda S. Porter, Judge. Appeal dismissed.

          Joy Shiffermiller, of Shiffermiller Law Office, PC, L.L.O., for appellant.

          Megan M. Zobel, of Anderson, Creager & Wittstruck, PC, L.L.O., for appellee.

          Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FREUDENBERG, J.

         NATURE OF CASE

         This appeal involves a "bridge order," which was created by L.B. 180 in 2017, [1] and is codified in Neb. Rev. Stat. § 43-246.02 (Supp. 2017). Under § 43-246.02(1), a "juvenile court may terminate its jurisdiction under subdivision (3)(a) of section 43-247 by transferring jurisdiction over the juvenile's custody, physical care, and visitation to the district court through a bridge order," if certain criteria are met. A bridge order solely addresses matters of legal and physical custody and parenting time when a juvenile has been placed by the juvenile court with a legal parent.[2] The bridge order in this case was entered after the adjudication of five children under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), who had been in the mother's sole legal and physical custody. Two of those children had the same father, with whom they were placed during the ongoing juvenile proceedings. The bridge order gave [302 Neb. 229] the father legal and physical custody, with substantial visitation by the mother. The mother contests the bridge order, arguing that it was inappropriate under the circumstances, because by the time the bridge order was entered, the Department of Health and Human Services (DHHS) had conceded that the children could safely be placed back in her care and custody. Because we determine that bridge orders are not final for purposes of Neb. Rev. Stat. § 25-1902 (Reissue 2016), we dismiss the appeal for lack of jurisdiction.

         BACKGROUND

         On July 11, 2017, a petition was filed under § 43-247(3)(a) to adjudicate Kamille C. and Kamiya C, as well as three siblings who are not the subject of this appeal. The children resided with their mother, Nateesha B. In a prior proceeding, Samuel C. had been determined to be the biological father of Kamille and Kamiya and had been ordered to pay child support. The petition alleged that Nateesha had been found in possession of controlled substances after a traffic stop. Kamille and Kamiya were 5 years old at the time.

         On July 13, 2017, the juvenile court issued an ex parte order of temporary emergency custody of all five children with DHHS, which, after a hearing on July 19, the court ordered to be continuing.

         Nateesha admitted the allegations in the petition, and the children were adjudicated on October 6, 2017. The court ordered that Kamille and Kamiya be physically placed in Samuel's home and that Nateesha be allowed to exercise reasonable rights of supervised parenting time. Samuel's child support payments were suspended during this time.

         The dispositional order was issued on November 21, 2017. The court ordered that Kamille and Kamiya, as well as the other adjudicated children, remain in the temporary legal custody of DHHS, while Nateesha worked on a permanency plan for reunification. Kamille and Kamiya's placement was to continue with Samuel.

         [302 Neb. 230] At a dispositional review hearing on January 10, 2018, the court ruled that the children should remain in the temporary legal custody of DHHS and that Kamille and Kamiya should remain in their placement with Samuel.

         On April 24, 2018, pursuant to a motion by DHHS, the court ordered the placement change of one of Kamille and Kamiya's siblings from foster care back into Nateesha's home, subject to further hearing at the request of any party. In the affidavit in support of the motion, DHHS noted that it had also requested that another sibling be placed back with Nateesha, but that a hearing on the request had not yet been held. A DHHS specialist averred that Nateesha had regularly complied with the permanency plan by submitting to drug testing and being negative for any and all substances during the prior 2 months. Additionally, Nateesha had been following the guidelines of her outpatient treatment and was doing well. The DHHS specialist described Nateesha as providing a "safe and stable home."

         There are no further orders regarding Kamille and Kamiya's siblings in the appellate record.

         Samuel moved for a bridge order under § 43-246.02, which would close the juvenile case as to Kamille and Kamiya and transfer jurisdiction over their physical care, custody, and parenting time to the district court. The motion alleged that the children were safely placed with Samuel, that there was not a district court order for custody in place, that there were no other related pending cases before the juvenile court, and that the juvenile court could safely close the juvenile case as to Kamille and Kamiya once orders for custody, physical care, and parenting time were in place.

         The court held a hearing on May 24, 2018, on Samuel's motion for a bridge order. According to testimony at the hearing, approximately 1 month prior, Nateesha had begun having unsupervised visitation with Kamille and Kamiya, with periodic drop-ins, on two week nights a week. She had begun having unsupervised visitation on the weekends, with [302 Neb. 231] periodic drop-ins, approximately 2 weeks prior to the hearing. Transportation for visitation was provided by DHHS.

         Evidence submitted at the hearing demonstrated that by March 2018, Nateesha's home was considered to be safe and drug free. However, a child and family services specialist with DHHS who was assigned to Kamille and Kamiya's case testified that she believed it was in the children's best interests for Samuel to have the legal and physical custody of the children, with visitation rights for Nateesha. The specialist testified that the children had been living with Samuel full time for approximately 1 year and had adjusted well and formed a strong bond with Samuel.

         On May 29, 2018, the court issued, as to Kamille and Kamiya, a bridge order and an attached parenting plan. The court found that it was in Kamille and Kamiya's best interests to have their legal and physical custody with Samuel and that the juvenile court's jurisdiction over Kamille and Kamiya be transferred to the district court. The parenting plan provided that Samuel have primacy in the choices regarding Kamille and Kamiya's education, religious upbringing, and medical needs. Nateesha was to have visitation with Kamille and Kamiya every Tuesday commencing at 4:30 p.m. and concluding at 7:30 p.m., every Wednesday commencing at 4 p.m. and concluding at 7:30 p.m., and every Friday commencing at 4:30 p.m. and concluding Sunday at 10 a.m.

         The court scheduled the next dispositional review hearing for the other three ...


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