Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/22/2019 01:09 AM CST
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IN RE INTEREST OF MERCEDES L. ET AL.
Cite as 26 Neb. App. 737
In re I nterest of
Mercedes L. et al.,
18 years of age.
children under
State of Nebraska, appellee, v. A ngaline L.,
appellant, and Oglala Sioux Tribe and
Winnebago Tribe of Nebraska,
intervenors-appellees.
___ N.W.2d ___
Filed January 15, 2019. Nos. A-17-1281 through A-17-1286.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently 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
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IN RE INTEREST OF MERCEDES L. ET AL.
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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 appeal-
able 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 objec-
tive 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 juve-
nile 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 disposi-
tional order.
Appeal from the County Court for Platte County: Frank J.
Skorupa, Judge. Affirmed in part, and in part vacated.
Sharon E. Joseph for appellant.
Breanna D. Anderson, Deputy Platte County Attorney, for
appellee.
Jacqueline Tessendorf, of Tessendorf & Tessendorf, P.C.,
guardian ad litem.
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IN RE INTEREST OF MERCEDES L. ET AL.
Cite as 26 Neb. App. 737
Pirtle, R iedmann, 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 reunifi-
cation 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 spe-
cial 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
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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 regard-
ing 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 testi-
mony, that there had been a diligent search for placement with
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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 mean-
ing of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015). The jour-
nal entry and orders of December 9, 2015, reflect an agree-
ment 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 interven-
tion on December 17, 2015, with regard to Makario. The tribe
remained a party to this case, but expressed no desire to trans-
fer 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 reunifica-
tion. 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 reunifica-
tion, 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 rea-
sonable efforts included case management, foster and kinship
placement, foster care support, family support services, super-
vised visitation, and therapeutic services.
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IN RE INTEREST OF MERCEDES L. ET AL.
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At a hearing on January 9, 2017, the court received a case
plan/court report prepared on December 29, 2016, as exhibit
3. Exhibit 3 contains a recommended permanency objective
of reunification with a concurrent plan for guardianship. The
court accepted and approved exhibit 3 and specifically found
that DHHS “is making active efforts to reach the permanency
objective previously ordered by the Court and all parties are
ordered to comply with the case plan/court report.”
At a hearing on April 10, 2017, the court found that “[a]ctive
efforts have been made to provide remedial services and reha-
bilitative programs designed to prevent the breakup of the
Indian family; those efforts, at this time, have been unsuccess-
ful.” Active efforts included home visits, family assessments,
case management, family support services, parenting time,
therapy, and Medicaid. The guardian ad litem stated that she
had seen improvement in Angaline’s attitude. She offered an
opinion that “a guardianship would be good as long as there’s
continued relationship with the children, but the kids are old
enough that they want to be around their mom and I think
that’s important.”
On June 22, 2017, the Oglala Sioux Tribe filed a motion to
transfer jurisdiction and dismiss and a motion to intervene. The
court set a hearing on the motions for July 11. At the hearing
on July 11, the attorney representing the tribe requested time to
confer with the tribe and determine what it’s position was on
the motion to transfer jurisdiction, in light of the evidence that
“the children were not in favor of a transfer.” The hearing was
continued to August 8, at which time the tribe withdrew the
motion to transfer jurisdiction.
At the August 8, 2017, hearing, the court received the
June 13 case plan/court report as exhibit 4. Exhibit 4 con-
tains a recommended change in the permanency objective
from reunification with a concurrent plan for guardianship
to a recommendation of guardianship. Angaline objected to
the change in the permanency objective. The court ordered
placement to continue with DHHS and found that reasonable
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and active efforts included case management, family team
meetings, home visits, Medicaid, family support, drug test-
ing, parenting time, safety planning, referrals to providers
for evaluation, and “contact with the tribe.” The court found
that DHHS has made reasonable efforts toward the perma-
nency goal.
On August 10, 2017, the guardian ad litem filed peti-
tions for appointment of a permanent guardian for each child.
The court set a hearing to take up the petitions for appoint-
ment and Angaline’s objection to the change in the perma-
nency objective.
Hearings took place on October 24, October 31, and
November 8, 2017. An email from a representative of the
Oglala Sioux Tribe was offered and received as exhibit 5. The
email granted permission for the State to make the affirma-
tion on the record that the tribe supported the State’s plan
for guardianship.
Lynda McCullough, a child and family services specialist
with DHHS, is the case manager for Angaline and the minor
children. She testified that the children have continuously been
in the custody of DHHS since April 2015. At the time of the
hearing, all of the children resided with the same foster family.
Three of the children have been placed with the current foster
family since 2015, and the other three have been placed with
the current family since 2016. She testified that it is the recom-
mendation of DHHS that the children achieve “permanency of
guardianship” with the foster family.
McCullough testified that there have been some problems
reported to her with regard to Angaline. On one occasion,
Angaline told Ricardo to cancel plans to attend a friend’s birth-
day party, because she planned to have a birthday party for
Ricardo. Angaline “did not produce the party [as] promised,”
and the foster family reported that he had been “crushed.”
He was disappointed that he had missed his friend’s birthday
party and that he did not have his own. Angaline testified that
she did not make Ricardo stay home from the birthday party,
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but, rather, Ricardo told her he had not wanted to attend the
friend’s birthday party and did not know how to tell his foster
mother, so Angaline helped him.
McCullough testified that there was some concern that
Angaline was not adequately caring for the children’s spe-
cific medical needs. Xavier has a condition called necrotized
enterocolitis that resulted in the removal of part of his intes-
tine. Xavier has a feeding tube, and because of his compro-
mised digestive system, he is unable to process sugars prop-
erly. He is limited to 6 grams of sugar per day and can have
serious complications if he consumes more than that amount.
Xavier has made progress while in the care of the foster
family, to the extent that he may be able to have the feeding
tube removed.
Concerns were raised by the guardian ad litem and the
court at the hearings in January and April 2017 that Angaline
was not careful enough with regard to the foods that were
provided to Xavier at visits. As a result, Xavier became ill
upon his return to his foster home. McCullough testified on
October 24 that Angaline texted the foster mother on one
occasion to inform her that “Xavier will be having sugar at
my home this weekend.” McCullough testified that Angaline
had said she would let Xavier have sugar “when she got him
back.” McCullough considered this a safety concern, because
it showed a lack of concern for Xavier’s health. There were
no reports of concerns regarding Xavier’s sugar intake after
September 2017.
McCullough testified that Angaline participated in therapy
“occasionally,” until the end of April 2017, then she had
stopped attending. The therapist told McCullough that therapy
was no longer appropriate because of Angaline’s inconsistency
in attending. Angaline testified that she spoke to the therapist
and that she was under the impression she could return to
therapy after “[her] grandma was better.” Her grandmother
passed away in the end of May 2017, and another grand-
mother passed away in June 2017. There was no evidence
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that Angaline attempted to return to therapy after April 2017.
Angaline testified that she enrolled in some outpatient classes
to work on parenting skills and anger management. She com-
pleted counseling services, but the counselor was no longer
approved by DHHS.
Angaline worked at a fast-food restaurant for 6 or 7 months,
and McCullough confirmed her employment. Since then,
Angaline has reported doing work for various employers, but
she has not responded to McCullough’s request for a pay stub
or a verification from her employer. On November 8, 2017,
Angaline testified that she applied for a factory job, but if it
did not work out, she has a friend who would give her a job at
a gas station.
Angaline tested positive for opiates on August 14, 2017, and
she did not report taking a prescription drug that would account
for the positive test. Angaline did not participate in drug test-
ing during the month of September 2017. If a parent does not
participate in testing, it is considered to be a positive test.
Angaline testified that she had missed testing in September
because she had been out of town for work. Angaline agreed
to drug testing at the October 24 hearing and tested negative
for controlled substances. She testified that she has been sober
since December 2011.
At the time of the hearing, Angaline was approved and
scheduled for visits for 20 hours per week, which took place
on Saturdays and Sundays. McCullough testified that there is
some “friction” between Mercedes and Angaline at visits. She
said Angaline has “had some good days, she’s had some bad
days” with regard to visits. She said there have been some
days when the children do not want to attend visits because
they have activities or field trips planned. McCullough said
Angaline tells the children, “Remember if you don’t want to do
the family activities, don’t even bother coming.” McCullough
said that typically during visits, the children watch televi-
sion, “play[] games on their phones,” sleep, and occasionally
play outside.
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IN RE INTEREST OF MERCEDES L. ET AL.
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Angaline testified that during visits, Mercedes and Makario
like to sleep or spend time by themselves. She asks the
younger children to help prepare lunches, and they play sports,
build forts, read books, and do other activities. She tries to set
aside one-on-one time with the younger children. She testified
that her family support worker suggested notifying the chil-
dren, specifically Mercedes and Makario, when there would
be a family activity planned for the next day and that they had
the option of doing the planned activity or opting not to come
to the visit.
A family support worker testified that on an average day at
a visit, the children would come into the house, hug Angaline,
and separate and “do their own thing.” He said that Angaline
spends time with each child and that he has seen her use appro-
priate discipline and take steps to make sure only appropriate
individuals are present during visits.
McCullough testified that the children are involved in a
variety of activities with the support of the foster family. Such
activities include 4-H, wrestling, football, dance classes, and
“circle time” with the Ponca Tribe. Mercedes decided to forgo
some of her former activities, because she wanted more free
time to focus on her job at a fast-food restaurant. The children
all help “gather eggs from the chickens” and “care [for] the
animals” at their foster home.
The children’s foster mother testified that she and her hus-
band requested appointment as guardian of each of the six
children. She stated that they have the means to provide proper
housing and food for the children and that the children would
be able to regularly attend school and participate in activities.
She testified that she would be willing to allow the children
to visit with Angaline if a guardianship was established and
that she would encourage a relationship between the children
and Angaline.
McCullough stated that since she became involved with the
family, she has observed “very little” progress, and that she
was not in a position to recommend that the children be placed
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with Angaline. She stated her belief that the children are in
need of permanency and that permanency can be achieved
through a guardianship with the foster family.
A representative from the Winnebago Tribe of Nebraska
stated that the tribe would stand by the position asserted in an
affidavit filed on September 18, 2017. The representative stated
the affidavit expressed the tribe’s approval of a guardianship
for Makario.
Angaline testified that Mercedes had asked her to sign
guardianship papers and that Makario had told her at one time
to sign and at another time that he did not want her to sign
them. She stated that it is not her desire for the children to be
in a guardianship, because she believes she is able to care for
the children.
The court asked Mercedes and Makario to give their thoughts
on a potential guardianship. Mercedes said, “I consent to it; I
agree. I think the kids would be better off. I mean I’m graduat-
ing this year so it doesn’t really affect me that much.” When
asked, “What do you think about a guardianship?” Makario
responded, “I’d like that.” Both children expressed a desire to
maintain contact with Angaline.
On November 13, 2017, the court filed an order for each
child overruling Angaline’s objection to the permanency objec-
tive of guardianship and finding by clear and convincing evi-
dence that it was in the best interests of each child that the
proposed change in the permanency objective be approved. In
its orders, the court set a hearing on the guardian ad litem’s
petitions for appointment of a guardian for each child to take
place 2 weeks later on November 27. On November 27, the day
of the hearing for appointment of a guardian, Angaline filed
in each case an “Objection to Guardianship.” The court con-
ducted the hearing on November 27, and the cases were taken
under advisement.
Prior to the court ruling on the guardian ad litem’s petitions
for appointment of a guardian for each child, Angaline filed
a notice of appeal in each case on December 11, 2017. Each
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notice of appeal stated that she was giving notice “of her inten-
tion to appeal the order imposed upon her in this matter, to the
Court of Appeals of Nebraska. Final Order in this matter was
filed on November 13, 2017.”
A hearing was held on December 12, 2017. On that day,
the court filed orders specifically appointing an individual,
the foster father, as permanent guardian of each of the chil-
dren. The orders delineated the specific responsibilities of the
guardian and relieved DHHS of the responsibility of supervis-
ing the placement of the children.
III. ASSIGNMENTS OF ERROR
Angaline asserts the county court erred in changing the per-
manency objective to guardianship. She also asserts the court
erred in appointing a guardian for the children, arguing that
the court did not adhere to the requirements of ICWA and the
Nebraska Indian Child Welfare Act (NICWA).
IV. STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. In re Interest of Jaydon W. & Ethan
W., 25 Neb. App. 562, 909 N.W.2d 385 (2018).
V. ANALYSIS
1. Jurisdiction
[2-4] In a juvenile case, as in any other appeal, before reach-
ing 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. In re Interest of Jaydon W. & Ethan W., supra.
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. Id. 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. Id. Thus, if the juvenile court’s orders
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changing the permanency objective affected Angaline’s sub-
stantial right to raise her six children, the orders were final and
appealable. But if the orders did not affect a substantial right,
we lack jurisdiction and must dismiss the appeals.
[5-8] A substantial right is an essential right, not a mere
technical right. In re Interest of Jaydon W. & Ethan W., supra.
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 par-
ent’s relationship with the juvenile may reasonably be expected
to be disturbed. Id. 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. Id.
Thus, a dispositional order which merely continues a previous
determination is not an appealable order. Id.
On January 18, 2018, this court issued an order to show
cause because it was not clear whether the November 13,
2017, orders were final and appealable. In her response,
Angaline argued that a substantial right was affected because
the November 13 orders did not contain a plan to assist in her
rehabilitation or to reunite her with her children and because
the December 12, 2017, orders established a guardianship. On
February 9, 2018, we ordered the case to proceed, reserving the
issue of jurisdiction for later determination.
The parties addressed the issue of whether the juvenile
court’s November 13, 2017, orders changing the permanency
objective to guardianship were final, appealable orders. The
State and the guardian ad litem contend that the orders did
not affect a substantial right and, as such, they are not final,
appealable orders and that this court lacks jurisdiction over this
appeal. Conversely, Angaline contends:
Additionally, there was no continuing plan to allow or
assist [Angaline] in rehabilitation to reunite with her
children in the case plan of June 13, 2017, in the order
of November 13, 2017 changing the permanency goal
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to guardianship with no concurrent goal for reunifica-
tion, or in the order of December 12, 2017 granting the
guardianship. Thus, the substantial right of [Angaline]
to parent her children is affected and is a final appeal-
able order.
Brief for appellant at 5.
We note that in Angaline’s statement of jurisdiction in her
brief, she asserts she “filed a timely Notice of Appeal on
December 13, 2017.” Brief for appellant at 5. However, in
each case the file stamp indicates that the notice of appeal and
motion and affidavit to proceed in forma pauperis were efiled
in the Platte County Court on the afternoon of December 11.
The notices of appeal state, “Final Order in this matter was
filed on November 13, 2017.”
At oral argument, the parties indicated that the notices of
appeal were filed December 12, 2017. The court asked the par-
ties if they would be willing to enter into a stipulation agreeing
to such, and they indicated that they would. A stipulation was
subsequently filed with this court; however, after reviewing
the record, we find in each case that the notice of appeal and
motion and affidavit to proceed in forma pauperis were efiled
by Angaline on December 11.
Angaline encourages this court to consider the county
court’s orders of December 12, 2017, in determining that the
November 13 orders are final. The December 12 orders were
issued after the notices of appeal were filed, and therefore,
they do not control the jurisdictional question in these cases,
which is whether the November 13 orders are final. See, gen-
erally, Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018).
Upon our review, we find Angaline appealed from the orders
of November 13, not the orders of December 12. For the
sake of completeness, we note that the December 12 orders
were issued after Angaline filed her notices of appeal. If the
November 13 orders were not final orders, then Angaline failed
to perfect appeals from the December 12 orders within 30 days
as required by Neb. Rev. Stat. § 25-1912(1) (Reissue 2016).
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If the November 13 orders were final orders, then we must
address whether the court had jurisdiction to appoint a guard-
ian as it did in its December 12 orders.
We must first determine whether the November 13, 2017,
orders, standing alone, are final and appealable. The appeal-
ability of an order changing the permanency goal is not
always clear. In In re Interest of Tayla R., 17 Neb. App. 595,
767 N.W.2d 127 (2009), the mother appealed from a review
order in which the permanency objective had changed from
reunification to adoption. This court stated that, in determin-
ing whether this provision affected a substantial right of the
mother, a pertinent inquiry was whether there was still a plan
allowing her to take steps to reunite with the children. We
also observed that the new order contained the same services
as the previous order, it did not change the mother’s visitation
or status, and it implicitly provided the mother an opportunity
for reunification by complying with the terms of the reha-
bilitation plan. We found the order did not affect a substantial
right, and the appeal was dismissed for lack of a final, appeal-
able order.
In In re Interest of Diana M. et al., 20 Neb. App. 472, 825
N.W.2d 811 (2013), the order modifying the permanency plan
objective was coupled with an order ceasing further reasonable
efforts to bring about reunification. Thus, the court found the
order was appealable.
The Nebraska Supreme Court has also based its analysis of
appealability, not just on the language of the order, but also on
an examination of the colloquy between counsel and the trial
judge at the hearing. See In re Interest of Octavio B. et al., 290
Neb. 589, 861 N.W.2d 415 (2015). In In re Interest of Octavio
B. et al., the Supreme Court found the “juvenile court’s state-
ments from the bench essentially eviscerated the opportunity
to achieve reunification.” 290 Neb. at 598, 861 N.W.2d at
423. The Supreme Court was swayed by the court’s statement
relieving DHHS from providing services to the mother that
were inconsistent with the new permanency goals.
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[9] Nebraska case law demonstrates that the appealability
of an order changing the permanency objective in a juvenile
case is a fact-specific inquiry. Accordingly, we have reviewed
the case plans, proceedings, and orders of the county court
to determine whether the November 13, 2017, orders affect a
substantial right in a special proceeding.
The case plan dated December 29, 2016, includes a
“Caregiver Plan,” which includes listed priorities based upon
the identified needs of the family. Each priority listed includes
a goal, strategies by which the parent will achieve the goal,
services which will be provided, and a summary of the parents’
progress toward the goal. The goals identified for Angaline
include providing a safe and stable living environment and
learning to effectively parent her children based upon their
developmental and emotional needs. The June 13, 2017, case
plan, which was adopted by the court in its November 13
orders, does not include a similar “Caregiver Plan.”
The June 13, 2017, court report/case plan states that
Angaline is authorized 20 hours of visitation per week. The
report states, “It is respectfully recommended that supervised
visitations be ended upon completion of the Guardianship
and that [the proposed guardians] monitor and agree to visi-
tations with [Angaline] as they deem appropriate and at the
recommendation of the children’s therapists.” It is not clear
in the June 13 plan what, if any, additional services are being
provided or will continue to be provided upon adoption of
the plan. However, the absence of a clear plan for Angaline
weighs in favor of a finding that the adoption of this case
plan affects a substantial right. The case plan also includes a
section titled “Additional Recommendations,” which states,
“[DHHS] respectfully recommends to the Juvenile Court of
Platte County the establishment of the Guardianship and dis-
missal of DHHS from the case.”
In adopting the June 13, 2017, case plan in its November
13 orders, the court found, “The evidence is clear and con-
vincing that it is in the best interest of the minor child that
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the permanency goal of guardianship should be approved.”
There was no order ceasing further reasonable efforts at that
time and no specific finding at the hearing or in the orders
that DHHS was being dismissed from the cases at that time.
However, the November 13 orders set a hearing on the guard-
ian ad litem’s petitions for appointment of a guardian for
each child for November 27, approximately 2 weeks later.
Therefore, Angaline was provided very little time for rehabili-
tation if she hoped to avoid the appointment of a guardian for
her children.
Upon our de novo review of the record, we find the
November 13, 2017, orders essentially eviscerated Angaline’s
opportunity to achieve reunification and, therefore, affected a
substantial right. Thus, we hold that the court’s November 13
orders were final and appealable.
2. Change of Permanency Plan
Angaline first asserts the court erred by finding in its
November 13, 2017, orders that it was in the children’s best
interests to change the permanency plan from reunification
with a concurrent plan for guardianship to guardianship only.
Specifically, Angaline asserts the State failed to provide that
she is unfit and unable to rehabilitate herself such that active
efforts toward reunification are not needed and a guardianship
is appropriate.
[10-13] Our Supreme Court has held that “[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.” In
re Interest of Samantha L. & Jasmine L., 286 Neb. 778, 786,
839 N.W.2d 265, 271 (2013). Further, the Supreme Court
has stated:
The foremost purpose and objective of the Nebraska
Juvenile Code is the protection of a juvenile’s best inter-
ests, with preservation of the juvenile’s familial relation-
ship with his or her parents where the continuation of
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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. Once
a child has been adjudicated under § 43-247(3), 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. The State has
the burden of proving that a case plan is in the child’s
best interests.
In re Interest of Octavio B. et al., 290 Neb. 589, 599-600, 861
N.W.2d 415, 424 (2015).
In the November 13, 2017, orders, the county court noted
that poor progress was being made to alleviate the causes of
the out-of-home placements and listed factors which weighed
in favor of a change in the permanency objective. The court
mentioned instability in Angaline’s life, specifically the fact
that since Angaline’s release from incarceration, she has not
demonstrated that she can maintain employment or a stable
home for the children. The court also considered the length
of time the children had been in foster care and their suc-
cesses in school and extracurricular activities while living in a
stable environment. The court considered the stated desire of
the oldest two children for guardianship and the Oglala Sioux
Tribe’s agreement with the permanency goal of guardianship.
The Winnebago Tribe of Nebraska approved of a goal of
guardianship for Makario, the only child in this case who is an
enrolled member.
The record shows that DHHS became involved with
Angaline and the children in July 2015 and that the children
have been in out-of-home placement since August 2015, when
Angaline became incarcerated for child abuse and neglect.
Since then, DHHS has provided the family with services,
including family support, parenting time, foster care, fam-
ily team meetings, safety planning, Medicaid, family therapy
and counseling, case management, and referrals to providers
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for evaluations. Angaline’s goals included: (1) providing a
safe and stable living environment; (2) maintaining a home
residence and full-time employment; (3) providing for the chil-
dren’s basic daily needs, as well as Xavier’s and Geovanny’s
special needs; (4) caring for her own mental health needs; (5)
refraining from the use of drugs and alcohol; (5) not allowing
illegal activity or drug users in the home; and (6) learning to
effectively parent her children based on their developmental
and emotional needs.
Angaline has not demonstrated sufficient progress toward
the goal of reunification. The record shows that Angaline has
struggled with caring for the specific medical needs of at least
one child and that family therapy has been discontinued due
to Angaline’s lack of consistency in attending the sessions.
Despite Angaline’s participation in some court-ordered serv
ices, she has demonstrated she is either unwilling or unable
to make the necessary changes in her life. Children cannot,
and should not, be suspended in foster care or be made to
await uncertain parental maturity. In re Interest of Octavio
B. et al., supra. Upon our de novo review, we find it was
in the children’s best interests to change the permanency
objective to guardianship. Thus, the county court did not err
in changing the permanency objective to a plan for guard-
ianship after over 2 years of reasonable and active efforts
yielded little progress.
3. Compliance With ICWA and NICWA
(a) Appointment of Guardian
Without Expert Testimony
Angaline next asserts the court failed to comply with
ICWA and NICWA by finding that there had been active
efforts toward reunification despite the lack of testimony by
a qualified expert witness. Specifically, Angaline asserts the
court erred in appointing a guardian for each child despite
the lack of expert witness testimony, as required by ICWA
and NICWA.
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[14] Angaline appealed from the November 13, 2017, orders
that changed the permanency objective from reunification to
guardianship. She did not appeal from the December 12 orders
where the court appointed the guardian. To the extent that
Angaline argues that appointment of a guardian was in error,
we decline to address this issue because it does not relate to
the November 13 orders, from which she appealed. See In re
Interest of Paxton H., 300 Neb. 446, 915 N.W.2d 45 (2018)
(appellate courts will not consider issues on appeal that were
not presented to or passed upon by trial court). That said, as
noted above, the court’s December 12 orders were issued after
Angaline perfected her appeals from final orders rendering
those orders null.
(b) Active Efforts
Angaline next argues that the court erred when “the lower
court relieved the State of the responsibility to provide active
efforts to reunify the family.” Brief for appellant at 27-28. We
understand this argument as being in reference to the change in
permanency objective and not in reference to the appointments
of guardian on December 12, 2017. Angaline argues that the
State failed to prove that she was unfit and unable to rehabili-
tate herself such that active efforts toward reunification were
not needed and guardianships were appropriate and in the best
interests of the minor children. Angaline further argues that the
State “failed to make active efforts to reunify the Indian Family
throughout the entire case.” Id. at 28.
Neb. Rev. Stat. § 43-1505(4) (Reissue 2016) provides:
Any party seeking to effect a foster care placement of,
or termination of parental rights to, an Indian child under
state law shall satisfy the court that active efforts have
been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian
family . . . and that these efforts have proved unsuccessful.
We first note that the November 13, 2017, orders neither
sought to effect the foster care placement of or termination
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of parental rights of Angaline. Her children were already
placed with foster parents, and the orders dealt only with the
change in permanency objective. Assuming without deciding
that § 43-1505(4) applies to a change in permanency objective,
upon our de novo review of the record, we find that active
efforts had been made but that Angaline did not demonstrate
sufficient progress toward a goal of reunification. Throughout
the pendency of this matter, the court routinely reviewed the
case plan/court reports prepared by DHHS, which were offered
and received at the review hearings. Angaline did not object
at any point to contest the State’s position that active efforts
were being made. The court specifically found on December
9, 2015, and July 18, 2016, as well as January 9, April 10, and
August 8, 2017, that active efforts were, in fact, being made.
The court often listed the efforts that were provided, which
included family support, parenting time, foster care, fam-
ily team meetings, safety planning, Medicaid, family therapy
and counseling, case management, and referrals to providers
for evaluations.
Angaline argues that the State ceased to provide active
efforts “by April, 2017, if not before.” Brief for appellant at
34. She argues that, although she was approved for approxi-
mately 20 hours of visitation each week, McCullough did not
“enforce visitation” and allowed the children to attend other
activities during the time designated for visits. Brief for appel-
lant at 34. The record shows that the children were not forced
to attend visits, but, rather, the foster family encouraged a
relationship between the children and Angaline. The record
shows the children are active in school, church activities, and
sports, so they were not always able to attend visits. Angaline
was asked, “And you completely understand if they have sport-
ing events that they might miss the visits?” She responded
“Yeah. I normally try to attend those things.” Further, Angaline
acknowledged that she told the children that if they did not
want to participate in family activities which would take place
during visits, they could opt out of attending. Visits and family
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support services were still being provided at the time of the
hearing on Angaline’s objection to the change in the perma-
nency objective.
Angaline also argues that DHHS “refused her a gas voucher
for counseling.” Brief for appellant at 35. The evidence shows
that Angaline requested a gas voucher from the caseworker,
but it was not requested far enough in advance to comply with
DHHS rules. The record shows that Angaline was told that
the caseworker could make arrangements for transportation,
but there was not enough time to generate a gas voucher. The
caseworker stated that Angaline was aware that requesting a
gas voucher 48 hours in advance was a requirement. On that
occasion, the gas voucher was not approved, and Angaline
never asked for one again. To the extent that Angaline’s argu-
ment is predicated upon the one incident that a gas voucher
was refused, this argument is without merit.
The evidence shows that Angaline stopped attending coun-
seling regularly in April 2017, at which time the therapist
recommended that therapy be discontinued. Angaline testified
that she stopped attending due to conflicts with her employ-
ment, which was unconfirmed, or due to her grandmother’s
failing health. There is no evidence that Angaline attempted to
return to therapy after April 2017. Angaline did not regularly
comply with drug testing, although the services were being
provided. There is no evidence that the State “ceased provid-
ing active efforts by April, 2017,” as alleged by Angaline.
Brief for appellant at 34. We find this assignment of error to
be without merit.
(c) December 12, 2017, Orders
[15] As stated earlier in this opinion, the court entered its
orders appointing a guardian for each child on December
12, 2017, which was 1 day after Angaline appealed from the
court’s November 13 orders which we have held to be final
orders. Because the court was divested of jurisdiction by those
appeals, its orders dated December 12, 2017, are null and void.
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See In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d
247 (2017) (continuing jurisdiction of juvenile court pending
appeal from adjudication does not include power to enter per-
manent dispositional order).
VI. CONCLUSION
Because the county court’s orders affected Angaline’s sub-
stantial right to raise her children, the November 13, 2017,
orders were final and appealable. Upon our de novo review, we
find the evidence supports the change in the permanency objec-
tive from a primary plan of reunification with Angaline, with
a concurrent plan of guardianship, to a plan for guardianship
only. Because the guardianships were not established until after
Angaline’s appeals from these orders, we cannot review her
assignments of error with regard to the appointment of a guard-
ian for each child; however, we hold that the court’s orders of
December 12 were null and void and vacate those orders. The
November 13 orders of the county court are affirmed.
A ffirmed in part, and in part vacated.
Pirtle, Judge, dissenting.
Assuming, for purposes of discussion, that the majority
is correct in concluding that the orders appealed from, dated
November 13, 2017, were “final, appealable order[s]” as is
needed for us to acquire jurisdiction over these appeals, then
to that extent, I agree with the analysis of the remaining issues
and the result reached by the majority opinion.
However, I believe there is a very serious question under our
existing case law and the facts herein whether the November
13, 2017, orders were final orders which affected a substan-
tial right of Angaline. These appeals are somewhat unique
because we are dealing with not a termination of parental
rights or an adoption, but, rather, issues related to the prepara-
tion for and establishment of a guardianship. The November
13 orders approved a change in the permanency objective to
guardianship. In the December 12 orders, the court established
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a guardianship for each of these six children and appointed
a guardian.
Angaline filed her notices of appeal on December 11, 2017,
which was 1 day before the orders in which the court estab-
lished a guardianship for each child and appointed a guardian.
That was 28 days after the entry of the November 13 orders.
The county court then held an additional hearing and entered
additional orders on December 12. No appeals were taken by
Angaline following the December 12 orders, yet as the major-
ity points out, Angaline “encourages this court to consider the
county court’s orders of December 12, 2017, in determining
that the November 13 orders are final.” As stated by the major-
ity, the December 12 orders “do not control the jurisdictional
question in these cases, which is whether the November 13
orders are final.”
I agree with the majority that if the November 13, 2017,
orders were final, appealable orders, then the hearing and the
orders on December 12 would be both null and void, as the
county court would have been without jurisdiction following
the notices of appeal, which were filed on December 11. This
supports the assertion that the December 12 orders cannot
be used to determine the finality of the November 13 orders.
For the sake of completeness, I would also note that if the
November 13 orders were not final, the December 12 orders
are not rendered void. See, Anderson v. Finkle, 296 Neb. 797,
896 N.W.2d 606 (2017); In re Guardianship of Sophia M., 271
Neb. 133, 710 N.W.2d 312 (2006) (notice of appeal from non-
appealable order does not render void for lack of jurisdiction
acts of trial court taken in interval between filing of notice and
dismissal of appeal by appellate court).
Had Angaline waited until the 30th day to file her appeals,
on December 13, 2017, instead of December 11, she could
have challenged the change in the permanency objective, as
well as the establishment of a guardianship and the appoint-
ment of a guardian. She also could have filed separate notices
of appeal from the December 12 orders up until January 11,
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2018, the 30th day following those orders. If so, assuming the
December 12, 2017, orders were final, appealable orders, we
could have decided those appeals on the merits, with regard
to the establishment of a guardianship and appointment of
a guardian.
Because Angaline appealed before the court’s December
12, 2017, orders, we cannot reach any issue with regard to the
establishment of a guardianship or the appointment of a guard-
ian. Upon a de novo review of the record, I come to a different
conclusion than the majority with regard to the finality of the
November 13 orders.
This court is often faced with an appeal of an order in a
juvenile case in which the court is modifying to some degree
the permanency objective for the child prior to actually termi-
nating parental rights or appointing a guardian, as in this case.
I agree with the majority that the appealability of such an order
is not always clear. See In re Interest of Tayla R., 17 Neb.
App. 595, 767 N.W.2d 127 (2009). See, also, In re Interest of
Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015).
The transcripts in the instant cases show that on December
12, 2017, the day after Angaline filed her appeals, the county
court held another hearing and entered orders explaining some
of the rights and duties of the guardian. These orders state that
“the guardianship placement shall be considered permanent
for the child.” Other terms of the guardianship also appear to
assume a permanent change in the children’s status, such as a
provision that the guardianship shall terminate on the child’s
19th birthday. In other words, it certainly appears that the
juvenile court is not anticipating steps that Angaline could take
that would allow her to reunite with the children, and thus,
the December 12 orders might be appealable as affecting her
substantial rights.
My jurisdiction question stems from whether the terms of
the November 13, 2017, orders, in and of themselves, are
sufficient to permit this court to find that they are final and
appealable. In those orders, the court recounts Angaline’s
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unsatisfactory history and states that “it is in the best inter-
est of the minor child that the permanency goal of guardian-
ship should be approved.” I believe it is at least questionable
whether this court could determine, solely from the language in
the orders, whether Angaline’s substantial rights are affected.
However, once the terms of the December 12 orders are
reviewed, which, unfortunately, we are not allowed to do, they
more clearly could have been final, appealable orders.
I believe these cases are similar to the facts in In re Interest
of Kenneth B. et al., 25 Neb. App. 578, 909 N.W.2d 658
(2018). In that case, the separate juvenile court changed the
permanency objective from reunification to guardianship. The
March 2017 order was silent on services available to the father,
but in October 2016, he had been ordered to participate in
supervised visitation and family therapy as recommended by
the children’s therapists, obtain safe and adequate housing,
and follow the rules and regulations of his parole. The March
order did not explicitly cease services and obligations from
the October order. At the March hearing, the juvenile court
stated that it was adopting DHHS’ recommendations, includ-
ing that the father continue to receive services and perform
his obligations. The court stated, “It is evident that the serv
ices, visitation, and obligations the juvenile court previously
ordered concerning [the father] were to continue after the
March order.” In re Interest of Kenneth B. et al., 25 Neb. App.
at 586, 909 N.W.2d at 664. We also noted that the juvenile
court included “qualifying language during its oral pronounce-
ment at the March 2017 hearing of the permanency objective,
saying that ‘[t]he singular permanency plan in this case at this
time is one of guardianship.’” Id. (emphasis in original). This
court found that the use of qualifying language taken together
with the juvenile court’s ordering that a further review hearing
be held in 5 months implies rehabilitation and reunification
remained a possibility. We found we were without jurisdiction
to review the father’s appeal of the March order, and the appeal
was dismissed.
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In In re Interest of Diana M. et al., 20 Neb. App. 472, 825
N.W.2d 811 (2013), the order modifying the permanency plan
objective was coupled with an order ceasing further reasonable
efforts to bring about reunification. Thus, the court found the
order was appealable. The November 13, 2017, orders con-
tained no such provision. Further, in In re Interest of Octavio
B. et al., 290 Neb. 589, 598, 861 N.W.2d 415, 423 (2015), the
Nebraska Supreme Court found the court’s statements from
the bench “essentially eviscerated the opportunity to achieve
reunification.” Upon our review of the bill of exceptions, there
does not appear to be any colloquy between Angaline and the
court to the same effect, and there was no specific finding that
DHHS was being dismissed at that time.
The Supreme Court has found that orders which do not con-
stitute an adjudicative or dispositive action in the proceedings
are not final orders. See In re Interest of Ezra C., 25 Neb. App.
588, 910 N.W.2d 810 (2018), citing In re Interest of Jassenia
H., 291 Neb. 107, 864 N.W.2d 242 (2015). In such cases, the
court has found that it is without jurisdiction on appeal as no
substantial right had been affected.
So here, for the reasons stated above, I seriously question
whether the orders entered on November 13, 2017, in and
of themselves, affected a substantial right of Angaline, and
therefore, I would find that they were not final and appealable
orders. On that issue only, I disagree with the majority opin-
ion and I would have concluded we were without jurisdiction
to consider these appeals, thus dismissing them. As a result, I
respectfully dissent.