In re Interest of Jamyia M.

281 Neb. 964

800 N.W.2d 259

In re Interest of JAMYIA M., a child under 18 years of age.State of Nebraska, appellee and cross-appellee,

v.Jamison M., appellee and cross-appellant,andShinai S., appellant.

No. S–10–208.

Supreme Court of Nebraska.

July 22, 2011.

Syllabus by the Court

1. 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.

2. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the court below.

3. 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.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.

5. Final Orders: Appeal and Error. There are three types of final orders that may be reviewed on appeal: (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made upon summary application in an action after a judgment is rendered.

6. Juvenile Courts: Appeal and Error. A proceeding before a juvenile court is a special proceeding for appellate purposes.

7. Jurisdiction: Final Orders: Time: Notice: Appeal and Error. In order to vest an appellate court with jurisdiction, a notice of appeal must be filed within 30 days of the entry of the final order.

8. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court of Appeals, the Nebraska Supreme Court may consider, as it deems appropriate, some or all of the assignments of error the Court of Appeals did not reach.

9. Judges: Recusal: Presumptions. A party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality.

10. Appeal and Error. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

Jeremy R. Shirk for appellant.

Donald W. Kleine, Douglas County Attorney, and Amy Schuchman for appellee State of Nebraska.Thomas C. Riley, Douglas County Public Defender, and Christine D. Kellogg for appellee Jamison M.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.GERRARD, J.

The State of Nebraska seeks further review of a Nebraska Court of Appeals' decision which reversed the order of the juvenile court for Douglas County terminating the parental rights of Jamyia M.'s natural parents, Shinai S. and Jamison M. Jamyia, a minor child of Navajo descent, was removed from her parents' home after doctors discovered that she suffered injuries consistent with shaken baby syndrome. Shinai and Jamison appealed, and the Court of Appeals reversed.¹ The State petitioned for further review. For the following reasons, we reverse the decision of the Court of Appeals and remand the cause with directions to affirm the order of the juvenile court.

I. BACKGROUND

On September 30, 2008, 2–month–old Jamyia was hospitalized with a posterior occipital subdural hemorrhage and either a subarachnoid hemorrhage or cerebral contusion. Doctors concluded that Jamyia's injuries were consistent with shaken baby syndrome and that her injuries were intentionally inflicted. Shinai and Jamison claimed that they did not cause Jamyia's injuries.

The State filed an adjudication petition alleging that the juvenile court had obtained jurisdiction in these proceedings based upon the natural parents' placing Jamyia in a situation which was dangerous to her life or limb or injurious to her health or morals within the meaning of Neb.Rev.Stat. § 43–247(3)(a) (Reissue 2008). The State then filed an amended petition, alleging that Shinai's and Jamison's parental rights should be terminated pursuant to Neb.Rev.Stat. § 43–292(2), (8), (9), and (10)(d) (Reissue 2008).

The State also alleged that pursuant to Neb.Rev.Stat. § 43–1505(4) (Reissue 2008) of the Nebraska Indian Child Welfare Act (NICWA), “active efforts” had been made to prevent the breakup of the Indian family, but that those efforts had been unsuccessful; so NICWA's requirement of providing active efforts before foster care placement or termination of Shinai's and Jamison's parental rights was satisfied. The State argued, in the alternative, that active efforts to prevent the breakup of the Indian family were not required because Jamyia's parents subjected her to aggravated circumstances. Shinai and Jamison argued that NICWA contained no aggravated circumstances exception and that active efforts had not been made. Adjudication hearings were held from February 19 to November 12, 2009. A summary of the salient testimony adduced during the adjudication hearings follows.

Dr. Katherine Penny, Jamyia's pediatrician, testified that Jamyia had been brought in to her office for care on September 29, 2008, because she had been screaming and fussy, had cold symptoms, and refused to eat. Penny testified that she fed Jamyia 2 ounces of Pedialyte and that at that time, Jamyia was able to suck and swallow and exhibited no unusual breathing, no unusual eye movement, or any appearance of being abnormally limp. Shinai testified that she and Jamison had taken Jamyia to Penny because Jamyia had a fever, had saliva running from her mouth, and had diarrhea, and because her eyes were “fluttering.” Shinai stated that Jamyia was diagnosed with “hand, mouth, [and] foot virus.” Shinai said that after seeing Penny, the family returned to Jamison's mother's home, where they had been staying.

Jamison testified that Jamyia was often sick and was a colicky baby. Jamison stated that Jamyia had been taken to Penny because she had difficulty breathing, was crying, and had a cough and diaper rash. He also stated that her tongue and eyes fluttered. Jamison stated that after returning from Penny's office, Jamyia cried all night, as if in pain.

Shinai and Jamison said that on September 30, 2008, Shinai went to the store with Jamison's mother to pick up a prescription and left Jamyia in Jamison's care. Jamison claimed that he fed Jamyia two or three times. Jamison said that after his mother and Shinai returned from the store, he and Shinai attempted to wake Jamyia but that the baby was unresponsive. Shinai said that she called the 911 emergency dispatch service.

Dr. Jeffrey DeMare, a pediatric specialist and the former medical director of a team which evaluates and coordinates care for abused children, was the attending physician the night Jamyia was admitted to the hospital. DeMare testified that he commonly reviews cases to determine whether a child's injury is consistent with child abuse. DeMare noted that upon admission, Jamyia was actively seizing, hypoxic, and in need of mechanical ventilation. Magnetic resonance imaging of Jamyia's brain indicated subdural blood within the posterior occipital space and in the high parietal area, which injuries were recent in nature. Due to the severity of the hemorrhaging, DeMare determined that Jamyia's brain injuries were intentionally inflicted.

Dr. Sebastian J. Troia, a pediatric ophthalmologist, also examined Jamyia's injuries and testified that bilateral retinal hemorrhages established that Jamyia's injuries were the result of trauma. Troia said that Jamyia's retinal hemorrhaging was consistent with shaken baby syndrome, and he ruled out other possible causes of Jamyia's retinal hemorrhaging.

Tammy Burk, a protection and safety worker from the Department of Health and Human Services (DHHS), testified that she had conducted an assessment soon after Jamyia's admission to the hospital. Burk recounted that Jamyia was unable to eat orally because she could not suck or swallow, required a feeding tube, and was on a ventilator. Burk interviewed Shinai and Jamison, who claimed that Jamyia's injuries were the result of a misdiagnosis by Penny. Burk stated that Shinai and Jamison disputed the doctors' conclusions that Jamyia had been shaken, but were unable to provide any reasonable explanation for Jamyia's injuries.

The evidence adduced during the adjudicative hearings established that Jamyia has cognitive motor delays, language delays, visual impairment due to retinal hemorrhages to both eyes, seizures, and neurological problems. Jamyia has difficulty swallowing and requires a feeding tube to supplement her daily oral feeding. Jamyia's hands and feet are curled when they are not in splints, and though she is placed in a “stander” twice daily to strengthen her legs, she was unable to walk or talk at 17 months of age.

The State's expert witness, Evelyn Labode, cited the grave nature of Jamyia's injuries, coupled with a review of the medical and investigative agency reports, as evidence that returning Jamyia to her natural parents would result in further emotional or physical damage to the child. Labode said it was her opinion that it was in Jamyia's best interests for Shinai's and Jamison's parental rights to be terminated. Burk concurred, explaining that because there was no reasonable explanation for how Jamyia had suffered such extensive injuries, there were no assurances that Jamyia would not suffer additional injuries if returned to her natural parents. Burk stated that DHHS supported the termination of Shinai's and Jamison's parental rights.

An expert for Shinai and Jamison, Dr. Steven Gabaeff, testified that Jamyia's injuries were not the result of being shaken, but were due to infection, recurrent seizures, or choking and respiratory arrest. Gabaeff noted that Jamyia's medical records did not indicate that viral meningitis had been ruled out, which he claimed could account for an increase in cranial pressure which could...