In re Interest of Thomas M.

282 Neb. 316

803 N.W.2d 46

In re Interest of THOMAS M., a child under 18 years of age.State of Nebraska, appellee,

v.Thomas M., appellee,andNebraska Department of Health and Human Services, appellant.

No. S–18–819.

Supreme Court of Nebraska.

Sept. 16, 2011.

Syllabus by the Court

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. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.

3. Moot Question. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the litigation's outcome.

4. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction.

5. Moot Question: Appeal and Error. Under the public interest exception, an appellate court may review an otherwise moot case if it involves a matter affecting the public interest or when other rights or liabilities may be affected by its determination.

6. Moot Question: Appeal and Error. When determining whether a case involves a matter of public interest, an appellate court considers (1) the public or private nature of the question presented, (2) the desirability of an authoritative adjudication for future guidance of public officials, and (3) the likelihood of future recurrence of the same or a similar problem.

7. Courts: Contempt. Generally, a court may punish for contempt as a part of the court's inherent contempt powers.

8. Juvenile Courts: Contempt. The juvenile court, as a court of record, has the statutory authority pursuant to Neb.Rev.Stat. § 25–2121 (Reissue 2008) to punish contemptuous conduct by fine or imprisonment.

9. Juvenile Courts: Contempt. To find a party in contempt in juvenile court, there must be a finding of willful violation of a juvenile court's order.

10. Final Orders: Notice. Whenever a court must determine an uncertain fact before entering an order, the party affected by the order is entitled to reasonable notice and an opportunity to be heard.

11. Jurisdiction: Appeal and Error. It is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

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

13. Final Orders: Appeal and Error. To be final and appealable, an order in a special proceeding must affect a substantial right.

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

Eric M. Stott, Special Assistant Attorney General, for appellant.Krista Shaul, Deputy Cheyenne County Attorney, for appellee State of Nebraska.Sarah Helvey, for amicus curiae Nebraska Appleseed Center for Law in the Public Interest.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.MILLER–LERMAN, J.

I. NATURE OF CASE

The Nebraska Department of Health and Human Services (DHHS) appeals the July 27, 2010, order of the county court for Cheyenne County, sitting as a juvenile court, which found DHHS in contempt of an order requiring it to identify appropriate placement, including counseling, for Thomas M., a juvenile under the court's jurisdiction. DHHS also appeals the August 9, 2010, order in which the court stated that DHHS would be in contempt of court if it did not provide satisfactory evidence that certain future billings related to Thomas' placement were timely paid. Although the issues surrounding the July 27 order are moot, we consider them under the public interest exception. Because the August 9 order is not a final, appealable order, we do not consider it. In view of the foregoing, we dismiss this appeal.

II. STATEMENT OF FACTS

In April 2010, the county court for Cheyenne County, sitting as a juvenile court, adjudicated Thomas to be a juvenile within the meaning of Neb.Rev.Stat. § 43–247(1), (2), and (3)(b) (Reissue 2008) on the bases that he had committed acts which would constitute a felony and misdemeanors and that he was uncontrollable by his parents. The court ordered Thomas to be placed in the custody of DHHS and committed to detention. In May 2010, the court further adjudicated Thomas to be a juvenile who was mentally ill and dangerous under § 43–247(3)(c). Because of the basis of these adjudications, Thomas was considered under the Nebraska Juvenile Code as both a law violator and a status offender and therefore subject to statutory provisions relevant to an adjudication under § 43–247(1), (2) and (3). See In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011) (distinguishing between “status offenders” and “law violators” under Nebraska Juvenile Code). The court ordered placement at a youth detention center in Gering, Nebraska.

After a disposition hearing on July 8, 2010, the court filed an order in which it required, inter alia, that Thomas participate in counseling no less than three times per week and that DHHS arrange such counseling. On July 20, the court held another disposition hearing and directed DHHS to provide the court with a list of appropriate placement locations for Thomas after DHHS had consulted with a doctor regarding recommended options. In an order filed July 21, the court stated that if no appropriate placement was immediately available and presented to the court at the next placement hearing on July 26, then DHHS “shall be in contempt of court and pay $400.00 per day into the Court until Thomas is ... placed appropriately.”

In an order filed July 27, 2010, following the July 26 placement hearing, the court found that Thomas did not have appropriate placement, because DHHS had failed to comply with the court's July 8 order requiring DHHS to place Thomas at a facility which would provide Thomas with counseling no less than three times per week. The court stated that “[p]ursuant to this court's contempt order of July 20, 2010, [D]HHS shall pay into this Court $400.00 per day until it provides written verification that THOMAS ... is receiving counseling as ordered.” The court also approved Thomas' proposed placement at a group home when a bed would become available in 2 to 3 weeks.

Following another placement hearing, the court entered an order on August 9, 2010, in which it ordered that Thomas be placed at Colorado Boys Ranch in La Junta, Colorado. The court ordered that a representative of DHHS transport Thomas to the ranch, tour the ranch, meet the staff, and report findings to the court. The court also stated that all billings from the ranch should be paid within 20 days of receipt and that “[i]f not paid in full as ordered herein, [D]HHS shall be in contempt of court and pay $500.00 per day into the court until the court is provided with satisfactory evidence that the bill has been paid in full.” The court further ordered that copies of all billings from the ranch be provided to the court, “with the court setting a contempt hearing on payment of the same about twenty days thereafter.”

On August 16, 2010, DHHS filed a notice of appeal in which it stated its intent to appeal the juvenile court's orders of July 27 and August 9.

III. ASSIGNMENTS OF ERROR

Regarding the July 27, 2010, order, DHHS claims that the juvenile court erred when it found DHHS in contempt, because (1) sovereign immunity prevented the court from entering a contempt order against DHHS, which is an agency of the State of Nebraska, and (2) the court failed to give DHHS proper notice and an opportunity to be heard on the issue of contempt and the element of willfulness. Regarding the August 9 order, DHHS claims that the juvenile court erred when it ordered hearings to determine proof of payment of all billings associated with Thomas' placement at the Colorado Boys Ranch, because such order interfered with DHHS' right to contract without interference.

IV. STANDARDS OF REVIEW

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 Jorge O., 280 Neb. 411, 786 N.W.2d 343 (2010).

To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. Id.

V. ANALYSIS

1. The July 27, 2010, Order

(a) Although the July 27, 2010, Contempt Order Is Moot, It Will Be Considered Under the Public Interest Exception

The juvenile court found DHHS in contempt at the hearing of July 26, 2010, and the order was later reduced to writing and filed on July 27. The contempt order was based on DHHS' failure to adhere to the court's placement order, which placement was to have included counseling. Although on appeal the parties did not raise the issue of mootness with respect to this contempt order, the record shows that DHHS complied with the court's order to arrange counseling for Thomas three times a week later in the day on July 26. The record from the hearing on August 9 shows that the juvenile court acknowledged that DHHS had satisfied its order. Thus, DHHS purged itself of contempt almost immediately and DHHS' interest in seeking relief from the order of contempt was extinguished. The contempt issue became moot.

We have explained mootness and our authority to review a moot issue as follows:

A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the litigation's outcome. Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction.

But under the public...