Nateesha B. v. Samuel C. (In re Interest of Kamiya C.)

302 Neb. 226

922 N.W.2d 739

IN RE INTEREST OF KAMILLE C. and Kamiya C., Children Under 18 Years of Age.

Nateesha B., Appellant,

v.Samuel C., Appellee.

No. S-18-651.

Supreme Court of Nebraska.

Filed February 8, 2019

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., Lincoln, for appellant.

Megan M. Zobel, of Anderson, Creager & Wittstruck, P.C., 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 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.

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 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 adjudicated children on August 6, 2018.

Nateesha appeals from the bridge order.

ASSIGNMENTS OF ERROR

Nateesha assigns, summarized, that the juvenile court erred by (1) denying her due process right to an impartial decision-maker by adducing evidence and thereby acting as an advocate for one of the parties, (2) receiving into evidence a report of the Foster Care Review Board over her hearsay objection, (3) finding that the bridge order was necessary, and (4) finding that the best interests of the children would be served by placing legal and physical custody with Samuel.

STANDARD OF REVIEW

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.³

ANALYSIS

This appeal involves a "bridge order" entered pursuant to § 43-246.02, which was enacted through L.B. 180 in 2017. Specifically, Nateesha challenges the domestic relations custody determination made in the bridge order in this appeal.

Before L.B. 180, there was no provision in the law for bridge orders. This is the first time we have addressed a bridge order under the newly enacted statute. A bridge order is part of the juvenile code governing the juvenile court, but was designed as a "bridge" between juvenile courts and district courts.⁴ The unique nature of a bridge order raises the question of whether it is final under § 25-1902. 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.⁵ For an appellate court to acquire jurisdiction of an appeal, there must be a judgment or final order entered by the court from which the appeal is taken.⁶

To understand whether a bridge order is final, we must understand what, precisely, it does. We must, therefore, examine the respective roles of juvenile and district courts and the newly enacted statutory scheme.

Pursuant to Neb. Const. art. V, § 27, the juvenile court is a statutorily created tribunal established by the Legislature "with such ... powers as the Legislature may provide." Each county, depending on its population, has either a separate juvenile court or a county court with authority to sit as a juvenile court.⁷ 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.⁸

Section 43-247 gives the juvenile court jurisdiction as to any juvenile defined in subdivision (3) of that section. The dual purpose of proceedings brought under § 43-247(3)(a), which alleges that the juvenile is homeless, destitute, or without proper support through no fault of the parent, guardian, or custodian, is to protect the welfare of the child and to safeguard the parent’s right to properly raise his or her own child.⁹ During proceedings under § 43-247(3)(a), 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...