State v. & Deanna R. (In re Southern)

22 Neb.App. 105

847 N.W.2d 749

In re Interest of Mischa S., a child under 18 years of age. State of Nebraska, appellee, and Deanna R. and Chris S., appellants.

No. A–13–265

Court of Appeals of Nebraska.

Filed June 24, 2014

Appeal from the County Court for Buffalo County: Graten D. Beavers, Judge.

Reversed and remanded for further proceedings.

Mitchel L. Greenwall, of Greenwall, Bruner & Frank, L.L.C., for appellants.

Mandi J. Amy, Deputy Buffalo County Attorney, for appellee.

Mindy L. Lester, of Ross, Schroeder & George, L.L.C., guardian ad litem.

Inbody, Chief Judge, and Moore and Pirtle, Judges.

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. 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.

3. 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.

4. Moot Question: Appeal and Error. Under the public interest exception to the mootness doctrine, 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.

5. 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.

6. Constitutional Law: Courts: Jurisdiction: Statutes. The Nebraska Court of Appeals cannot determine the constitutionality of a statute, yet when necessary to a decision in the case before it, the court does have jurisdiction to determine whether a constitutional question has been properly raised.

7. Juvenile Courts: Evidence: Proof.Neb.Rev.Stat. § 43–247(3)(a) (Reissue 2008) requires that the State prove the allegations set forth in the adjudication petition by a preponderance of the evidence in cases involving both non-Indian and Indian children.

8. Juvenile Courts: Evidence: Proof. In adjudication cases, the standard of proof for the active efforts element in Neb.Rev.Stat. § 43–1505(4) (Reissue 2008) is proof by a preponderance of the evidence.

9. Indian Child Welfare Act: Evidence: Appeal and Error. In a foster care placement determination involving an Indian child, the failure to make findings under Neb.Rev.Stat. § 43–1505(4) (Reissue 2008) is harmless error where a de novo review indicates that evidence supports these findings.

10. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

Moore, Judge.

INTRODUCTION

Deanna R. and Chris S. appeal from the order of the county court for Buffalo County, sitting as a juvenile court, which ordered the removal of their daughter Mischa S. from the family home. Because we find that the juvenile court erred in finding that serious emotional damage would result if Mischa is not removed from the home, we reverse, and remand for further proceedings.

PROCEDURAL BACKGROUND

Deanna and Chris are the parents of Mischa, born in 1998, and six additional younger children. Deanna is a member of the Oglala Sioux Tribe. She has not enrolled her children, but does know how to do this, and she has indicated that her children will qualify for affiliation. Deanna reports that the family has never lived on the reservation, that she was raised Catholic, and that they periodically visit the reservation.

On January 3, 2012, the State filed a petition in the juvenile court, alleging that Mischa was a child under Neb.Rev.Stat. § 43–247(3)(a) (Reissue 2008) by reason of her parents' having allowed her and her siblings to have excessive absences and tardies at school over the previous 4 years, jeopardizing Mischa's education and well-being.

The parents entered a no contest admission to the petition, and Mischa was adjudicated on May 8, 2012. She was allowed to remain at home with her parents under the supervision of the Nebraska Department of Health and Human Services (the Department). The permanency plan has been family preservation. On November 27, the case plan was modified to provide counseling for Mischa.

On January 24, 2013, the guardian ad litem (GAL) filed a motion to remove Mischa from her home due to continued school absences and a failure to participate in counseling as ordered by the court. A hearing was held on February 1, but because there was some question as to whether the tribe had been given proper notice, the hearing on the GAL's motion was continued until February 25, the date of a previously scheduled review hearing. In a journal entry following the February 1 hearing, the juvenile court found that Mischa had continued to incur absences from school and specifically ordered Deanna and Chris to take Mischa to school. The court noted that it had advised Deanna and Chris that they would be subject to actions for contempt if Mischa missed any additional school between February 1 and the hearing scheduled for February 25. The court also noted that Deanna and Chris had advised the court that they were considering an alternative education program for Mischa. The court found that they could continue to pursue alternatives, but that Mischa must attend school until an alternative education plan was created and such plan was determined to be in her best interests. On February 5, the GAL refiled her motion to remove Mischa from the home and notice was provided to all necessary parties.

On February 25, 2013, the juvenile court held a review hearing and heard the GAL's motion to remove Mischa from the family home. The court heard testimony from witnesses and received into evidence various exhibits, including a case plan and progress report dated February 15, a written report from the GAL, and documentation from the school concerning Mischa's absences and tardies.

Melissa Herrmann, the dean of students at the high school where Mischa is a freshman, testified concerning Mischa's school attendance. Mischa missed school from the third day of the school year through Halloween 2012. After she returned, her attendance improved, and Mischa attended school approximately 2 or 3 days a week for a couple of weeks. In that time, she was able to salvage some of her credits, earning a credit in her geography class and her “foods” class. Around Thanksgiving or early December, her attendance began to drop again. Mischa's attendance did improve somewhat after February 1, 2013. On the first day of school after the February 1 hearing, she missed over half of the day. Between February 1 and 25, Mischa was tardy eight times and absent three times.

As of February 25, 2013, Mischa had missed each of her classes between 60 and 80 times and was significantly behind in her credits for the school year. During this time, her family requested homework for her only twice and Mischa never once returned any homework to the attendance office. Herrmann testified that to stay on track for graduation, a student needed 70 to 80 credits at the end of the freshman year and should have 35 to 40 credits at the end of the first semester. As of the February 25 hearing, Mischa had only 11 credits and was failing all of her classes for the third-quarter term. Herrmann testified that unless Mischa was able to bring up her grades, she would end the third quarter with only 11 credits, when she should have about 60 by that point. Herrmann testified that unless Mischa participated in some extensive summer schooling and online courses to supplement normal coursework, it would be virtually impossible for her to graduate in 4 years at that point in time.

The school has engaged in efforts to get Mischa to attend, including attempting to rearrange her class schedule, offering alternative education, and even considering the possibility of attending school for half days rather than full days. Herrmann testified that “whenever the school has made an attempt to make a concession or to try to get her to come so that we can keep her on track, it always seems to be something else that comes up that prevents her.” Excuses given for Mischa's absences have included things such as car troubles, oversleeping, medical appointments, broken glasses, not having the right book or colored pencils for her art class, and not liking her algebra classroom due to a lack of windows. Herrmann testified that it had been extremely difficult to identify and meet Mischa's needs because the school was being provided with lots of different reasons for her lack of attendance. Herrmann had spoken with Mischa the morning of the February 25, 2013, hearing about the family's application to do home schooling. Mischa informed Herrmann that she thought Deanna had filed the paperwork to begin home schooling. Herrmann had also spoken with Mischa's guidance counselor, who confirmed Mischa's impression, but also expressed concern about whether Deanna had an acceptable curriculum to follow for home schooling.

Herrmann has an undergraduate degree in “7–12 education,” has taken college counseling courses, and has a master's degreein educational administration. Her duties at the school include everything from disciplining students and monitoring attendance to evaluating teachers. Herrmann testified regarding whether her education and training had given her the knowledge and experience to identify students struggling emotionally in school. Herrmann testified that a large portion of her day is spent identifying students who are at risk because of things such as attendance or...