State v. Neb. Dep't of Health & Human Servs. (In re Interest of Giavonni P.)

304 Neb. 580

935 N.W.2d 631

IN RE Interest of GIAVONNI P., a child under 18 years of age.

State of Nebraska, appellee,

v.Nebraska Department of Health and Human Services, appellant.

Nos. S-18-1130

S-18-1135.

Supreme Court of Nebraska.

Filed November 22, 2019

Neleigh N. Boyer and Marcie Bergquist, Special Assistant Attorneys General, of Nebraska Department of Health and Human Services, for appellant.

Jeffrey A. Wagner and Kyle J. Flentje, of Wagner, Meehan & Watson, L.L.P., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

Following orders of the Douglas County Separate Juvenile Court, Giavonni P. was placed at the Lincoln Regional Center (LRC). The Nebraska Department of Health and Human Services (Department) appeals. We affirm.

II. BACKGROUND

Giavonni was adjudicated under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) in April 2010 and placed with the Department. He has been in a variety of placements since that time. In October 2017, Giavonni was adjudicated under § 43-247(1) and placed at Capstone, a psychiatric residential treatment facility (PRTF) in Detroit, Michigan. In late 2017, Giavonni was also placed on probation with the office of juvenile probation following adjudication and disposition on a charge of theft by unlawful taking.

On October 9, 2018, Giavonni’s guardian ad litem filed a motion alleging that placement in the Capstone program was no longer in Giavonni’s best interests. The guardian ad litem requested that Giavonni be returned to Nebraska and placed at the LRC.

A hearing was held on that motion on October 22, 2018. The juvenile court ordered Giavonni returned to Nebraska and placed at the Douglas County Youth Center (DCYC) for secure detention. The juvenile court scheduled further placement review for November 9.

At the November 9, 2018, hearing, Giavonni was represented individually and also by a guardian ad litem. Giavonni’s father appeared with counsel, and Douglas County and the Department appeared with separate representation. On appeal, only the Department and the guardian ad litem filed briefs. The State (represented by Douglas County) waived oral argument. No other party has entered an appearance.

At the placement review hearing, Giavonni’s family permanency specialist reviewed Giavonni’s recent history. That history included flight from Capstone, the PRTF in Detroit; violent behavior toward other residents and staff at Capstone; and property destruction. In addition, while in Detroit, Giavonni refused to engage in therapy or take his medications. Another witness testified that Capstone was more like jail than a treatment center and reinforced Giavonni’s refusal to leave his room or to interact with others in any setting. The witness also reiterated that Giavonni was not taking his medications while at Capstone.

Upon his return to Nebraska and placement at the DCYC, Giavonni was again involved with acts of aggression. He had not met with a therapist, but was apparently taking his medication.

Other evidence presented showed that there were concerns with placing Giavonni at any facility which was not secure and which would require him to have a roommate, due to the fact that he was a flight risk and was aggressive. A psychiatrist testified that Giavonni needed treatment in a locked facility such as an adolescent PRTF, medical stabilization, and placement in a community setting. There was evidence that there were only approximately 20 facilities in the United States that met Giavonni’s treatment criteria. Of the facilities that responded to an inquiry, none was able to admit Giavonni, either because of his violent history or because of space constraints.

Following the hearing, the juvenile court entered an order in each case stating that if Giavonni was not placed in a PRTF by November 26, 2018, the Douglas County sheriff should deliver him to the LRC, where he was to remain until a PRTF placement could be found. On November 27, the court was advised at a placement check hearing that Giavonni had been placed at the LRC.

The Department filed a notice of appeal in each case on December 3, 2018, indicating that it appealed from the juvenile court’s November 9 order (the notice of appeal is dated November 28, 2018). On May 6, 2019, Giavonni was moved from the LRC into a new placement. Prior to oral arguments, the guardian ad litem filed a suggestion of mootness, which we denied.

III. ASSIGNMENTS OF ERROR

The Department assigns that the juvenile court erred in ordering that Giavonni (1)(a) be placed at the LRC (b) on a specific date and (2) remain at the LRC until further order of the court or until a placement was unanimously agreed upon by the parties.

IV. STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings.¹ The meaning of a statute is a question of law, which an appellate court resolves independently of the trial court.²

V. ANALYSIS

The Department appeals from the orders of the juvenile court placing Giavonni at the LRC. While its argument varies slightly based on the underlying adjudication (law violation versus neglect), the crux of the Department’s assertion is that the placement orders usurped the LRC’s statutory authority to administer and manage its patient admission and discharge process.

1. FINAL ORDER

In each case, the guardian ad litem argues that this court lacks a final order, both because the juvenile court’s order was conditional and because that order did not affect a substantial right. We conclude that the order in each case is final.

(a) Conditional Order

The guardian ad litem first argues that the juvenile court’s order in each case was not final because it was conditional: at the time the order was entered, no one knew "when or even whether Giavonni would be accepted by a [PRTF] and if no such facility arose, there is no direction given by the court, creating speculation and conjecture, making such order a conditional judgment."³

Orders purporting to be final judgments, but that are dependent upon the occurrence of uncertain future events, do not necessarily operate as "judgments" and may be wholly ineffective and void as such.⁴ We have explained that a conditional judgment may be wholly void because it does not "perform in praesenti" and leaves to speculation and conjecture what its final effect may be.⁵ We have also explained that while conditional orders will not automatically become final judgments upon the occurrence of the specified conditions, they can operate in conjunction with a further consideration of the court as to whether the conditions have been met, at which time a final judgment may be made.⁶

The juvenile court’s order in each case stated that the Department and Giavonni’s probation officer should seek "appropriate secure [PRTF] placement" and that "if ... Giavonni ... is not accepted for placement by November 26, 2018[,] ... then [he] shall be ... delivered by the Douglas County Sheriff to the [LRC] in Lincoln, Nebraska." The court went on to order that Giavonni "remain in the [LRC] ... until ... accepted for placement at an accredited, secure [PRTF], contingent on written approval" of the guardian ad litem, the Department, and Giavonni’s probation officer, attorney, and treatment team, or, "lacking such unanimous approval, until further Order of the Court." And on November 27, 2018, the day after Giavonni was moved to the LRC, a placement check hearing was held, at which time an order acknowledging Giavonni’s placement and the setting of the next hearing date were entered in each case.

In each case, when considering the November 27, 2018, order in light of the November 9 order, it is clear that the juvenile court’s order is not conditional. There is no merit to this argument.

(b) Order Affecting Substantial Right

The guardian ad litem also argues that the juvenile court’s order in each case was not final because it did not affect a substantial right of the Department.

Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the three types of final orders that may be reviewed on appeal are (1) an order affecting a substantial right in an action that, in effect, 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 on summary application in an action after a judgment is rendered.

Juvenile court proceedings are special proceedings.⁷ Thus, to have a final order a juvenile court’s order must affect a substantial right. We conclude herein that the juvenile court’s order in each case does affect a substantial right in that it affects the Department’s ability, through its role of directing behavioral services, to administer admissions and care at the LRC.⁸ As such, the order in each case is final.

2. MOOTNESS

Since the Department filed its appeals, Giavonni has been moved out of the LRC and into an out-of-state PRTF. As such, Giavonni’s guardian ad litem filed in each appeal a motion to dismiss on the ground of mootness. The Department agrees that Giavonni’s appeals may be moot but, in its response, directed us to a list of other juveniles who have been ordered to the LRC. The Department asked that we utilize the public interest exception to the mootness doctrine to address the question presented by these appeals.

Mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction.⁹ An actual case or controversy is necessary for the exercise of judicial power.¹⁰ In the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory.¹¹ Therefore, as a general rule, a moot case is subject to summary dismissal.¹² It is well established that when a party or parties are aware that appellate issues have become moot during the pendency of the appeal and such...