871 N.W.2d 49
Neb. Ct. App.2015Background
- Father D’Angelo’s parental rights to daughters Angeleah (b.2008) and Ava (b.2009) were terminated in Nov. 2013; this court reversed termination but affirmed adjudication and remanded for further proceedings.
- Juvenile court in Sept. 2014 ordered reunification as primary permanency plan; D’Angelo required to engage in services and therapeutic visitation; he appealed the dispositional order and appeal was pending.
- In Feb. 2015 DHHS moved to suspend D’Angelo’s therapeutic visitation; the juvenile court entered a temporary suspension order pending further hearing and evaluations.
- Evidence at the Feb. 18 hearing included allegations of D’Angelo’s drug use, law-enforcement incidents with the children’s mother, missed/canceled visits, and the therapist’s concerns that visits were inappropriate while D’Angelo was not engaged in services.
- Juvenile court suspended visitation pending parenting assessment and psychological evaluation; D’Angelo appealed that suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the juvenile court had jurisdiction to suspend visitation while a dispositional-order appeal was pending | State: juvenile court retains continuing jurisdiction under § 43-295 to protect juvenile’s best interests, including temporary visitation orders | D’Angelo: trial court was divested of jurisdiction by the pending appeal and suspension did not change custody or care | Court: juvenile court had continuing (but limited) jurisdiction under § 43-295 to temporarily suspend visitation during appeal |
| Whether the suspension order was final and appealable | D’Angelo: order affected his substantial right to parent his children and is appealable | State: the suspension was temporary and did not affect a substantial right; therefore not appealable | Court: suspension was temporary and not a final, appealable order; appeal dismissed for lack of jurisdiction |
Key Cases Cited
- In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015) (standards for appellate review and finality in juvenile cases)
- In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004) (separate juvenile court retains supervision during appeal)
- In re Interest of L.D. et al., 224 Neb. 249, 398 N.W.2d 91 (1986) (appellate duty to determine lower court jurisdiction)
- In re Interest of Danaisha W. et al., 287 Neb. 27, 840 N.W.2d 533 (2013) (temporary suspension of custody/visitation is not appealable)
- Bayliss v. Bayliss, 8 Neb. App. 269, 592 N.W.2d 165 (1999) (lower courts may enter visitation orders pending appeal in dissolution context)
- In re Interest of Joshua M. et al., 4 Neb. App. 659, 548 N.W.2d 348 (1996) (limits on juvenile court’s continuing jurisdiction; cannot terminate parental rights during appeal)
- In re Interest of Cassandra B. & Moira B., 290 Neb. 619, 861 N.W.2d 398 (2015) (distinguishing temporary orders from final appealable orders)