In re Interest of Becka P.
296 Neb. 365
Neb.2017Background
- Three children (ages 4, 2, and 1) were adjudicated neglected and placed in DHHS custody; the juvenile court ordered speech/language and early childhood development assessments by an Educational Services Unit (ESU).
- Parents Robert and Veronica signed ESU consent forms with added language disclaiming voluntariness and refused release authorizations; ESU declined to proceed and DHHS could not sign due to regulations.
- While the parents’ appeals of the adjudications were pending in the Court of Appeals, the county attorney filed affidavits and applications for orders to show cause to enforce the assessment orders.
- At a show-cause hearing the juvenile court declined to find contempt but appointed an attorney as an "educational surrogate" with "all educational rights" for each child, with no stated temporal or scope limitations.
- Parents appealed the surrogate appointment; the Nebraska Supreme Court considered whether the appointment was a final, appealable order, whether the juvenile court had jurisdiction while appeals were pending, and whether the surrogate appointment was an improper civil-contempt sanction.
Issues
| Issue | Plaintiffs' Argument (Robert & Veronica) | Defendant's Argument (State/DHHS) | Held |
|---|---|---|---|
| Whether appointment of educational surrogate was a final, appealable order | Appointment affected their fundamental parental right to direct education and thus was final | Appointment is enforcement action ancillary to adjudication and not appealable | Held appealable: appointment affected a substantial right (no time/ scope limit) |
| Whether juvenile court lacked jurisdiction to issue/rule on show-cause orders while adjudication appeals pending | Appeal divested juvenile court of jurisdiction; it could not act while appeals pending | § 43-2,106 preserves juvenile court authority to enforce orders and punish contempt even after appeal filed | Held juvenile court had jurisdiction to enforce prior orders and hear show-cause proceedings while appeals pending |
| Whether appointment was an improper civil-contempt sanction without purge opportunity | Appointment was punitive; parents should have been allowed to purge by signing consent forms | Court did not find contempt and thus did not impose civil-contempt sanctions; surrogate was appointed to effectuate court orders | Held appointment was not a contempt sanction (no contempt finding); claim lacked factual support |
| Whether appointment improperly removed parental education rights permanently | Appointment had no limitations and therefore permanently affected parental rights without necessary procedural safeguards | State: surrogate needed to allow assessments to proceed; enforcement of court orders was appropriate | Held appointment's unlimited scope meant it affected substantial parental rights, making it a final appealable order (but not overturned on these grounds) |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (recognizes parental fundamental liberty interest in directing children’s upbringing)
- Washington v. Glucksberg, 521 U.S. 702 (discusses fundamental liberty interests)
- Pierce v. Society of Sisters, 268 U.S. 510 (parents’ right to direct education is protected)
- Meyer v. Nebraska, 262 U.S. 390 (same; parental rights in education)
- In re Interest of Octavio B. et al., 290 Neb. 589 (substantial-right analysis in juvenile context)
- In re Interest of Cassandra B. & Moira B., 290 Neb. 619 (orders affecting education can affect substantial rights)
- In re Interest of Jedidiah P., 267 Neb. 258 (limits on juvenile court jurisdiction while appeal pending)
- In re Interest of Walter W., 274 Neb. 859 (juvenile proceeding deemed special proceeding for appealability analysis)
- In re Interest of Danaisha W. et al., 287 Neb. 27 (standards for de novo appellate review in juvenile cases)