In re Interest of Becka P., 296 Neb. 365

Background

In Dec 2015 the State filed juvenile petitions for three children (ages 4, 2, 1) alleging they were juveniles within § 43-247(3)(a); the juvenile court adjudicated the allegations true and placed custody with DHHS.
The adjudication orders required an ESU speech/language assessment for Becka and early childhood development assessments for the two younger children.
While the parents (Robert and Veronica) appealed the adjudications to the Court of Appeals, the ESU would not proceed because the parents signed consent forms with caveats and refused information releases; DHHS could not sign the forms for wards.
The county attorney filed affidavits and applications for orders to show cause to enforce the assessment orders; at the show cause hearing the court declined to find contempt but appointed an attorney as an "educational surrogate" for each child with "all educational rights" and no stated limitations.
The parents appealed the surrogate-appointment orders; the Nebraska Supreme Court considered (1) whether those orders were final and appealable and (2) whether the juvenile court had jurisdiction to issue them while adjudication appeals were pending, and whether appointment was an improper contempt sanction.

Issues

Issue	Plaintiff's Argument (Robert & Veronica)	Defendant's Argument (State)	Held
Were the orders appointing an educational surrogate final and appealable?	Orders were not final because they were interlocutory enforcement actions during an appeal.	Orders affected parents' substantial right and thus were final for appellate review.	Held: Final and appealable — appointment affected parents' substantial right to direct education.
Did the juvenile court lack jurisdiction to issue enforcement orders while adjudication appeals were pending?	Appeal divested the juvenile court of jurisdiction to take further action on the same matter.	§ 43-2,106 preserves county/juvenile court supervision and enforcement while appeals proceed; contempt/enforcement actions allowed.	Held: Court had jurisdiction to issue and rule on orders to show cause and to enforce prior orders while appeal pending.
Was appointment of an educational surrogate an improper civil contempt sanction without a purge option?	Appointment was an unconditional punitive sanction; parents were denied opportunity to purge by signing forms.	Court never found contempt; appointment was not imposed as a contempt sanction but as an enforcement measure to effectuate prior orders.	Held: No error — record shows court declined to find contempt; surrogate appointment was not a contempt sanction.
Did the surrogate appointment unlawfully remove parental educational rights permanently?	Appointment with "no limitations" effectively and permanently divested parents of educational decisionmaking.	Appointment was necessary to permit ordered assessments to proceed and falls within juvenile court supervisory powers.	Held: Appointment implicated a fundamental parental right and thus was a substantial, appealable order; however, appointment itself was within the court's enforcement authority under the circumstances.

Key Cases Cited

Troxel v. Granville, 530 U.S. 57 (recognizes parental liberty interest to direct children’s upbringing and education)
Meyer v. Nebraska, 262 U.S. 390 (parental rights to control child’s education are fundamental)
Pierce v. Society of Sisters, 268 U.S. 510 (parental authority over education is constitutionally protected)
In re Interest of Octavio B. et al., 290 Neb. 589 (framework for assessing whether juvenile orders affect a substantial right)
In re Interest of Cassandra B. & Moira B., 290 Neb. 619 (order interfering with homeschooling can affect a substantial right)
In re Interest of Walter W., 274 Neb. 859 (juvenile proceeding is a special proceeding for appealability analysis)
In re Interest of Jedidiah P., 267 Neb. 258 (juvenile court retains limited continuing jurisdiction during appeal; limits include no termination of parental rights)
In re Interest of Thomas M., 282 Neb. 316 (juvenile courts have statutory authority to punish contempt)