In re Interest of Danaisha W.
287 Neb. 27
| Neb. | 2013Background
- Dennisca W. is the mother of six minors who were adjudicated and placed out of home after reports of domestic violence, neglect, and a positive meconium test for marijuana for one twin.
- The juvenile court initially suspended visitation (Nov 1, 2012) and ordered services and treatment; no appeal was taken from that order.
- The State filed a motion to terminate parental rights (Dec 6, 2012) and set an adjudication date for March 21, 2013.
- After a review hearing, the juvenile court (Feb 11, 2013) ended the suspension of visitation but imposed detailed, supervised, and separate-children visitation conditions and reserved that visits could be suspended for noncompliance.
- Dennisca filed a motion to compel DHHS to schedule visitation (Mar 5, 2013) and appealed the Feb 11 order (Mar 8, 2013) arguing the court improperly delegated authority to DHHS/therapists, erred requiring separate visits, and issued an unreasonable conditional order.
- The Nebraska Supreme Court raised and analyzed appellate jurisdiction, concluding the Feb 11 order was effectively temporary because the termination hearing was scheduled weeks later; thus it did not affect a substantial right and was not a final, appealable order.
Issues
| Issue | Dennisca's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the Feb 11, 2013 visitation order is appealable (final order affecting a substantial right) | The order is final and appealable because it delegated authority and imposed conditions that affect her parental rights | The order is not final/appealable because it was temporary or merely continued the earlier suspension and did not affect a substantial right | Not appealable: the order was effectively temporary (visitation conditioned only until the pending termination hearing) and did not affect a substantial right; appeal dismissed for lack of jurisdiction |
| Whether the juvenile court unlawfully delegated visitation authority to DHHS and therapists | The court impermissibly delegated judicial authority to DHHS/therapists to set and enforce visitation conditions | Delegation challenge was not reached because the order is not appealable | Not reached on merits due to lack of jurisdiction |
| Whether requiring separate visitation for each child was contrary to children’s best interests | Separate visits were unnecessary and contrary to children’s interests given Dennisca’s progress | The State maintained conditions were appropriate for safety and treatment needs | Not resolved on merits (jurisdictional dismissal) |
| Whether the conditional nature of the order (suspension for noncompliance) made it void/unreasonable | The conditional order unlawfully delegated discretion and was unreasonable | The State argued conditions were proper and enforcement mechanisms appropriate | Not resolved on merits (jurisdictional dismissal) |
Key Cases Cited
- In re Interest of Edward B., 285 Neb. 556 (jurisdictional analysis in juvenile appeals)
- In re Interest of Kendra M., 283 Neb. 1014 (juvenile appeal final-order principles)
- In re Adoption of Amea R., 282 Neb. 751 (final order and appealability in family matters)
- In re Interest of Jamyia M., 281 Neb. 964 (juvenile proceedings as special proceedings)
- In re Interest of Meridian H., 281 Neb. 465 (appealability standards)
- In re Interest of Taylor W., 276 Neb. 679 (juvenile final-order considerations)
- Selma Development v. Great Western Bank, 285 Neb. 37 (final order types reviewable on appeal)
- Steven S. v. Mary S., 277 Neb. 124 (temporary suspension of visitation not appealable)
- In re Guardianship of Sophia M., 271 Neb. 133 (orders denying visitation pending a near-term hearing are not final/appealable)
- In re Adoption of David C., 280 Neb. 719 (analysis of substantial right in juvenile orders)
- In re Guardianship of Rebecca B. et al., 260 Neb. 922 (extension vs. new final order analysis)