IN RE INTEREST OF BRIANNA B., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, V. MAY LYNN L., APPELLANT. IN RE INTEREST OF MARIELLA B., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, V. MAY LYNN L., APPELLANT.
Nos. A-13-054, A-13-055
Nebraska Court of Appeals
January 14, 2014
21 Neb. App. 657
___ N.W.2d ___
- Juvenile Courts: Jurisdiction: Minors. Under the juvenile code, once a minor is adjudged to be within the definition of
Neb. Rev. Stat. § 43-247(3) (Reissue 2008), the juvenile court acquires exclusive jurisdiction over the juvenile and the parent who has custody of the juvenile. - ____: ____: ____.
Neb. Rev. Stat. § 43-285(3) (Supp. 2011) authorizes a juvenile court to establish guardianships for juveniles in the custody of the Nebraska Department of Health and Human Services without resorting to a proceeding under the probate code. - Juvenile Courts: Jurisdiction: Statutes. As a statutorily created tribunal, a juvenile court has only such authority as has been conferred on it by statute.
- Juvenile Courts: Minors. The foremost purpose and objective of the Nebraska Juvenile Code is to promote and protect the juvenile‘s best interests.
- ____: ____. The juvenile code must be construed to ensurе the rights of all juveniles to care and protection.
- Juvenile Courts: Child Custody. Juvenile courts are accorded broad discretion in their determination of the placement of children adjudicated abused or neglected and to serve the best interests of the children involved.
- Juvenile Courts: Jurisdiction: Parental Rights: Visitation. The continuing jurisdiction of the juvenile court allows the court to order supervised visitatiоn after terminating a mother‘s parental rights when the order is in the best interests of the children.
- Juvenile Courts: Child Custody: Jurisdiction. The juvenile court has the authority to devise unique foster care situations not set out in the checklist of statutory options when a unique arrangement will be in the best interests of the child.
- Juvenile Courts: Jurisdiction: Guardians and Conservators. The juvenile court retains jurisdiction over a juvenile in a guardianship.
- Guardians and Conservators: Parent and Child: Adoption. A guardianship does not achieve the same degree of permanency as parenthood or adoption.
- Juvenile Courts: Guardians and Conservators: Parental Rights. When a guardianship is established, a parent retains the right to petition the court for restoration of custody and full parental rights in the event of a change in the circumstances which justified the guardianshiр and supported the finding of the parent‘s unfitness.
- Juvenile Courts: Jurisdiction: Guardians and Conservators: Visitation. The juvenile court maintains the authority to create visitation arrangements within the context of a guardianship, so long as those arrangements are in the best interests of the juvenile.
Appeals from the County Court for Lincoln County: MICHAEL E. PICCOLO, Judge. Affirmed in part, and in part rеversed and remanded with directions.
Eric M. Stott, Special Assistant Attorney General, Tanya Roberts-Connick, Chief Deputy Lincoln County Attorney, and Jay B. Judds, of Nebraska Department of Health and Human Services, for appellee.
Amanda M. Speichert, Lincoln County Public Defender, guardian ad litem.
INBODY, Chief Judge, and RIEDMANN, Judge.
RIEDMANN, Judge.
I. INTRODUCTION
These cases involve the establishment of guardianships for Mariella B. and Brianna B., two juveniles who were placed in the custody of the Nebraska Department of Health and Human Services (DHHS) after coming within the meaning of
II. BACKGROUND
Mariella and Brianna were removed from May Lynn‘s care in February 2008. At the placement hearing in May, the court appointed a guardian ad litem for May Lynn based upon her diminished intellectual abilities. In July, May Lynn pled no contest to the charge that the girls were within the meaning of
Because many of the potential guardianship placements were disrupted, the girls lingered in foster care for several years while DHHS worked to establish guardianships. During this time, May Lynn continually objected to the case plans, asked for increased visitation, and requested physical custody. In June 2010, DHHS first identified a potential guardian and asked for the goal of the case plan to be guardianship with that individual. May Lynn objected, and the matter was set for an evidentiary hearing. By February 2011, the potential guardian had become “wishy-washy” due to the girls’ behaviors after visits with May Lynn. The parties attempted mediation, but the mediation failed. In May 2011, the potential guardian decidеd to move to another state and requested that DHHS remove the girls from the home.
After an extensive search, DHHS found a second potential guardian and sought to place the girls with her. In July 2011, the juvenile court heard evidence on DHHS’ motion for a change of placement. At that hearing, May Lynn opposed guardianship because she loved hеr daughters and wanted “to have say in their life.” At the end of the hearing, the juvenile court granted DHHS’ motion and also suggested that May Lynn‘s attorney inform her of how visits would work under a guardianship. Her attorney said he had tried to go over it with her several times to no avail. By November 2011, DHHS expressed concern for the girls because the second potential guardiаn‘s interest had become conditional. The second potential guardian would consider guardianship only if Brianna‘s behavior improved. Brianna‘s therapist opined that Brianna‘s behavior would improve only if her contact with May Lynn decreased. May Lynn opposed the guardianship again, noting that she had not been happy with guardianship once she understood its meaning. Visitation with May Lynn continued. The next month, the second potential guardian requested that the girls be removed. DHHS moved to place them with the only potential guardian remaining on its list, and the juvenile court approved the change.
In March 2012, placement with the third potential guardian was going well and DHHS moved to appoint the guаrdian and have the order completed. DHHS noted that it recommended May Lynn receive visitation in the event guardianship was approved. The juvenile court decided to table the motion to establish guardianship in order to make sure the correct procedures were being followed. The judge requested that DHHS file the appropriate paperwork and schedule a hearing on the motion.
The next week, DHHS filed a motion to establish guardianship through alternative disposition, pursuant to
In December 2012, the juvenile court issued orders approving guardianships. The court noted its exclusive jurisdiction over juveniles as described in
The juvenile court then found that continuing the girls in May Lynn‘s home was contrary to their best interests, that reasonable efforts had been made to reunify the girls with May Lynn, and that due diligence had been used to attempt to locate and notify the girls’ father. The court then sustained the State‘s motion for guardianship and wrote that DHHS should “cоmmence filing its Petition for the Appointment of a Guardian for Mariella . . . and Brianna . . . . Following the entry of an Order approving the Guardianship and the acceptance by the proposed guardians, [DHHS] and all court-appointed attorneys shall be dismissed . . . .” The court noted this was a “bitter-sweet resolution to a distressing slice of life‘s reality” and informed May Lynn that she could petition the court for restoration of custody upon changed circumstances. Finding it was not authorized to order visitation, the court strongly encouraged May Lynn and the guardian to negotiate a suitable schedule.
The letters of guardianship were issued in January 2013. May Lynn timely appealed.
III. ASSIGNMENTS OF ERROR
On appeal, May Lynn argues that the lеtters of guardianship were improperly issued and that the trial court erred in failing to award visitation.
IV. STANDARD OF REVIEW
Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court‘s findings. In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012). However, when the evidence is in conflict, an appellate сourt may consider and give weight to the fact that the trial court observed the witness and accepted one version of the facts over the other. Id.
When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent from the decisions made by the lower courts. In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999).
V. ANALYSIS
1. LETTERS OF GUARDIANSHIP WERE ISSUED PROPERLY
May Lynn‘s first assignment of error is that the letters of guardianship were issued contrary to the trial court‘s order and in violation of her constitutional right to procedural due process. We disagree.
(a) Juvenile Court Order
In its order approving guardianship in December 2012, the juvenile court sustained the State‘s motion to establish
In January 2013, the letters of guardianship were issued. Although the juvenile court‘s language requiring the State to file a petition creates confusion, in the context of the rest of the juvenile court‘s order and the proceedings prior to the order, it is evident that the juvenile court intended its order to establish guardianship. The juvenile court manifested its intent by carefully informing the parties on the record that it was holding a hearing оn the State‘s motion to establish guardianship, making the requisite findings, sustaining the motion, and then issuing the letters of guardianship. Given all the steps the juvenile court took to establish guardianship, its statement that the State should file a petition for guardianship is insufficient to prove the court did not intend to sustain guardianship and issue the letters.
(b) Probate Code Procedures
May Lynn next argues that the juvenile court еrred in issuing letters of guardianship because it did not follow the appropriate proceedings for establishing guardianship. Specifically, May Lynn argues that DHHS was required to follow the procedures outlined in
[1,2] Under the juvenile code, once a minor is adjudged to be within the definition of
May Lynn argues that even if the trial cоurt were authorized to establish guardianship under the juvenile code, she was still entitled to procedures that afforded her notice of guardianship. The record in this case establishes, however, that May Lynn had ample notice of the guardianship hearing. DHHS established guardianship as the permanency goal in the case plan years beforе the hearing, that change was approved by the court, and guardianship was discussed at almost every status meeting after October 2009. If these discussions did not provide May Lynn sufficient notice, she was certainly on notice after DHHS filed a motion to establish guardianship. A hearing was held on that motion prior to the court‘s approving guardianship. For thesе reasons, we find May Lynn‘s argument without merit.
May Lynn‘s second assignment of error is that the trial court erred in failing to establish a visitation plan for her after sustaining DHHS’ motion for guardianship. We determine that the juvenile court erred in finding it lacked authority to order visitation for May Lynn. Accordingly, we reverse in part, and remand to the juvenile court for a determination of Mаy Lynn‘s visitation rights.
[3] May Lynn argues that the juvenile court erred in finding it lacked statutory authority to order visitation and in failing to order the visitation. DHHS notes that no statute specifically authorizes a juvenile court to award visitation in an established guardianship. As a statutorily created tribunal, the juvenile court has only such authority as has been conferred on it by statute. In re Interest of Jaden H., 263 Neb. 129, 638 N.W.2d 867 (2002). At the sаme time, the purpose of the juvenile court is to protect and promote the welfare of juveniles. The court‘s “powers and duties are described more or less in detail in our statutes, and because of their humanitarian and beneficient purpose, they should be liberally construed to the end that their manifest purpose may be effectuated to the fullest extent compatible with their terms.” Stewart v. McCauley, 178 Neb. 412, 418, 133 N.W.2d 921, 925 (1965). Rather than creating a new court, the juvenile court law “merely gave a court with general common law and equity jurisdiction new and additional powers. These powers do not supersede its original jurisdiction but are supplemental to it.” Id.
[4-6] The foremost purpose and objective of the Nеbraska Juvenile Code is to promote and protect the juvenile‘s best interests. In re Interest of Veronica H., 272 Neb. 370, 721 N.W.2d 651 (2006). Accordingly, the juvenile code must be construed to ensure the rights of all juveniles to care and protection. See id. The Nebraska Juvenile Code must be liberally construed to serve the best interests of juveniles who come within the provisions of the act. In re Interest of Veronica H., supra. As such, juvenile courts are accorded broad discretion in their determination of the placement of children adjudicated abused or neglected and to serve the best interests of the children involved. Id.
[7,8] Although no statute explicitly authorizes awarding visitation within the context of a guardianship, we have previously determined that the continuing jurisdiction of the juvenilе court allowed the court to order supervised visitation after terminating a mother‘s parental rights when the order was in the best interests of the children. See In re Interest of Stacey D. & Shannon D., 12 Neb. App. 707, 684 N.W.2d 594 (2004). We have also found that the juvenile court has the authority to devise “unique” foster care situations not set out in the “‘checklist‘” of statutory options when a unique arrangement would be in the best interеsts of the child. In re Interest of Holley, 209 Neb. 437, 444, 445, 308 N.W.2d 341, 346 (1981).
[9-11] As was the case in In re Interest of Stacey D. & Shannon D., supra, the juvenile court retains jurisdiction over a juvenile in a guardianship. A guardianship does not achieve the same degree of permanency as parenthood or adoption. In re Interest of Antonio S. & Priscilla S., 270 Neb. 792, 708 N.W.2d 614 (2005). Legal custody is not parenthood or adoption and the person appointed guardian is subject to removal at any time. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re Interest of Amber G. et al., 250 Neb. 973, 554 N.W.2d 142 (1996). When a guardianshiр is established, a parent retains the right to petition the court for restoration of custody
[12] Given our holding in In re Interest of Stacey D. & Shannon D., supra, and the broader purposes of the juvenile code, we determine that the juvenile court maintains the authority to сreate visitation arrangements within the context of a guardianship, so long as those arrangements are in the best interests of the juvenile. In this case, the juvenile court was operating under the misconception that it was without authority to order visitation. Because we determine that the juvenile court does have the authority to order visitation between the mother and the affected juvenile, we reverse in part, and remand to the juvenile court for a determination of May Lynn‘s visitation rights.
VI. CONCLUSION
We determine that the juvenile court properly issued the letters of guardianship, and therefore, we affirm that portion of the juvenile court‘s decision. The juvenile court erred, however, in determining that it lacked authority to award visitation rights in a guardianship proceeding. Accordingly, we reverse in part, and remand to the juvenile court for a determination of May Lynn‘s visitation rights.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.
PIRTLE, Judge, participating on briefs.