In Interest of Roman

327 N.W.2d 36, 212 Neb. 919, 1982 Neb. LEXIS 1320
CourtNebraska Supreme Court
DecidedDecember 3, 1982
Docket81-879
StatusPublished
Cited by6 cases

This text of 327 N.W.2d 36 (In Interest of Roman) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Interest of Roman, 327 N.W.2d 36, 212 Neb. 919, 1982 Neb. LEXIS 1320 (Neb. 1982).

Opinions

Per Curiam.

This appeal arises from an action for the termination of the parental rights of Angelita Roman in her infant daughter, Rebecca. The county court of Hall County, Nebraska, found that parental rights should be terminated. Termination was based on a finding that the child had been adjudicated a neglected and dependent child through the fault of its parents and “reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination.” Neb. Rev. Stat. § 43-209(6) (Reissue 1978). Angelita appealed to the District Court, which affirmed the order of termination. Upon a motion for new trial the District Court granted a new trial and reheard the case, receiving into evidence the record of the previous proceedings in the county court and additional evidence. The District Court then reversed the order of the county court and remanded the cause to the county court for further “dispositional hearings.” The District Court [921]*921did not reverse the county court’s adjudication made on November 1, 1979, finding that Rebecca was a neglected and dependent child under the provisions of Neb. Rev. Stat. § 43-202 (Reissue 1978). The State has appealed from the order remanding the cause to the county court for dispositional hearings.

The State makes the following assignments of error: (1) The District Court erred in reversing the county court’s order terminating parental rights. (2) The District Court erred in receiving, over objection, testimony concerning an alleged change in circumstances which occurred after the court’s order terminating parental rights. Angelita, of course, takes the contrary position and, in addition, urges that the order of the District Court remanding for further hearings is not a final and appealable order within the provisions of Neb. Rev. Stat. § 25-1902 (Reissue 1979).

Our review of the matter is governed by the following principles. The action of the District Court is reviewable de novo in this court. If, however, the evidence is so conflicting as to be irreconcilable, we consider the opportunity of the trial court to have observed the witnesses and judged their credibility. Grant v. Doeschot, 189 Neb. 121, 201 N.W.2d 252 (1972); State v. Worrell, 198 Neb. 507, 253 N.W.2d 843 (1977). Under § 43-209 a person’s parental rights may be terminated only upon proof by clear and convincing evidence. In re Interest of Kimsey, 208 Neb. 193, 302 N.W.2d 707 (1981).

We first deal with Angelita’s contention that the order of the District Court remanding the cause , to the county court for further dispositional hearing is not a final and appealable order under § 25-1902. That statute provides: “An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in [922]*922an action after judgment, is a final order which may be vacated, modified or reversed, as provided in this chapter.” To support her contention Angelita cites Martin v. Zweygardt, 199 Neb. 770, 261 N.W.2d 379 (1978). The cited case was an action for damages for breach of warranty in the sale of a tractor. The county court held the evidence was insufficient to support the petition and dismissed the action. On appeal, the District Court determined otherwise and remanded for a new trial. In discussing the applicability of the statute, we said at 771, 261 N.W.2d at 380: “An order, which affects a substantial right in an action and in effect determines the action is a final order. § 25-1902, R.R.S. 1943. When the substantial rights of the parties in the action remain undetermined and the cause is retained for further action, the order is not final. Barry v. Wolf, 148 Neb. 27, 26 N.W.2d 303. Prior to the enactment of section 25-1315.03 in 1947, an order of the District Court granting a new trial in that court was not an appealable order. Egan v. Standard Oil Co., 132 Neb. 518, 272 N.W. 327.

“The order in question here vacated the judgment of the county court and remanded the cause for a new trial in the county court. The general rule is that a judgment of reversal with a remand for further proceedings is not final for the purposes of appeal. See, 4 Am. Jur. 2d, Appeal and Error, § 59, p. 580; 4 C.J.S., Appeal and Error, § 152(i), p. 506.” We there held that the order remanding to the county court for a new trial was not a final and appeal-able order under § 25-1902. Implicit in our holding was the conclusion that Neb. Rev. Stat. § 25-1315.03 (Reissue 1979), which, among other things, makes an order granting a new trial an appealable order, does not apply where the District Court remands to the county court for that new trial.

After considering the purpose of our previous holding in Martin v. Zweygardt, supra, and examining [923]*923various statutes (including those already mentioned) which are in pari materia, i.e., they all relate to appeals from the District Court or separate juvenile court to this court, we conclude that our holding in Martin v. Zweygardt, supra, is not applicable to the present situation.

First, we observe that there is no separate statute governing appeals from the county court sitting as a juvenile court to the District Court. Neb. Rev. Stat. § 43-202.03 (Reissue 1978) provides that such appeal shall be made in the manner “as in civil cases.” Neb. Rev. Stat. § 24-541 (Reissue 1979) provides in part: “In all cases not otherwise specifically provided for, either party may appeal from the final judgment of the county or municipal court to the district court of the county where the judgment was rendered. All such appeals shall be de novo on the record except . . . [matters described in Neb. Rev. Stat. § 30-1606 (Reissue 1979)]. In matters appealed de novo on the record, the district court may, in its discretion, receive additional evidence if the court determines that such evidence is reasonably necessary to determine the issues, make findings of fact and render judgment thereon. The district court may affirm, modify, or vacate the judgment, or may remand the case to the county or municipal court for a new trial.”

Appeals from the separate juvenile court are governed by Neb. Rev. Stat. §43-238 (Reissue 1978).

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In Re Interest of RG
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352 N.W.2d 566 (Nebraska Supreme Court, 1984)
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348 N.W.2d 861 (Nebraska Supreme Court, 1984)
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In Interest of Roman
327 N.W.2d 36 (Nebraska Supreme Court, 1982)

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Bluebook (online)
327 N.W.2d 36, 212 Neb. 919, 1982 Neb. LEXIS 1320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-roman-neb-1982.