In Re Devin W.

707 N.W.2d 758, 270 Neb. 640
CourtNebraska Supreme Court
DecidedDecember 2, 2005
DocketS-04-250
StatusPublished
Cited by6 cases

This text of 707 N.W.2d 758 (In Re Devin W.) 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 Re Devin W., 707 N.W.2d 758, 270 Neb. 640 (Neb. 2005).

Opinion

707 N.W.2d 758 (2005)
270 Neb. 640

In re Interest of DEVIN W. et al., children under 18 years of age.
State of Nebraska, appellee and cross-appellee,
v.
Lerry M., appellant, and
Jillian M., appellee and cross-appellant.

No. S-04-250.

Supreme Court of Nebraska.

December 2, 2005.

*759 Dennis R. Keefe, Lancaster County Public Defender, and Reggie L. Ryder, for appellant.

Gary E. Lacey, Lancaster County Attorney, Jodi L. Nelson, Kara E. Mickle, Daniel Packard, and Julie Agena, Senior Certified Law Student, for appellee State of Nebraska.

Lisa F. Lozano, Lincoln, for appellee Jillian M.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

*760 MILLER-LERMAN, J.

NATURE OF CASE

Jesse M. is the minor son of appellant, Lerry M., and appellee and cross-appellant, Jillian M. The State filed a supplemental petition in a pending juvenile court proceeding alleging that Jesse lacked proper parental care by reason of the fault or habits of Jillian. The separate juvenile court of Lancaster County determined the allegations of the petition to be true and found Jesse to be a child as defined under Neb.Rev.Stat. § 43-247(3)(a) (Cum.Supp. 2002). At the time the juvenile court adjudicated Jesse, he resided with Lerry and Jillian. During a subsequent review hearing, the juvenile court found that it would be in the best interests of Jesse to be removed from the physical custody of his parents and placed in out-of-home foster care. Lerry filed an appeal from the juvenile court's order removing Jesse, and Jillian filed a cross-appeal. In a published opinion, the Nebraska Court of Appeals concluded that the juvenile court was without subject matter jurisdiction to adjudicate Jesse or to conduct any subsequent proceedings regarding Jesse because there were no allegations in the petition that Jesse lacked proper parental care by reason of the conduct of Lerry, a custodial parent. In re Interest of Devin W. et al., 13 Neb.App. 392, 693 N.W.2d 901 (2005). The Court of Appeals reversed the juvenile court's orders and remanded the cause with directions to dismiss the proceeding. Id. The State petitioned for further review. We granted the petition for further review. Because the juvenile court acquired subject matter jurisdiction upon adjudicating Jesse as a child under § 43-427(3)(a), the conclusion of the Court of Appeals to the effect that the juvenile court lacked subject matter jurisdiction as to matters involving the father, Lerry, was in error. We reverse the decision of the Court of Appeals and remand the cause to the Court of Appeals for further proceedings.

STATEMENT OF FACTS

Lerry and Jillian are the natural parents of Jesse, born May 25, 2001. The present juvenile action arose initially out of proceedings involving Jesse's older full brother, Brien M., born June 4, 1998, and Jesse's older half brother, Devin W., born November 4, 1996. James W., Devin's natural father, did not reside in Nebraska, and his parental rights with respect to Devin were eventually terminated.

The facts relevant to the instant appeal were described in the Court of Appeals' opinion as follows:

The State filed a juvenile petition on March 9, 2001, in the interest of Devin and Brien. The State alleged that Devin and Brien lacked proper parental care due to the fault or habits of Jillian in that on or after February 18, 2001, Jillian subjected Devin to inappropriate physical discipline resulting in physical injury to Devin. The State further alleged that Jillian's actions placed both Devin and Brien at risk of harm. The State made no allegations concerning either Lerry or James.
An adjudication hearing was held on March 26, 2001, and continued to April 12. Jillian admitted the allegations in the petition, which admission was accepted by the court. The court found Devin and Brien to be children as defined by Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1998).
On May 25, 2001, the day Jesse was born to Lerry and Jillian, the State filed a supplemental petition, alleging that Jesse lacked proper parental care by reason of the fault or habits of Jillian in that she had previously subjected Devin to inappropriate physical discipline, *761 which act resulted in the filing of a juvenile court petition and Devin's adjudication, and that she had not corrected the conditions that served as the basis for that prior adjudication. The State alleged that this situation placed Jesse at risk of harm. The State made no allegations against Lerry in the supplemental petition.
On June 1, 2001, a dispositional hearing was held on the original petition and a rehabilitative plan was put into effect, which plan included the removal of Devin and Brien from the home of Lerry and Jillian. Devin and Brien were placed in foster care, and the court ordered reasonable visitation with Lerry and Jillian as arranged by the Department of Health and Human Services (the Department).
An adjudication hearing on the supplemental petition and a review hearing on the original petition were held on July 23, 2001. The juvenile court found that the allegations of the supplemental petition were true by a preponderance of the evidence and found Jesse to be a child as defined by § 43-247(3)(a) (Cum. Supp.2002). The court scheduled the supplemental petition for disposition and ordered the Department to prepare a case plan.
On October 22, 2001, a dispositional hearing on the supplemental petition and a review hearing on the original petition were held. The juvenile court found that the health and safety of Devin and Brien required their continued removal from the family home and that it was in their best interests to remain in an out-of-home placement. . . . As to Jesse, the court found it in Jesse's best interests that he remain in the temporary legal custody of the Department and in the physical care of Jillian. . . . Review hearings were held on January 8, February 7, and May 7, 2002. Following each hearing, the juvenile court found it in the best interests of Jesse that he remain in the temporary legal custody of the Department but in the physical care of Jillian. The court continued Devin and Brien's out-of-home placement, with supervised visitation by Jillian, and again provided for separate, unsupervised visitation by Lerry if Lerry so requested. . . .
The State filed a second supplemental petition on September 5, 2002. In count I of the petition, the State alleged that Devin and Brien lacked proper parental care due to the fault or habits of Lerry in that between February 8 and August 29, 2002, Lerry failed to have regular or consistent visitation or contact with Devin and Brien or failed to provide emotional care or support to them, placing them at risk of emotional harm.

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Bluebook (online)
707 N.W.2d 758, 270 Neb. 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-devin-w-neb-2005.