In Re Interest of DMB

481 N.W.2d 905, 240 Neb. 349, 1992 Neb. LEXIS 104
CourtNebraska Supreme Court
DecidedMarch 27, 1992
DocketS-91-329
StatusPublished
Cited by91 cases

This text of 481 N.W.2d 905 (In Re Interest of DMB) 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 Interest of DMB, 481 N.W.2d 905, 240 Neb. 349, 1992 Neb. LEXIS 104 (Neb. 1992).

Opinions

Per Curiam.

T.B. appeals an order of the separate juvenile court of Douglas County terminating her parental rights to her 3-year-old natural daughter, D.M.B.

Because plain error permeates both the adjudication and the disposition proceedings in this case, we have elected to conduct a de novo review of the entire record under both our review and supervisory powers.

We find the juvenile court committed plain error (1) when it found, after an adjudication hearing, that it had jurisdiction of D.M.B., and (2) when it denied T.B. procedural due process in the adjudication and disposition proceedings. Because of plain error, the orders of the juvenile court entered following the adjudication and the disposition hearings must be vacated, and the case must be dismissed.

None of the plain errors we discuss was assigned as error by T.B. Although an appellate court does not consider assignments of error not listed and discussed in the briefs, it always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. In re Interest of G.G. et al., 237 Neb. 306, 465 N.W.2d 752 (1991). See, also, Phelps v. Phelps, 239 Neb. 618, 477 [352]*352N.W.2d 552 (1991); Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990). Here, we find that a failure to correct the plain errors in this case would result in damage to the integrity, reputation, and fairness of the juvenile justice system.

In view of our findings, T.B.’s first, third, and fourth assignments of error are moot. We will, however, in our supervisory capacity, consider T.B.’s second assignment of error: that the juvenile court erred in ordering a rehabilitation plan which was not reasonable and material to the rehabilitative objective of correcting the conditions on which the earlier adjudication had been obtained.

On appeal of any final order of a juvenile court, an appellate court tries factual questions de novo on the record and is required to reach a conclusion independent of the findings of the trial court, but, when the evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts rather than another. See, In re Interest of A.C., 239 Neb. 734, 478 N.W.2d 1 (1991); In re Interest of A.H., 237 Neb. 797, 467 N.W.2d 682 (1991).

We have held that an adjudication order in a juvenile court is an appealable order, and an appeal, if not made within 30 days after the order’s entry, will be dismissed. See, In re Interest of C. W. et al., 238 Neb. 215, 469 N.W.2d 535 (1991); In re Interest of P.L., S.L., and A.L., 236 Neb. 581, 462 N.W.2d 432 (1990). That being true, this court ordinarily does not review the validity of an adjudication order in the absence of a direct appeal. However, this rule does not apply when the facts pleaded and the facts developed at the adjudication hearing are not sufficient for a juvenile court to acquire jurisdiction of a juvenile. If the pleadings and evidence at the adjudication hearing do not justify a juvenile court’s acquiring jurisdiction of a child, then the juvenile court has no jurisdiction, i.e., no power, to order a parent to comply with a rehabilitation plan, nor does the juvenile court have any power over the parent or child at the disposition hearing unless jurisdiction is alleged and proven by new facts at a new adjudication-disposition hearing.

In her assignments of error, T.B. has not challenged the juvenile court’s acquisition of jurisdiction over D.M.B. The [353]*353theory behind our ruling in Nebraska State Bar Found. v. Lancaster Cty. Bd. of Equal., 237 Neb. 1, 465 N.W.2d 111 (1991), is helpful in determining the jurisdictional issue we consider in this case. There, we held, in substance, that whether a question is raised by the parties concerning the jurisdiction of a lower court or tribunal, it is not only within the power but the duty of an appellate court to determine whether such appellate court has jurisdiction over the matter before it. In Nebraska State Bar Found., we also held, in substance, that when lack of jurisdiction in the original tribunal is apparent on the face of the record, yet the parties fail to raise that issue, it is the duty of a reviewing court to raise and determine the issue of jurisdiction sua sponte. When a trial court lacks the power, that is, jurisdiction, to adjudicate the merits of a claim, an appellate court also lacks power to adjudicate the merits of the claim. Id.

In D.M.B.’s case, the juvenile court’s lack of jurisdiction over D.M.B. is apparent on the face of the record. Therefore, this court raises the issue sua sponte. The allegations in the original petition in this case, if proven, without question would have conferred jurisdiction upon the separate juvenile court of Douglas County over D.M.B. The original petition in substance alleged:

COUNTI
[D.M.B.] was born out of wedlock on March 31, 1987; and said child is now living or to be found in Douglas County, Nebraska.
COUNT II
[D.M.B.] comes within the meaning of Nebraska Revised Statutes, 1943, Section 43-247 (3a), being under the age of eighteen years, and lacking proper parental care by reason of the faults or habits of [T.B.], natural mother of said child, in that:
Au On or about November 8, 1988, said child was fondled about the genital area by [T.B.]
B. On or about November 8,1988, the three siblings of said child were subjected to fondling of the genitals, oral sex and digital penetration by [T.B.]
C. Said child and her siblings have been subjected to sexual contact by [T.B.] on several other occasions in the [354]*354past six months.
D. [T.B.] has been involved with the Juvenile Court for two years in an effort to resolve poor parenting skills in reference to said child’s three siblings; [T.B.] has failed to comply with the Court’s recommendations ....

(Emphasis supplied.)

The prayer of the petition asked the juvenile court to make such order or orders concerning the care, custody, control, and support of the said child as deemed appropriate in the premises and, further, that the court terminate the parental rights of T.B., the natural mother of said child, in D.M.B.

The transcript reflects that on Friday, November 11, 1988, T.B. was arrested for sexually assaulting D.M.B.’s sisters and that D.M.B., incorrectly identified as “Diana B.,” was placed in foster care.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Yeutter v. Barber
Nebraska Court of Appeals, 2021
Schmeidler v. Schmeidler
25 Neb. Ct. App. 802 (Nebraska Court of Appeals, 2018)
In re Interest of Carmelo G.
296 Neb. 805 (Nebraska Supreme Court, 2017)
In re Interest of Darrion T.
Nebraska Court of Appeals, 2017
Barth v. Barth
Nebraska Court of Appeals, 2014
Mark J. v. Darla B.
Nebraska Court of Appeals, 2014
In Re Carrdale H. II
781 N.W.2d 622 (Nebraska Court of Appeals, 2010)
In Re Ethan M.
774 N.W.2d 766 (Nebraska Court of Appeals, 2009)
In Re Interest of Anaya
758 N.W.2d 10 (Nebraska Supreme Court, 2008)
State v. Michael U.
728 N.W.2d 116 (Nebraska Supreme Court, 2007)
State v. Lerry M.
693 N.W.2d 901 (Nebraska Court of Appeals, 2005)
In Re Devin W.
693 N.W.2d 901 (Nebraska Court of Appeals, 2005)
State v. Mario P.
689 N.W.2d 875 (Nebraska Court of Appeals, 2004)
In Re Interest of Anthony V
680 N.W.2d 221 (Nebraska Court of Appeals, 2004)
In Re Interest of Mainor T.
674 N.W.2d 442 (Nebraska Supreme Court, 2004)
In Re Heather G.
664 N.W.2d 488 (Nebraska Court of Appeals, 2003)
State v. Teresa S.
664 N.W.2d 488 (Nebraska Court of Appeals, 2003)
In Re Interest of Stephanie H.
639 N.W.2d 668 (Nebraska Court of Appeals, 2002)
In Re Interest of Jaden H.
625 N.W.2d 218 (Nebraska Court of Appeals, 2001)
In Re Interest of Dylan W.
606 N.W.2d 847 (Nebraska Court of Appeals, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
481 N.W.2d 905, 240 Neb. 349, 1992 Neb. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-interest-of-dmb-neb-1992.