In Re Interest of NLB

450 N.W.2d 676, 234 Neb. 280, 1990 Neb. LEXIS 20, 1990 WL 9106
CourtNebraska Supreme Court
DecidedJanuary 26, 1990
Docket89-305
StatusPublished
Cited by46 cases

This text of 450 N.W.2d 676 (In Re Interest of NLB) 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 NLB, 450 N.W.2d 676, 234 Neb. 280, 1990 Neb. LEXIS 20, 1990 WL 9106 (Neb. 1990).

Opinions

Hastings, C.J.

The mother has appealed from an order of the separate juvenile court which terminated her parental rights to her 6-year-old daughter N.L.B. She assigns as error the finding that clear and convincing evidence was presented that she failed to substantially comply with the juvenile court’s order of rehabilitation and that the best interests of the minor child would be served by termination of parental rights. We affirm.

Before addressing the merits of this appeal, it is necessary that we dispose of a procedural problem raised by appellee’s motion to dismiss. This motion alleges that we have no jurisdiction because appellant failed to file an order of authorization by the trial court to proceed in forma pauperis within the 30-day requirement of Neb. Rev. Stat. § 25-1912 (Reissue 1989).

Section 25-1912 requires that the notice of appeal must be filed and the docket fee paid within 30 days of the rendition of the judgment or decree or the making of the final order from which an appeal is taken. The appeal is deemed perfected upon compliance with those requirements. Conversely, the Supreme Court has no power to exercise appellate jurisdiction in proceedings to review a judgment of the trial court in a civil case unless the appellant shall have filed a notice of appeal and deposited a docket fee in the office of the clerk of the district court within the time fixed by statute. American Legion Post No. 90 v. Nebraska Liquor Control Commission, 199 Neb. 429, 259 N.W.2d 36 (1977).

However, Neb. Rev. Stat. § 25-2301 (Reissue 1989) directs that any court of the State of Nebraska shall authorize the commencement of an appeal without prepayment of fees and costs “by a person who makes an affidavit that he or she is unable to pay such costs or give security.” It is quite apparent that the Legislature intended that the filing of an affidavit of poverty was to replace the requirement of the payment of the docket fee.

[282]*282In this case, appellant has filed both the notice of appeal and the poverty affidavit within the time prescribed by statute. However, the appellee points out that no order of the trial court authorizing appellant to proceed in forma pauperis was obtained within the time limitation. Reliance is made upon the following from In re Interest of K.D.B., 233 Neb. 371, 372, 445 N.W.2d 620, 622 (1989): “In addition [to filing the affidavit], the party appealing must obtain the authorization of the trial court to proceed in forma pauperis. An appeal may not be taken in forma pauperis if the trial court certifies in writing that the appeal is not taken in good faith.”

The second sentence of the quoted portion from K.D.B. is taken from § 25-2301. However, although it may be customary and a mark of prudence for an appellant to obtain authorization of the trial court in order to forestall any finding of a lack of good faith and possible dismissal of the appeal, contrary to appellee’s assertion, there is no statutory requirement that such authorization be obtained in order to make the affidavit effective. K.D.B is not controlling here because in that case the appeal was not perfected because the purported affidavit was defective.

In any event, we hold that all that is necessary for one proceeding in forma pauperis to confer jurisdiction on this court on appeal is to file the notice of appeal and the affidavit of poverty required by § 25-2301. The motion to dismiss is overruled.

Turning to the merits of the appeal, this is another case involving one of several children of an unwed mother who by reasons of health or mental capacity and complete lack of interest is wholly unable and unwilling to cope with the situation. This child was one of seven born to the mother as the result of temporary relationships with three or four different men. Beginning in October 1984, the child involved here was placed in voluntary foster care because the mother was overwhelmed with the care of her then three children, particularly with the care of another daughter who was hospitalized because of leukemia.

Pursuant to a petition filed on July 26, 1985, the juvenile court issued an order for immediate custody and placement of [283]*283the child in foster care. The petition in substance alleged that because of the mother’s nomadic lifestyle and overuse of babysitters the child had been deprived oil a stable home; the mother had failed to provide the child timely and necessary medical care; the child’s personal hygiene had been neglected; and the mother had refused to cooperate with several agencies made available to assist her with parenting skills.

An adjudication hearing was held on March 11, 1986, following which the court determined in essence that the petition was true. Upon a review hearing held on April 18,1986, the court ordered that the child remain in the custody of the Department of Social Services and ordered the mother to comply with the following plan for rehabilitation:

a. Maintain a stable and clean residence;
b. Cooperate with all the workers including FITS [Family Intervention and Treatment Service] personnel;
c. Notify the Court of any change in residence immediately;
d. Maintain a steady legalincome;
e. Keep all rent payments current;
f. Have visitation as arranged by the guardian ad-litem, probation officer and Nebraska Department of Social Services; to include extended visits, progressing to overnights at the discretion of the FITS Staff and other workers involved;
g. Continue to allow the Visiting Nurse in her home.

On June 18, 1986, the juvenile court modified the previous order to the extent that the child was allowed to be placed in the care and in the home of the mother.

In January 1987, the juvenile court created additional requirements on the mother by requiring that she participate in a job training program and in family therapy or parent education and that the child be enrolled in a preschool program.

At a review hearing held on April 16,1987, it was discovered that there was inadequate supervision of the child and that there was a problem of alcohol abuse on the part of the mother’s current live-in boyfriend. The court found that the best interests of the child required her to be placed in the temporary [284]*284custody of the Department of Social Services.

Further review hearings were had on September 23, 1987, and March 22, 1988, at which times it was discovered that the mother continued to be in noncompliance with the plan for rehabilitation.

A motion to terminate parental rights was filed on August 24, 1988, and a series of hearings was held beginning on December 15, 1988, and concluding on January 24, 1989. The juvenile court then sustained the motion on the basis that clear and convincing evidence had shown that the child was within the meaning of Neb. Rev. Stat.

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In Re Interest of NLB
450 N.W.2d 676 (Nebraska Supreme Court, 1990)

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Bluebook (online)
450 N.W.2d 676, 234 Neb. 280, 1990 Neb. LEXIS 20, 1990 WL 9106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-interest-of-nlb-neb-1990.