In Re Marcella B.

775 N.W.2d 470, 18 Neb. Ct. App. 153
CourtNebraska Court of Appeals
DecidedNovember 24, 2009
DocketA-09-382
StatusPublished
Cited by4 cases

This text of 775 N.W.2d 470 (In Re Marcella B.) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marcella B., 775 N.W.2d 470, 18 Neb. Ct. App. 153 (Neb. Ct. App. 2009).

Opinion

775 N.W.2d 470 (2009)
18 Neb. App. 153

In re Interest of MARCELLA B. and Juan S., children under 18 years of age.
State of Nebraska, appellee, and
Candice J. Novak, guardian ad litem, appellant,
v.
Latisha J., appellee.

No. A-09-382.

Court of Appeals of Nebraska.

November 24, 2009.

*474 Candice J. Novak, of Thomas G. Incontro, P.C., L.L.O., guardian ad litem.

Thomas C. Riley, Douglas County Public Defender, and Martha J. Wharton for appellee Latisha J.

SIEVERS and CASSEL, Judges, and HANNON, Judge, Retired.

SIEVERS, Judge.

Latisha J. is the natural mother of Marcella B. and Juan S. The State filed a petition, based upon allegations of physical abuse, to adjudicate the children under Neb.Rev.Stat. § 43-247(3)(a) (Reissue 2008). Before the adjudication hearing, the appointed guardian ad litem, Candice J. Novak, made a motion to have Marcella's testimony be heard in chambers. The separate juvenile court of Douglas County overruled the motion on April 3, 2009 (April 3 order), and Novak has appealed that order to this court. We dismiss the appeal because the juvenile court's April 3 order is not a final, appealable order, and therefore, this court lacks jurisdiction over this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On January 26, 2009, the State filed a petition in the separate juvenile court of Douglas County, alleging that Marcella and Juan were children within the meaning of § 43-247(3)(a) by reason of the faults or habits of their natural mother, Latisha, because Latisha has subjected Marcella to inappropriate physical contact and failed to provide Marcella and Juan with appropriate care, support, and/or supervision. The State also filed a motion for temporary custody of Marcella and Juan to be placed with the Department of Health and Human Services, which motion was granted by the court.

On March 3, 2009, Novak filed a motion to allow Marcella's testimony to be heard in chambers at the adjudication hearing, which hearing the court had previously set for April 7. The hearing on Novak's motion was held on March 9 and 23, when a therapist who had evaluated Marcella testified that having Marcella testify in front of her mother would cause Marcella harm. The court, in its April 3 order, overruled Novak's motion for in-chambers testimony because the court could not find by a preponderance of the evidence that the guardian ad litem met the burden of proof required by In re Interest of Brian B. et al., 268 Neb. 870, 689 N.W.2d 184 (2004). The court stated that it

*475 distinguishes [the therapist's] speculation in the instant case from the educated guess of [the] therapist ... in Brian B. in the following respect. The therapist in Brian B. was able to identify how the child's diagnosis manifests itself not only in the larger population, but also had a basis to render an opinion because of a treatment history with the child. Such is not the situation with [the] therapist ... in the instant matter.

Novak filed her notice of appeal of the juvenile court's April 3 order on April 7, 2009.

ASSIGNMENTS OF ERROR

Novak, the guardian ad litem, assigns as error that the juvenile court erred when it (1) overruled Novak's motion to allow in-chambers testimony; (2) applied an incorrect standard in determining whether Marcella should have been allowed to testify in chambers; and (3) failed to recognize that Marcella had a right to testify in chambers due to the undisputed evidence of harm that would result from courtroom testimony, given the rights granted Novak under Neb.Rev.Stat. § 43-246 (Reissue 2008).

STANDARD OF REVIEW

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 of the decisions made by the lower courts. In re Interest of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008).

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 Taylor W., 276 Neb. 679, 757 N.W.2d 1 (2008).

ANALYSIS

Finality of April 3 Order.

Novak, in her capacity as Marcella's guardian ad litem, argues that the juvenile court erred in overruling the motion for in-chambers testimony. However, Latisha argues that the April 3 order was not a final, appealable order, meaning that this court does not have jurisdiction to review this matter. In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. In re Interest of Taylor W., supra.

For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. Keef v. State, 262 Neb. 622, 634 N.W.2d 751 (2001). There are three types of final orders that can be reviewed on appeal: an order which affects a substantial right and which determines the action and prevents a judgment, an order affecting a substantial right made during a special proceeding, and an order affecting a substantial right made upon summary application in an action after a judgment is rendered. See Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997); Neb.Rev.Stat. § 25-1902 (Reissue 2008). Of the three types of final orders referenced above, the April 3 order is clearly not an order that determined the action and prevented judgment, because the action is ongoing as to all parties. Nor was it an order made on summary application after judgment, because there has been no judgment in this case. Therefore, overruling the motion for in-chambers testimony can be a final order only if it is an order affecting a substantial right made in a special proceeding.

*476 Orders affecting a substantial right in a special proceeding must, by definition, meet two requirements: a substantial right and a special proceeding. See Hernandez v. Blankenship, 257 Neb. 235, 596 N.W.2d 292 (1999). Nebraska law is clearly established that a proceeding before a juvenile court is a special proceeding for appellate purposes. In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 (2002). See In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved on other grounds, O'Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998). Therefore, the inquiry is whether overruling the motion for in-chambers testimony affected a substantial right of Marcella, given that she is, in essence, the appealing party through her guardian ad litem.

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Cite This Page — Counsel Stack

Bluebook (online)
775 N.W.2d 470, 18 Neb. Ct. App. 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marcella-b-nebctapp-2009.