State v. Kenneth B. (In re Interest of Kenneth B.)

909 N.W.2d 658, 25 Neb. Ct. App. 578
CourtNebraska Court of Appeals
DecidedFebruary 27, 2018
DocketNo. A-17-459.
StatusPublished
Cited by5 cases

This text of 909 N.W.2d 658 (State v. Kenneth B. (In re Interest of Kenneth 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
State v. Kenneth B. (In re Interest of Kenneth B.), 909 N.W.2d 658, 25 Neb. Ct. App. 578 (Neb. Ct. App. 2018).

Opinion

Inbody, Judge.

INTRODUCTION

Kenneth B., the biological father to Derrek B. and Kenneth B., Jr. (Kenneth Jr.), appeals the order of the Douglas County Separate Juvenile Court changing the permanency objective for the children from reunification to guardianship. Kenneth does not appeal the order as it relates to his third child, Kylie B. Because we conclude the order changing the permanency objective is not a final, appealable order, we dismiss the appeal for lack of jurisdiction.

BACKGROUND

In September 2014, Kenneth was given leave to intervene in juvenile court proceedings *661involving four minor children and their mother, Kari S. Genetic testing confirmed that three of those four children were Kenneth's biological children, namely Derrek, Kenneth Jr., and Kylie. At that time, the children were in the temporary custody of the Department of Health and Human Services (DHHS) with placement to exclude the parental home. In January 2015, the State filed a supplemental petition alleging that Derrek, Kenneth Jr., and Kylie were children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014) as a result of Kenneth's lack of parental care. The petition alleged that Kenneth was incarcerated; had failed to provide the children with safe, stable, and appropriate housing; and had failed to provide proper parental care, support, and supervision to the children. Following a hearing on the supplemental petition, the children were adjudicated as children within the meaning of § 43-247(3)(a). Kenneth subsequently appealed, and this court affirmed the juvenile court's determination in a memorandum opinion filed December 21, 2015, in case No. A-15-557.

In January 2016, the juvenile court entered an order setting the permanency objective as a concurrent plan of "reunification/adoption." The State moved to terminate Kenneth's parental rights in June 2016 but dismissed the petition without prejudice in September. Following another permanency planning hearing in October 2016, the permanency plan was reunification. In the October permanency planning order, Kenneth was ordered to participate in supervised visitation and to participate in family therapy, obtain safe housing, and follow the rules of his parole. The court further ordered that "a Family Group Conference be held to explore permanency through guardianship."

The juvenile court held its latest review and permanency planning hearing in March 2017, wherein Lindsey Witt of DHHS gave oral summaries on the condition and progress of the children and parents. Witt provided DHHS' recommendation that Kenneth "continue to participate in services and show ... ongoing consistency" but that the permanency objective be changed to "guardianship for Kylie, [Kenneth Jr.], and Derrek with their grandfather." In its submitted court report, DHHS recommended a course of action similar to that implemented from the October 2016 order:

[Kenneth] shall:
1. Participate in supervised visitation with Kylie, Derrek, and [Kenneth Jr.], as recommended by the children's therapists.
2. Participate in family therapy, as recommended by the children's therapists.
3. Maintain safe and stable housing and a legal source of income.
4. Follow all rules and regulations of Parole.
5. This case [will] be reviewed in four months.

In its March 2017 permanency planning order, the juvenile court adopted DHHS' recommendation and changed the permanency objective for Kenneth's three children from reunification to guardianship, stating that "the permanency objective is a guardianship for [Derrek, Kenneth Jr., and Kylie]." In support of this determination, the order stated that "it would be contrary to the health, safety and welfare of the minor children ... to be returned home at this time." The court found that reasonable efforts had been made to return the children to the home "and to finalize permanency to include [,] but not [be] limited to[,] evaluations, residential treatment, family therapy, individual therapy, bus tickets, placement and case management." During the March review and *662permanency planning hearing, the juvenile court explained:

I am adopting the recommendation of [DHHS]. The singular permanency plan in this case at this time is one of guardianship.
Now, [Kenneth], in terms of your relationship with the kids, you have this choice: You can agree to another
family group conference with yourself and with the foster parents to see if, on your own, you can reach some agreement as to how shall we visit.... Or [I] can ... decide how much contact you get.

The March 2017 order also scheduled a subsequent review and permanency planning hearing to be held 5 months later in August. Kenneth currently appeals from the March order.

ASSIGNMENT OF ERROR

Kenneth assigns, rephrased and consolidated, that the juvenile court erred by modifying the permanency objective from reunification to guardianship.

STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently of the juvenile court's findings. In re Interest of Carmelo G., 296 Neb. 805, 896 N.W.2d 902 (2017).

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017).

ANALYSIS

Kenneth appeals the March 2017 permanency planning order. Specifically, he challenges the juvenile court's changing the permanency goal from reunification to guardianship for Derrek and Kenneth Jr. Kenneth argues he was denied due process and a fundamentally fair procedure because he was not given notice that DHHS no longer supported its own written case plan and court report and because the State did not meet its burden to show that the written case plan and court report were not in the children's best interests. Kenneth further argues the change in the permanency objective was not supported by sufficient evidence.

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 Becka P. et al., 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. In re Interest of Darryn C., 295 Neb. 358

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Related

In re Interest of Mercedes L.
26 Neb. Ct. App. 737 (Nebraska Court of Appeals, 2019)
State v. Angaline L. (In re Interest of Mercedes L.)
923 N.W.2d 751 (Nebraska Court of Appeals, 2019)
In re Interest of Kenneth B.
25 Neb. Ct. App. 578 (Nebraska Court of Appeals, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
909 N.W.2d 658, 25 Neb. Ct. App. 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kenneth-b-in-re-interest-of-kenneth-b-nebctapp-2018.