In this interlocutory
appeal from a combination motion to suppress/motion in limine, the
single judge of the Nebraska Court of Appeals concludes that the
plain language of Neb. Rev. Stat. § 60-6,105 (Reissue 2004)
requires exclusion of the results of a first blood test and that
the results of a second blood test from the same blood draw must
be suppressed because the peace officer lacked reasonable grounds
to believe that defendant drove his vehicle while under the influence
of alcohol such as to support the taking of a blood sample under
the implied consent law.
State
v. Jacobitz (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- [Jurisdiction:]
It is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. State v. Vela, 272
Neb. 287, 721 N.W.2d 631 (2006). The right of appeal is statutory
and the requirements of a particular statute are mandatory and must
be complied with before the appellate court acquires jurisdiction
of the subject matter of an action. Karnes v. Wilkinson Mfg.,
220 Neb. 150, 368 N.W.2d 788 (1985). Further, statutes which are
in derogation of the common-law traditions of criminal procedure
are to be strictly construed. See State v. Woods, 255 Neb.
755, 587 N.W.2d 122 (1998). (No Factual Dispute:) A jurisdictional
question which does not involve a factual dispute is determined
by an appellate court as a matter of law, which requires the appellate
court to reach a conclusion independent of the lower court's decision.
Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006).
- [Motion
to Suppress:] A trial court's ruling on a motion to suppress
based on the Fourth Amendment, apart from determinations of reasonable
suspicion to conduct investigative stops and probable cause to perform
warrantless searches, is to be upheld on appeal unless its findings
of fact are clearly erroneous. State v. Allen, 269 Neb. 69,
690 N.W.2d 582 (2005).
- [Statutory
Interpretation:] To the extent an appeal calls for statutory
interpretation or presents questions of law, an appellate court
must reach an independent conclusion irrespective of the determination
made by the court below. State v. Petty, 269 Neb. 205, 691
N.W.2d 101 (2005).
Motion in
Limine:
- A motion in
limine is but a procedural step to prevent prejudicial evidence
from reaching the jury. Olson v. Sherrerd, 266 Neb. 207,
663 N.W.2d 617 (2003); State v. Timmens, 263 Neb. 622, 641
N.W.2d 383 (2002). It is not the office of such a motion to obtain
a final ruling upon the ultimate admissibility of the evidence.
State v. Timmens, supra.
- [Appeal
and Error:] Because overruling a motion in limine is not a final
ruling on the admissibility of evidence, it does not present a question
for appellate review prior to trial. See id.
While the motion
in limine resembles the more familiar motion to suppress, there
is an important distinction: the motion to suppress asserts that
items of evidence or confessions were illegally obtained and is
grounded in constitutional right, mandating that an evidentiary
hearing be held, while the motion in limine requests only a ruling
that the characteristics of a particular piece of evidence give
it potentially inflammatory aspects which appear to outweigh whatever
materiality it could have at trial, and is addressed to the discretion
of the trial judge. 75 Am. Jur. 2d Trial § 95 at 308 (1991).
Statutory
Interpretation:
Statutory language
is to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and unambiguous. State
v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005).
- [Constitutional
Law:] Even when a law is constitutionally suspect, a court will
attempt to interpret it in a manner such that it is consistent with
the constitution. Schumacher v. Johanns, 272 Neb. 346, 722
N.W.2d 37 (2006).
Date Filed
and Case No.: February 27, 2007. No. A-06-824.
Court Appealed
From: District Court for Kearney County: Stephen Illingworth,
Judge.
Attorneys
for the Appeal: David G. Wondra for State of Nebraska, appellant.
Arthur R. Langvardt for Curtis R. Jacobitz, appellee.
Judges:
Cassel, Judge.
Authored
By: Cassel, Judge.
Summary:
On the afternoon of 08/26/05, Curtis R. Jacobitz became involved
in a motor vehicle accident while operating a pickup truck, which
accident caused a fatality and occurred outside the Minden city
limits in Kearney County, Nebraska. Upon arriving at the scene of
the accident a deputy with the sheriff's office directed the Minden
chief of police, James Huff, to obtain a statistical blood sample
from Jacobitz at the hospital just because of the fatality accident.
Months later, Huff requested a second test of Jacobitz' blood, using
the original blood draw. An information filed 01/16/06 charging
Jacobitz with manslaughter. On February 14, Jacobitz filed a "Motion
for Suppression of Evidence and Motion in Limine," arguing
that the use of a blood sample taken for statistical purposes and
in the absence of an arrest for driving under the influence would
violate Jacobitz' constitutional and statutory rights. Jacobitz
also argued that the results of later testing on the blood obtained
should not be admissible. Jacobitz sought an order suppressing the
use of the blood testing results as evidence at the trial and also
a ruling that the same be inadmissible at the trial. The district
court sustained the motion as to the first test, finding that the
results of the first blood test were clearly inadmissible under
§ 60-6,105. With regard to a second blood test, the district
court stated that there must be an arrest for driving under the
influence supported by probable cause prior to the request for a
blood sample and as Jacobitz, was not arrested and Huff read the
implied consent form which Jacobitz did not sign, did not place
Jacobitz in custody, and Huff did not advise Jacobitz of his Miranda
rights. The court found that the test was not voluntarily given
and that the defect was not cured by sending in another request
for a blood test months after the accident. The State appealed to
a single judge of the Nebraska Court of Appeals under Neb. Rev.
Stat. § 29-824 (Cum. Supp. 2006).
Does the
Nebraska Court of Appeals have jurisdiction over this interlocutory
appeal? Looking to § 29-824 as explained in State v. Pope,
192 Neb. 755, 224 N.W.2d 521 (1974) Judge Cassel said it was clear
that the State has the right to an interlocutory appeal from an
order granting a motion to suppress evidence. However, the same
could not be said about an appeal from an order granting a motion
in limine as was the case here. During the time that appeals under
§ 29-824 were taken to a single judge of the Nebraska Supreme
Court, in State v. Wilcox, 230 Neb. 123, 430 N.W.2d 58 (1988), the
decision suggested that the basis of a motion to suppress under
§ 29-822 can be founded on the violation of a purely statutory
right. Further, the language of § 29-822 does not premise a
motion to suppress solely upon a violation of a constitutional right,
rather, it authorizes such motion by any person aggrieved by an
unlawful search and seizure. "Clearly, violation of a statute
would result in an unlawful act" said Judge Cassel. Therefore,
the Judge examined the basis for Jacobitz' motion regarding the
first blood sample.
While the statute
formed the ultimate basis for the district court's order excluding
the results of the first blood test, Judge Cassel noted that the
statute itself has constitutional underpinnings. Without the statutory
prohibition of § 60-6,105 on the use of a report and the statements
contained therein, § 60-6,103 would be constitutionally suspect.
Because (1) a violation of § 60-6,105 could render a seizure
pursuant to § 60-6,103 unlawful, (2) § 29-822 authorizes
a motion to suppress concerning evidence unlawfully seized, and
(3) § 29-824 authorizes an interlocutory appeal to a single
judge of this court from an order granting a motion to suppress,
and Judge Cassel concluded that he had jurisdiction to consider
the district court's order excluding the results of the first blood
test.
Should the
evidence from the first blood sample be excluded? Under the
plain language of the statutes, Judge Cassel noted that the analyst's
report required by § 60-6,104 and any statements therein (
the results of the test) would be excluded in any trial arising
out of the accident. "Clearly, the instant case arises out
of the accident of August 26, 2005. Thus, the district court did
not err in determining that the results of the first blood test
must be suppressed."
What about
the Results of Second Blood Test? Reviewing Schmerber v. California,
384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) in considering
the admissibility of the results of the second blood test in the
instant case, the district court stated that there must be an arrest
for driving under the influence supported by probable cause prior
to the request for a blood sample. Although § 60-6,197(4) does
not require an arrest, it does require that the peace officer have
reasonable grounds to believe that the person was driving while
under the influence of alcoholic liquor at the time of the accident.
Here, the only evidence in the record which could serve to establish
a suspicion of impairment or intoxication was that Huff smelled
an odor of an alcoholic beverage (the record did not disclose whether
such odor was strong or weak) coming from Jacobitz' mouth when Huff
inquired about Jacobitz' middle initial. The record lacked any opinion
by Huff that Jacobitz was under the influence of alcohol. "Because
I conclude that the facts of this case fail to establish that Huff
had reasonable grounds--let alone probable cause--to believe that
Jacobitz drove his vehicle while under the influence of alcohol,"
wrote Judge Cassel, "the results of Jacobitz' second blood
test must be suppressed."
Conclusion:
Judge Cassel concluded that the district court properly suppressed
the first blood test results in accordance with the plain language
of § 60-6,105. He further concluded that the second blood test
results must be suppressed because the peace officer lacked reasonable
grounds to believe that Jacobitz drove his vehicle while under the
influence of alcohol. AFFIRMED.
Appeal
and Error, Jurisdiction, Order by District Court
Here, defendant
did not timely perfect an appeal from her original verdict and sentence
after a jury trial for drug distribution, but she was subsequently
granted the right to file an appeal by the district court, pursuant
to a stipulation of the parties. Because the Nebraska Court of Appeals
found that the district court lacked jurisdiction to enter such
an order without the filing of a post-conviction proceeding and
such a proceedings subsequent findings, the district court order
allowing the defendant to file an appeal out of time led the Court
to dismiss this case for lack of jurisdiction.
State
v. Murphy, 15 Neb. App. 398 (2007)
Court
of Appeals Headnotes
Jurisdiction:
- Parties cannot
confer subject matter jurisdiction upon a judicial tribunal by consent.
- [Appeal
and Error.] a jurisdictional question which does not involve
a factual dispute is determined by an appellate court as a matter
of law. ••• 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.
- [Judgments:]
(Final Orders: Appeal and Error.) When an issue as to the subject
matter jurisdiction of 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 sua sponte and determine
whether the lower court had the power to enter the judgment or other
final order sought to be reviewed.
- [Stipulations:]
(Appeal and Error.) Appellate jurisdiction of the subject matter
can only be conferred in the manner provided by statute and cannot
be conferred by stipulation of the parties.
Postconviction:
- Postconviction
proceedings are civil in nature.
- [Effectiveness
of Counsel:] (Appeal and Error.) Where a defendant is denied
his or her right to appeal because counsel fails to perfect an appeal,
the proper vehicle for the defendant to seek relief is through the
Nebraska Postconviction Act.
- [Jurisdiction:]
(Effectiveness of Counsel: Appeal and Error.) The power to grant
a new direct appeal is implicit in Neb. Rev. Stat. § 29-3001
(Reissue 1995), and the district court has jurisdiction to exercise
such a power where the evidence establishes a denial or infringement
of the right to effective assistance of counsel at the direct appeal
stage of the criminal proceedings.
- [Time:]
(Appeal and Error.) A defendant obtaining postconviction relief
of a new direct appeal must properly appeal from his or her original
conviction and sentence based on the grant of such postconviction
relief. The 30-day limit within which the defendant must file his
or her new direct appeal commences on the day that such postconviction
relief is granted in the district court.
Records:
- [Appeal
and Error.] A party's brief may not expand the evidentiary record.
Stipulations.
- Parties have
no right to stipulate as to matters of law, and such a stipulation,
if made, will be disregarded.
Final Orders:
- [Jurisdiction:]
(Appeal and Error.) An appellate court is not bound by the parties'
acquiescence or consent as to whether the district court has entered
a final order which would confer jurisdiction upon the appellate
court.
Judgments:
- [Jurisdiction:]
(Collateral Attack.) Judgments entered by a court without subject
matter jurisdiction are void and subject to collateral attack.
Date Filed
and Case No.: February 27, 2007. No. a-05-1210.
Court Appealed
From: District Court for Hall County: James Livingston, Judge.
Attorneys
for the Appeal: Sonya K. Koperski for Amber L. Murphy, appellant.
Jon Bruning and Michael B. Guinan for State of Nebraska, appellee.
Judges: Inbody,
Chief Judge, and Moore and Cassel, Judges.
Authored
By: Moore, Judge.
Summary:
Amber L. Murphy was convicted of distribution of a controlled
substance, methamphetamine. A jury trial was held on 01/27/05 and
the jury returned a guilty verdict. On 03/15/05 the district court
entered an order sentencing Murphy to a term of incarceration for
a period of 2 to 4 years with credit for time served of 1 day. Murphy
did not file a notice of appeal within 30 days of the sentencing
order.
In her brief
on appeal to the Nebraska Court of Appeals, Murphy asserted that
on 07/25/05 she filed a motion for postconviction relief due to
the failure of her former counsel to file an appeal within the time
required by statute. The district court's order, entered September
19, reflected a stipulation by the parties and granted Murphy 30
days to file an appeal in this matter. On 10/11/05, Murphy filed
a notice of appeal, purporting to appeal from the March 15 sentencing
order. The Nebraska Court of Appeals initially dismissed Murphy's
appeal for lack of jurisdiction as having been filed out of time.
On 01/13/06, Murphy filed a motion for rehearing and sought leave
to file a supplemental transcript. On April 21, the Court sustained
Murphy's motion for rehearing and granted her leave to file a supplemental
transcript.
Did Murphy
properly perfect her appeal in the present case? Murphy argued
that her trial counsel failed to perfect an appeal from the March
15 sentencing order, that she filed a postconviction action to address
this failure, and that she properly perfected the present appeal
based on the relief granted by the district court in the postconviction
proceeding.
The power to
grant a new direct appeal is implicit in Neb. Rev. Stat. §
29-3001 (Reissue 1995), and the district court has jurisdiction
to exercise such a power where the evidence establishes a denial
or infringement of the right to effective assistance of counsel
at the direct appeal stage of the criminal proceedings. A defendant
obtaining postconviction relief of a new direct appeal must properly
appeal from his or her original conviction and sentence based on
the grant of such postconviction relief. The 30-day limit within
which the defendant must file his or her new direct appeal commences
on the day that such postconviction relief is granted in the district
court. The Nebraska Court of Appeals reminded that such a procedure
allows the appellate court to obtain jurisdiction over the new direct
appeal (assuming that the appeal is properly docketed in the appellate
court within 30 days of the grant of postconviction relief), while
still authorizing district courts to grant appropriate relief when
the constitutional defect in the prior proceedings occurred only
at the direct appeal stage.
The Court pointed
out that what is required for purposes of the present appeal is
evidence that Murphy was awarded postconviction relief of a new
direct appeal and evidence that a notice of appeal was filed within
30 days of the grant of such relief. The problem in this case is
that the record before the Court is insufficient to establish that
the district court was properly exercising its jurisdiction of a
postconviction proceeding.
* •First,
the record does not contain Murphy's motion for postconviction
relief, thus the Court had no knowledge of the allegations made
in the postconviction proceeding. Although in Murphy's brief,
she asserts that she filed a motion for postconviction relief
due to the failure of her former counsel to file an appeal within
the time required by statute, but no such motion appeared in the
record. Thus, the absence of the postconviction motion in its
record precluded the Court from considering, as a proper element
of postconviction relief, the district court's order granting
Murphy leave to file an appeal.
* •Second (and perhaps more importantly) the record failed
to provide any factual basis for a determination that Murphy was
deprived of any constitutional right in her failure to timely
pursue a direct appeal. The only record before the Court regarding
the postconviction proceedings is the stipulation of Murphy's
counsel and the prosecutor before the district court. "The
stipulation does not set forth any facts pertaining to a deprivation
of constitutional rights; rather, it is purely conclusory. "Parties
have no right to stipulate as to matters of law, and such a stipulation,
if made, will be disregarded" ruled the Court. Under §
29-3001, the jurisdiction of the district court to grant postconviction
relief depends upon the existence of a factual circumstance whereby
there was such a denial or infringement of the rights of the prisoner
to render the judgment void or voidable. The same postconviction
statute requires the district court to make findings of fact and
conclusions of law with respect thereto. Here, there are no allegations
of fact, no stipulations of fact, and no findings of fact showing
any such denial or infringement of Murphy's constitutional rights,
even in the "stipulation." The Nebraska Supreme Court
has long held that appellate jurisdiction of the subject matter
can only be conferred in the manner provided by statute and cannot
be conferred by stipulation of the parties. An appellate court
is not bound by the parties' acquiescence or consent as to whether
the district court has entered a final order which would confer
jurisdiction upon the appellate court. Parties cannot confer subject
matter jurisdiction upon a judicial tribunal by consent.
As such the
Court found that the stipulation was not sufficient to invoke the
district court's jurisdiction pursuant to the postconviction statute
and constituted an invalid attempt to extend the time for appeal.
Because the stipulation of the parties was not sufficient to invoke
the district court's subject matter jurisdiction in the postconviction
proceeding, the district court's order purporting to grant an appeal
was void.
Conclusion:
The Court concludes that Murphy failed to timely invoke appellate
jurisdiction and that the district court order based solely upon
a conclusory stipulation of the parties without any factual basis,
which order purports to grant 30 days to file an appeal, is without
jurisdiction and void. "Accordingly, we must dismiss the appeal."
APPEAL DISMISSED.
Death
During Police Pursuit, Innocent Third Party Exception
The issue in
this Nebraska Court of Appeals decision is whether one of the passengers
in a stolen vehicle (where the passenger may not have known the
vehicle was stolen) was an "innocent third party," thus
entitling her estate to recover under Neb. Rev. Stat. § 13-911
(Reissue 1997). The passenger's death was the result of an accident
resulting from a police chase which ensued when police discovered
the car was stolen.
Jura
v. City of Omaha, 15 Neb. App. 390 (2007)
Court
of Appeals Headnotes
Political
Subdivisions Tort Claims Act:
- [Appeal
and Error.] In actions brought under the Political Subdivisions
Tort Claims Act, the findings of the trial court will not be disturbed
on appeal unless they are clearly wrong, and when determining the
sufficiency of the evidence to sustain the verdict, it must be considered
in the light most favorable to the successful party.
- [Police
Officers and Sheriffs:] (Motor Vehicles: Proximate Cause: Damages.)
Pursuant to Neb. Rev. Stat. § 13-911(1) (Reissue 1997), in
case of death, injury, or property damage to any innocent third
party proximately caused by the action of a law enforcement officer
employed by a political subdivision during vehicular pursuit, damages
shall be paid to such third party by the political subdivision employing
the officer.
Judgments:
- [Statutes:]
(Appeal and Error.) When an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an independent,
correct conclusion irrespective of the determination made by the
court below.
Police Officers
and Sheriffs:
- [Motor
Vehicles:] In the context of determining whether a passenger
is an innocent third party, the question of whether a person is
sought to be apprehended in the fleeing vehicle is a mixed question
of fact and law. ••• A police officer's grounds for
seeking to apprehend occupants in a vehicular chase situation must
have a reasonable basis in the law and facts. (Words and Phrases.)
For a passenger to be an innocent third party, the passenger (1)
must not have promoted, provoked, or persuaded the driver to engage
in flight from law enforcement personnel and (2) must not be one
who is sought to be apprehended in the fleeing vehicle.
- [Words
and Phrases.] Apprehension by a police officer can mean seizure
in the name of the law, arrest, catch, or detain.
Date Filed
and Case No.: February 27, 2007. No. A-05-165.
Court Appealed
From: District Court for Douglas County: John D. Hartigan, Jr.,
Judge.
Attorneys
for the Appeal: William J. Pfeffer for Richard C. Jura, Special
Administrator of the Estate of Amanda C. Jura, deceased, appellant.
Thomas O. Mumgaard for City of Omaha, a municipal corporation, appellee.
Judges:
Irwin and Sievers, Judges, and Hannon, Judge, Retired.
Not Participating:
Inbody, Chief Judge
Authored
By: Sievers, Judge.
Summary:
Richard C. Jura (Jura), as special administrator of the estate of
Amanda C. Jura, appeals from the decision of the district court
for Douglas County which dismissed his wrongful death claim against
the City of Omaha (the City). The action is involved a police pursuit
that resulted in a traffic accident. At approximately 4 a.m. on
12/08/02 in Omaha, Nebraska, Amanda was a back seat passenger in
a stolen (Amanda did not know the Lincoln was stolen) Lincoln Town
Car driven by Jacob Witt. Also in the Lincoln were Tiffany Bruce,
in the front passenger seat, and Robin Abraham, also in the back
seat. After the accident, it was discovered that Bruce's purse contained
a controlled substance. While in the Lincoln, they drove past a
police cruiser which began to follow the Lincoln (without the cruiser's
lights or sirens on.) No traffic violations were committed, but
the officer thought it was strange that young people would be out
in an expensive car at 4 o'clock in the morning. After checking
with the police dispatcher the officer was informed that the Lincoln
was reported stolen. The Lincoln "started to take off,"
and the officer declared "pursuit," turned on the cruiser's
lights and sirens, radioing for other officers to help in the pursuit.
During the pursuit, the Lincoln missed a curve, went over an embankment,
and crashed into a tree. Amanda and Abraham died as a result of
their injuries. Following the dismissal, Amanda's Estate appealed
to the Nebraska Court of Appeals.
Was Amanda
an "innocent third party," thus entitling her estate to
recover under Neb. Rev. Stat. § 13-911 (Reissue 1997).
Nebraska Revised Statutes § 13-911(1), states: "In case
of death, injury, or property damage to any innocent third party
proximately caused by the action of a law enforcement officer employed
by a political subdivision during vehicular pursuit, damages shall
be paid to such third party by the political subdivision employing
the officer." For a passenger to be an innocent third party,
the passenger (1) must not have promoted, provoked, or persuaded
the driver to engage in flight from law enforcement personnel and
(2) must not be one who is sought to be apprehended in the fleeing
vehicle. Either circumstance prevents a finding that a claimant
in a police pursuit case was an innocent third party. The Court
said it need not analyze both disqualifying circumstances, and after
study of the record it concluded that the disqualifying factor of
"sought to be apprehended" lent itself to the most straightforward
analysis and resolution.
Part of the
district court's rationale for its conclusion on the issue of apprehension
was that "[a]ll were aware that the group possessed controlled
substances, and were subject to arrest if stopped and searched."
The Court said that to the extent that the district court meant
that everyone in the group was subject to arrest for the drugs in
Bruce's purse, it rejected that conclusion. All of the passengers
knew that Bruce had drugs in her purse, but such fact did not make
Amanda necessarily subject to arrest, because the purse was not
her property and she was not in possession of the drugs.
Instead, the
officer here started the pursuit of the Lincoln once he became aware
that the vehicle was stolen. The evidence did not establish that
Amanda knew the Lincoln was stolen, but as the trial court reasoned,
an inference of such knowledge might be permissible. However, the
Court recited testimony in the opinion and concluded that given
the testimony of the police officers, the Court found that Amanda
was a person sought to be apprehended in the fleeing vehicle. "A
police officer's grounds for seeking to apprehend occupants in a
vehicular chase situation must have a reasonable basis in the law
and facts. Such a basis clearly exists in this case, because the
vehicle was a stolen vehicle, as opposed to, for example, a chase
starting with a traffic violation" said the Court. "Thus,
Amanda was not an innocent third party and her estate is barred
from recovering under § 13-911." The Court reasoned that
it followed that it need not address whether Amanda promoted, provoked,
or persuaded the driver to engage in flight from law enforcement
personnel. AFFIRMED.
In this appellate
decision, the Nebraska Court of Appeals concluded that a juvenile
court did not err in rejecting the Nebraska Department of Health
and Human Services' recommendation to terminate jurisdiction and
in finding that the recommended rehabilitation plan of the "LB1184
Treatment Team" was in the children's best interests.
In
re Interest of Amoria M. et al., children under 18 years of age.
(Not
Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- [Juvenile
Cases:] 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 Jagger L.,
270 Neb. 828, 708 N.W.2d 802 (2006). When the evidence is in conflict,
however, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of the
facts over the other. Id.
Juvenile
Courts:
- [Purpose:]
Nebraska law states that the purpose of the Nebraska Juvenile Code,
Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 2004),
is to "assure the rights of all juveniles to care and protection
and a safe and stable living environment and to development of their
capacities for a healthy personality, physical well-being, and useful
citizenship and to protect the public interest." § 43-246(1).
The Nebraska Juvenile Code must be liberally construed to accomplish
its purpose of serving the best interests of the juveniles who fall
within it. In re Interest of R.A. and V.A., 225 Neb. 157,
403 N.W.2d 357 (1987), overruled on other grounds, State v. Jacob,
242 Neb. 176, 494 N.W.2d 109 (1993). A juvenile court has broad
discretion as to the disposition of those who fall within its jurisdiction.
Id.
- [Rehabilitative
Plan:] A juvenile court may, under proper procedures and when
warranted, order a rehabilitative plan with reasonable provisions
material to the plan's rehabilitative objective of correcting, eliminating,
or ameliorating the condition or situation on the basis of which
the juvenile court asserted jurisdiction. In re Interest of M.R.,
J.R., and N.R., 228 Neb. 47, 420 N.W.2d 924 (1988). (Materiality:)
"Materiality of a provision in a court-ordered rehabilitative
plan is determined by a cause-and-effect relationship: Does a provision
in the plan tend to correct, eliminate, or ameliorate the situation
or condition on which the adjudication has been obtained under the
Nebraska Juvenile Code? An affirmative answer to the preceding question
provides the materiality necessary in a rehabilitative plan for
a parent involved in proceedings within a juvenile court's jurisdiction.
. . ." Id. at 52, 420 N.W.2d at 927.
Date Filed
and Case No. : February 27, 2007. No. A-06-771.
Court Appealed
From: Juvenile Review Panel, Gerald E. Rouse, Graten D. Beavers,
and Kurt Rager, Judges, on appeal thereto from the Separate Juvenile
Court of Douglas County, Elizabeth G. Crnkovich, Judge.
Attorneys
for the Appeal: Milo Alexander for Nebraska Department of Health
and Human Services, appellant. No appearance for State of Nebraska,
R. Jane S. and Gary S.
Judges:
Irwin, Carlson, and Cassel, Judges. Irwin, Judge.
Authored
By:
Summary:
The Nebraska Department of Health and Human Services (DHHS)
appealed to the Nebraska Court of Appeals, the decision of the Juvenile
Review Panel affirming an order of a separate juvenile court finding
that it is in the best interests of the minor children of Gary S.
and R. Jane S. (Jane) to remain under the jurisdiction of the juvenile
court. In January 2006, DHHS recommended that the trial court terminate
jurisdiction by April. At that hearing, the trial court stated it
was "troubled," because although the children were returned
to the parental home 1 year prior, "even today there are concerns."
The court stated that it was "not about seeking perfection"
but that rushing a case when a family is "teetering" is
"practically [an] invitation to come back." The court
referred the matter to the "LB1184 Treatment Team" to
assess the situation. In March, the "LB1184 Treatment Team"
provided a report recommending, among other things, that the "Juvenile
Court maintain jurisdiction . . . until the family has demonstrated
stability for 6 months . . . ." In April 2006, DHHS recommended
that the trial court terminate jurisdiction. The trial court rejected
DHHS' recommendation, and in May, the court adopted the recommendations
of the "LB1184 Treatment Team," excluding the 6-month
minimal threshold for stability. DHHS appealed to a juvenile review
panel, and the review panel affirmed the trial court's order. This
appeal followed.
Did the trial
court err in failing to adopt DHHS' recommendation to terminate
jurisdiction? DHHS challenged the trial court's May 2006 order,
which failed to adopt DHHS' recommendation that terminating jurisdiction
was in the children's best interests. DHHS argued that the parents
need not demonstrate perfection and that the trial court exceeded
a statutory 1-year limit for court-imposed conditions on children
returned to the parental home. The Court found no merit to these
arguments.
* •Best
Interest of Child: The record in the instant case indicates
by a preponderance of the evidence that terminating jurisdiction
is not in the children's best interests, because the family has
failed to demonstrate stability. The record showed that the children
here were neglected because of the poverty of the parents. Quoting
In re Interest of D., 209 Neb. 529, 308 N.W.2d 729 (1981),
DHHS argued: "Courts cannot deprive a parent of the custody
of a child merely because the parent has limited resources or
financial problems . . ." The Court found no merit to this
argument and noted that DHHS' cited case concerned the termination
of parental rights, not the trial court's right to maintain jurisdiction
when a permanency goal is not yet reached. "The evidence
in the instant case indicates that the permanency goal has not
been met and that the family's lack of financial stability is
directly related to their inability to care for their home and
children" said the Court. Because Gary and Jane failed to
meet the permanency objective of maintaining steady employment
and housing, the Court found that terminating jurisdiction would
not be in the children's best interests. * •Duration of Court-Imposed Conditions: DHHS asserted
that the trial court's jurisdiction over the children exceeded
the statutory time limit under § 43-288, which places a maximum
duration of 1 year for conditions imposed upon children who are
permitted to remain in their home pursuant to § 43-284 or
§ 43-286. Because the trial court renewed the rehabilitation
plan in new orders issued approximately every 3 months, the Court
found that the court had not exceeded the maximum time duration
for imposing conditions. Because a juvenile court has the discretionary
power to prescribe a reasonable plan for parental rehabilitation
to correct the conditions underlying the adjudication that a child
is a juvenile within the Nebraska Juvenile Code and because the
rehabilitation plan has been renewed within the 1-year limit by
a new order, the Court found no error in the juvenile court's
maintaining jurisdiction over the children.
Whether the
trial court erred in adopting the recommended rehabilitation plan
of the "LB1184 Treatment Team?" DHHS challenged the
trial court's adoption of the recommendation of the "LB1184
Treatment Team." Because the Court found that the rehabilitation
plan is related to the family's needs and that the family has not
yet satisfied the permanency objective of family preservation, it
found no merit to DHHS' arguments. After reviewing the treatment
team's recommendation and the evidence presented at the permanency
review hearings, the Court found that the provisions of the rehabilitation
plan were material to the conditions giving rise to this case, because
they provide corrective conditions to the family's underlying problems.
"To the extent that DHHS provided some of these services at
a prior time, it is apparent that such assistance is still necessary
because the family has yet to maintain stability" they said.
While DHHS argued that the trial court erred in omitting the treatment
team's recommendation that the family maintain stability for over
6 months, alleging that the family had maintained stability for
over 6 months, the Court disagreed. "The evidence clearly indicates
that the family was not current on bills as of January 2006. As
such, because the Court found that the provisions in the recommendation
are materially related to the facts giving rise to this case and
will assist in correcting the underlying conditions, it found that
the trial court did not err in adopting the plan of the "LB1184
Treatment Team."
Conclusion:
The Nebraska Court of Appeals concluded that the trial court
did not err in rejecting DHHS' recommendation to terminate jurisdiction
and in finding that the recommended rehabilitation plan of the "LB1184
Treatment Team" was in the children's best interests. AFFIRMED.
Motion
to Suppres, Blood Alcohol Test, No Arrest for DUI
In this interlocutory
appeal from a combination motion to suppress/motion in limine, the
single judge of the Nebraska Court of Appeals concludes that the
plain language of Neb. Rev. Stat. § 60-6,105 (Reissue 2004)
requires exclusion of the results of a first blood test and that
the results of a second blood test from the same blood draw must
be suppressed because the peace officer lacked reasonable grounds
to believe that defendant drove his vehicle while under the influence
of alcohol such as to support the taking of a blood sample under
the implied consent law.
State
v. Jacobitz (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- [Jurisdiction:]
It is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. State v. Vela, 272
Neb. 287, 721 N.W.2d 631 (2006). The right of appeal is statutory
and the requirements of a particular statute are mandatory and must
be complied with before the appellate court acquires jurisdiction
of the subject matter of an action. Karnes v. Wilkinson Mfg.,
220 Neb. 150, 368 N.W.2d 788 (1985). Further, statutes which are
in derogation of the common-law traditions of criminal procedure
are to be strictly construed. See State v. Woods, 255 Neb.
755, 587 N.W.2d 122 (1998). (No Factual Dispute:) A jurisdictional
question which does not involve a factual dispute is determined
by an appellate court as a matter of law, which requires the appellate
court to reach a conclusion independent of the lower court's decision.
Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006).
- [Motion
to Suppress:] A trial court's ruling on a motion to suppress
based on the Fourth Amendment, apart from determinations of reasonable
suspicion to conduct investigative stops and probable cause to perform
warrantless searches, is to be upheld on appeal unless its findings
of fact are clearly erroneous. State v. Allen, 269 Neb. 69,
690 N.W.2d 582 (2005).
- [Statutory
Interpretation:] To the extent an appeal calls for statutory
interpretation or presents questions of law, an appellate court
must reach an independent conclusion irrespective of the determination
made by the court below. State v. Petty, 269 Neb. 205, 691
N.W.2d 101 (2005).
Motion in
Limine:
- A motion in
limine is but a procedural step to prevent prejudicial evidence
from reaching the jury. Olson v. Sherrerd, 266 Neb. 207,
663 N.W.2d 617 (2003); State v. Timmens, 263 Neb. 622, 641
N.W.2d 383 (2002). It is not the office of such a motion to obtain
a final ruling upon the ultimate admissibility of the evidence.
State v. Timmens, supra.
- [Appeal
and Error:] Because overruling a motion in limine is not a final
ruling on the admissibility of evidence, it does not present a question
for appellate review prior to trial. See id.
While the motion
in limine resembles the more familiar motion to suppress, there
is an important distinction: the motion to suppress asserts that
items of evidence or confessions were illegally obtained and is
grounded in constitutional right, mandating that an evidentiary
hearing be held, while the motion in limine requests only a ruling
that the characteristics of a particular piece of evidence give
it potentially inflammatory aspects which appear to outweigh whatever
materiality it could have at trial, and is addressed to the discretion
of the trial judge. 75 Am. Jur. 2d Trial § 95 at 308 (1991).
Statutory
Interpretation:
Statutory language
is to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and unambiguous. State
v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005).
- [Constitutional
Law:] Even when a law is constitutionally suspect, a court will
attempt to interpret it in a manner such that it is consistent with
the constitution. Schumacher v. Johanns, 272 Neb. 346, 722
N.W.2d 37 (2006).
Date Filed
and Case No.: February 27, 2007. No. A-06-824.
Court Appealed
From: District Court for Kearney County: Stephen Illingworth,
Judge.
Attorneys
for the Appeal: David G. Wondra for State of Nebraska, appellant.
Arthur R. Langvardt for Curtis R. Jacobitz, appellee.
Judges:
Cassel, Judge.
Authored
By: Cassel, Judge.
Summary:
On the afternoon of 08/26/05, Curtis R. Jacobitz became involved
in a motor vehicle accident while operating a pickup truck, which
accident caused a fatality and occurred outside the Minden city
limits in Kearney County, Nebraska. Upon arriving at the scene of
the accident a deputy with the sheriff's office directed the Minden
chief of police, James Huff, to obtain a statistical blood sample
from Jacobitz at the hospital just because of the fatality accident.
Months later, Huff requested a second test of Jacobitz' blood, using
the original blood draw. An information filed 01/16/06 charging
Jacobitz with manslaughter. On February 14, Jacobitz filed a "Motion
for Suppression of Evidence and Motion in Limine," arguing
that the use of a blood sample taken for statistical purposes and
in the absence of an arrest for driving under the influence would
violate Jacobitz' constitutional and statutory rights. Jacobitz
also argued that the results of later testing on the blood obtained
should not be admissible. Jacobitz sought an order suppressing the
use of the blood testing results as evidence at the trial and also
a ruling that the same be inadmissible at the trial. The district
court sustained the motion as to the first test, finding that the
results of the first blood test were clearly inadmissible under
§ 60-6,105. With regard to a second blood test, the district
court stated that there must be an arrest for driving under the
influence supported by probable cause prior to the request for a
blood sample and as Jacobitz, was not arrested and Huff read the
implied consent form which Jacobitz did not sign, did not place
Jacobitz in custody, and Huff did not advise Jacobitz of his Miranda
rights. The court found that the test was not voluntarily given
and that the defect was not cured by sending in another request
for a blood test months after the accident. The State appealed to
a single judge of the Nebraska Court of Appeals under Neb. Rev.
Stat. § 29-824 (Cum. Supp. 2006).
Does the
Nebraska Court of Appeals have jurisdiction over this interlocutory
appeal? Looking to § 29-824 as explained in State v. Pope,
192 Neb. 755, 224 N.W.2d 521 (1974) Judge Cassel said it was clear
that the State has the right to an interlocutory appeal from an
order granting a motion to suppress evidence. However, the same
could not be said about an appeal from an order granting a motion
in limine as was the case here. During the time that appeals under
§ 29-824 were taken to a single judge of the Nebraska Supreme
Court, in State v. Wilcox, 230 Neb. 123, 430 N.W.2d 58 (1988), the
decision suggested that the basis of a motion to suppress under
§ 29-822 can be founded on the violation of a purely statutory
right. Further, the language of § 29-822 does not premise a
motion to suppress solely upon a violation of a constitutional right,
rather, it authorizes such motion by any person aggrieved by an
unlawful search and seizure. "Clearly, violation of a statute
would result in an unlawful act" said Judge Cassel. Therefore,
the Judge examined the basis for Jacobitz' motion regarding the
first blood sample.
While the statute
formed the ultimate basis for the district court's order excluding
the results of the first blood test, Judge Cassel noted that the
statute itself has constitutional underpinnings. Without the statutory
prohibition of § 60-6,105 on the use of a report and the statements
contained therein, § 60-6,103 would be constitutionally suspect.
Because (1) a violation of § 60-6,105 could render a seizure
pursuant to § 60-6,103 unlawful, (2) § 29-822 authorizes
a motion to suppress concerning evidence unlawfully seized, and
(3) § 29-824 authorizes an interlocutory appeal to a single
judge of this court from an order granting a motion to suppress,
and Judge Cassel concluded that he had jurisdiction to consider
the district court's order excluding the results of the first blood
test.
Should the
evidence from the first blood sample be excluded? Under the
plain language of the statutes, Judge Cassel noted that the analyst's
report required by § 60-6,104 and any statements therein (
the results of the test) would be excluded in any trial arising
out of the accident. "Clearly, the instant case arises out
of the accident of August 26, 2005. Thus, the district court did
not err in determining that the results of the first blood test
must be suppressed."
What about
the Results of Second Blood Test? Reviewing Schmerber v. California,
384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) in considering
the admissibility of the results of the second blood test in the
instant case, the district court stated that there must be an arrest
for driving under the influence supported by probable cause prior
to the request for a blood sample. Although § 60-6,197(4) does
not require an arrest, it does require that the peace officer have
reasonable grounds to believe that the person was driving while
under the influence of alcoholic liquor at the time of the accident.
Here, the only evidence in the record which could serve to establish
a suspicion of impairment or intoxication was that Huff smelled
an odor of an alcoholic beverage (the record did not disclose whether
such odor was strong or weak) coming from Jacobitz' mouth when Huff
inquired about Jacobitz' middle initial. The record lacked any opinion
by Huff that Jacobitz was under the influence of alcohol. "Because
I conclude that the facts of this case fail to establish that Huff
had reasonable grounds--let alone probable cause--to believe that
Jacobitz drove his vehicle while under the influence of alcohol,"
wrote Judge Cassel, "the results of Jacobitz' second blood
test must be suppressed."
Conclusion:
Judge Cassel concluded that the district court properly suppressed
the first blood test results in accordance with the plain language
of § 60-6,105. He further concluded that the second blood test
results must be suppressed because the peace officer lacked reasonable
grounds to believe that Jacobitz drove his vehicle while under the
influence of alcohol. AFFIRMED.
Pretrial
12(b) Motion, Appeal and Error, Final Order
Here, the Nebraska
Court of Appeals rules that an order overruling a pretrial motion
to dismiss pursuant to rule 12(b)(1), (2), and (6) is not a final
order and dismisses this appeal.
- The question
of jurisdiction is a question of law.
- [Final
Orders:] (Appeal and Error.) For an appellate court to acquire
jurisdiction of an appeal, there must be a judgment, decree, or
final order entered by the court from which the appeal is timely
taken. ••• An appellate court is without jurisdiction
to entertain appeals from nonfinal orders.
Attorney
Fees:
- [Appeal
and Error.] Attorney fees can be awarded against a party bringing
an appeal that is without rational argument based on law and evidence.
Constitutional
Law:
- [Jurisdiction:]
(Legislature: Appeal and Error.) Jurisdiction is vested in an
appellate court through the state Constitution and the Legislature,
Neb. Const. art. v, § 2, and Neb. Rev. Stat. § 24-204
(Reissue 1995).
- [Supreme
Court:] (Jurisdiction: Appeal and Error.) Except in those cases
wherein original jurisdiction is specially conferred by Neb. Const.
art. v, § 2, the Nebraska Supreme Court exercises appellate
jurisdiction, and such appellate jurisdiction can be conferred only
in the manner provided by statute.
Judgments:
- [Final
Orders.] A judgment rendered by the district court that is merely
a step or proceeding within the overall action is not a special
proceeding within the meaning of Neb. Rev. Stat. § 25-1902
(Reissue 1995).
Rules of
the Supreme Court:
- [Motions
to Dismiss:] (Final Orders.) An order overruling a pretrial
motion to dismiss pursuant to Neb. Ct. r. of Pldg. in Civ. Actions
12(b)(1), (2), and (6) (rev. 2003) is not a final order.
Attorney
Fees:
- [Words
and Phrases.] As used in Neb. Rev. Stat. § 25-824(2) (Reissue
1995) concerning allowance of an attorney fee, "frivolous"
means a legal position wholly without merit, that is, without rational
argument based on law and evidence to support a litigant's position
in the lawsuit.
- [Costs.]
No attorney fees or costs shall be assessed if a claim or defense
was asserted by an attorney or party in a good faith attempt to
establish a new theory of law in this state.
Date Filed
and Case No.: February 27, 2007. No. a-06-1361.
Court Appealed
From: Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge.
Attorneys
for the Appeal: George A. Sutera for Headliners Entertainment
Group, Inc., a Delaware corporation, appellant. Thomas O. Kelley
for Qwest Business Resources, Inc., a Colorado corporation, appellee.
Judges: Carlson,
Moore, and Cassel, Judges.
Authored
By: Cassel, Judge.
Summary:
Qwest Business Resources, Inc. (Qwest) commenced this action
against three defendants regarding various breaches of a lease agreement
and asserted claims for forcible entry and detainer for unpaid rents
and other damages for breach of the lease, and upon various theories
including consolidation, merger, or express or implied agreement
that one of the defenders was liable for the other's debts and obligations.
One of the defendants,
Headliners, filed a motion to dismiss, citing rule 12(b)(1) and
(2). However, in the body of the motion, Headliners specifically
asserted that the district court lacked jurisdiction over the subject
matter with regard to Headliners and that Qwest's complaint failed
to state a claim upon which relief could be granted against Headliners.
By an order entered 11/08/06 the district court denied the motion.
Headliners appealed to the Nebraska Court of Appeals.
Is the district
court's denial of a dismissal under 12(b)(1) and (2) a final, appealable,
order? Qwest filed a motion for summary dismissal for lack of
jurisdiction asserting that the order of the district court overruling
Headliners' motion to dismiss was not a final order and that consequently,
the Nebraska Court of Appeals lacked jurisdiction of this appeal.
Because Nebraska has only recently adopted rules of pleading similar
to federal notice pleading procedures, the Court said this appeal
presented the first opportunity for a Nebraska appellate court to
determine whether an order overruling a pre-trial motion to dismiss
pursuant to Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(1), (2),
and (6) (rev. 2003) is a final order.
In construing
Nebraska's current pleading rules, the Nebraska Supreme Court has
looked to federal cases interpreting similar federal rules. Although
the U.S. Supreme Court--applying what has become known as the "collateral
order doctrine" has carved out a small class of trial court
decisions that, though short of a final judgment, are immediately
appealable, such decisions are appealable because they "finally
determine claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and too
independent of the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated." Cohen
v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221,
93 L. Ed. 1528 (1949). Headliners does not contend that the collateral
order doctrine applies in the case so the Court turned to Headliners'
specific arguments.
* •First,
Headliners cites decisions, such as Bohaboj v. Rausch,
272 Neb. 394, 721 N.W.2d 655 (2006), setting forth standards of
review applicable to orders granting motions to dismiss. Headliners
then asserted that "if this [c]ourt has authority to rule
upon a grant of a [m]otion to [d]ismiss[,] conversely this [c]ourt
should have authority to rule on a denial of the same." The
Court said this notion flies in the face of the well-accepted
rule that if an order is interlocutory, immediate appeal from
the order is disallowed so that courts may avoid piecemeal review,
chaos in trial procedure, and a succession of appeals granted
in the same case to secure advisory opinions to govern further
actions of the trial court.
* •Headliners next attempted to argue that an order denying
a motion to dismiss falls within the definition of a final order,
specifically, as an order affecting a substantial right made in
a special proceeding. Like the prior argument, without any supporting
authority for the particular proposition, Headliners contends
that a motion to dismiss is a special proceeding. "A judgment
rendered by the district court that is merely a step or proceeding
within the overall action is not a special proceeding within the
meaning of § 25-1902" reminded the Court. The Court
concluded that the order overruling Headliners' motion to dismiss
was a step or proceeding within the overall action and thus was
not made in a special proceeding within the meaning of §
25-1902.
The Court ruled that an order overruling a pretrial motion to dismiss
pursuant to rule 12(b)(1), (2), and (6) is not a final order and
rejected Headliners' arguments and determined that the order was
not final.
Should the
Court pursuant to § 25-824(2), award Qwest attorney fees related
to this appeal, claiming that the appeal is frivolous. While
the Court was not persuaded by Headliners' arguments, given the
absence of any prior Nebraska case addressing the finality of an
order denying a motion to dismiss, it could not conclude that Headliners'
appeal was frivolous. "We therefore determine that Qwest is
not entitled to attorney fees."
Conclusion:
Because an order denying a motion to dismiss made pursuant to rule
12(b)(1), (2), or (6) is not a final order, the Court said it lacked
jurisdiction and must dismiss the appeal. They also concluded that
Headliners' contentions were not wholly without rational argument,
and declined to characterize Headliners' appeal as frivolous. APPEAL
DISMISSED.
Rehabilitation
Plan, Plan of the "LB1184 Treatment Team"
In this appellate
decision, the Nebraska Court of Appeals concluded that a juvenile
court did not err in rejecting the Nebraska Department of Health
and Human Services' recommendation to terminate jurisdiction and
in finding that the recommended rehabilitation plan of the "LB1184
Treatment Team" was in the children's best interests.
In
re Interest of Amoria M. et al., children under 18 years of age.
(Not
Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- [Juvenile
Cases:] 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 Jagger L.,
270 Neb. 828, 708 N.W.2d 802 (2006). When the evidence is in conflict,
however, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of the
facts over the other. Id.
Juvenile
Courts:
- [Purpose:]
Nebraska law states that the purpose of the Nebraska Juvenile Code,
Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 2004),
is to "assure the rights of all juveniles to care and protection
and a safe and stable living environment and to development of their
capacities for a healthy personality, physical well-being, and useful
citizenship and to protect the public interest." § 43-246(1).
The Nebraska Juvenile Code must be liberally construed to accomplish
its purpose of serving the best interests of the juveniles who fall
within it. In re Interest of R.A. and V.A., 225 Neb. 157,
403 N.W.2d 357 (1987), overruled on other grounds, State v. Jacob,
242 Neb. 176, 494 N.W.2d 109 (1993). A juvenile court has broad
discretion as to the disposition of those who fall within its jurisdiction.
Id.
- [Rehabilitative
Plan:] A juvenile court may, under proper procedures and when
warranted, order a rehabilitative plan with reasonable provisions
material to the plan's rehabilitative objective of correcting, eliminating,
or ameliorating the condition or situation on the basis of which
the juvenile court asserted jurisdiction. In re Interest of M.R.,
J.R., and N.R., 228 Neb. 47, 420 N.W.2d 924 (1988). (Materiality:)
"Materiality of a provision in a court-ordered rehabilitative
plan is determined by a cause-and-effect relationship: Does a provision
in the plan tend to correct, eliminate, or ameliorate the situation
or condition on which the adjudication has been obtained under the
Nebraska Juvenile Code? An affirmative answer to the preceding question
provides the materiality necessary in a rehabilitative plan for
a parent involved in proceedings within a juvenile court's jurisdiction.
. . ." Id. at 52, 420 N.W.2d at 927.
Date Filed
and Case No. : February 27, 2007. No. A-06-771.
Court Appealed
From: Juvenile Review Panel, Gerald E. Rouse, Graten D. Beavers,
and Kurt Rager, Judges, on appeal thereto from the Separate Juvenile
Court of Douglas County, Elizabeth G. Crnkovich, Judge.
Attorneys
for the Appeal: Milo Alexander for Nebraska Department of Health
and Human Services, appellant. No appearance for State of Nebraska,
R. Jane S. and Gary S.
Judges:
Irwin, Carlson, and Cassel, Judges. Irwin, Judge.
Authored
By:
Summary:
The Nebraska Department of Health and Human Services (DHHS)
appealed to the Nebraska Court of Appeals, the decision of the Juvenile
Review Panel affirming an order of a separate juvenile court finding
that it is in the best interests of the minor children of Gary S.
and R. Jane S. (Jane) to remain under the jurisdiction of the juvenile
court. In January 2006, DHHS recommended that the trial court terminate
jurisdiction by April. At that hearing, the trial court stated it
was "troubled," because although the children were returned
to the parental home 1 year prior, "even today there are concerns."
The court stated that it was "not about seeking perfection"
but that rushing a case when a family is "teetering" is
"practically [an] invitation to come back." The court
referred the matter to the "LB1184 Treatment Team" to
assess the situation. In March, the "LB1184 Treatment Team"
provided a report recommending, among other things, that the "Juvenile
Court maintain jurisdiction . . . until the family has demonstrated
stability for 6 months . . . ." In April 2006, DHHS recommended
that the trial court terminate jurisdiction. The trial court rejected
DHHS' recommendation, and in May, the court adopted the recommendations
of the "LB1184 Treatment Team," excluding the 6-month
minimal threshold for stability. DHHS appealed to a juvenile review
panel, and the review panel affirmed the trial court's order. This
appeal followed.
Did the trial
court err in failing to adopt DHHS' recommendation to terminate
jurisdiction? DHHS challenged the trial court's May 2006 order,
which failed to adopt DHHS' recommendation that terminating jurisdiction
was in the children's best interests. DHHS argued that the parents
need not demonstrate perfection and that the trial court exceeded
a statutory 1-year limit for court-imposed conditions on children
returned to the parental home. The Court found no merit to these
arguments.
* •Best
Interest of Child: The record in the instant case indicates
by a preponderance of the evidence that terminating jurisdiction
is not in the children's best interests, because the family has
failed to demonstrate stability. The record showed that the children
here were neglected because of the poverty of the parents. Quoting
In re Interest of D., 209 Neb. 529, 308 N.W.2d 729 (1981),
DHHS argued: "Courts cannot deprive a parent of the custody
of a child merely because the parent has limited resources or
financial problems . . ." The Court found no merit to this
argument and noted that DHHS' cited case concerned the termination
of parental rights, not the trial court's right to maintain jurisdiction
when a permanency goal is not yet reached. "The evidence
in the instant case indicates that the permanency goal has not
been met and that the family's lack of financial stability is
directly related to their inability to care for their home and
children" said the Court. Because Gary and Jane failed to
meet the permanency objective of maintaining steady employment
and housing, the Court found that terminating jurisdiction would
not be in the children's best interests. * •Duration of Court-Imposed Conditions: DHHS asserted
that the trial court's jurisdiction over the children exceeded
the statutory time limit under § 43-288, which places a maximum
duration of 1 year for conditions imposed upon children who are
permitted to remain in their home pursuant to § 43-284 or
§ 43-286. Because the trial court renewed the rehabilitation
plan in new orders issued approximately every 3 months, the Court
found that the court had not exceeded the maximum time duration
for imposing conditions. Because a juvenile court has the discretionary
power to prescribe a reasonable plan for parental rehabilitation
to correct the conditions underlying the adjudication that a child
is a juvenile within the Nebraska Juvenile Code and because the
rehabilitation plan has been renewed within the 1-year limit by
a new order, the Court found no error in the juvenile court's
maintaining jurisdiction over the children.
Whether the
trial court erred in adopting the recommended rehabilitation plan
of the "LB1184 Treatment Team?" DHHS challenged the
trial court's adoption of the recommendation of the "LB1184
Treatment Team." Because the Court found that the rehabilitation
plan is related to the family's needs and that the family has not
yet satisfied the permanency objective of family preservation, it
found no merit to DHHS' arguments. After reviewing the treatment
team's recommendation and the evidence presented at the permanency
review hearings, the Court found that the provisions of the rehabilitation
plan were material to the conditions giving rise to this case, because
they provide corrective conditions to the family's underlying problems.
"To the extent that DHHS provided some of these services at
a prior time, it is apparent that such assistance is still necessary
because the family has yet to maintain stability" they said.
While DHHS argued that the trial court erred in omitting the treatment
team's recommendation that the family maintain stability for over
6 months, alleging that the family had maintained stability for
over 6 months, the Court disagreed. "The evidence clearly indicates
that the family was not current on bills as of January 2006. As
such, because the Court found that the provisions in the recommendation
are materially related to the facts giving rise to this case and
will assist in correcting the underlying conditions, it found that
the trial court did not err in adopting the plan of the "LB1184
Treatment Team."
Conclusion:
The Nebraska Court of Appeals concluded that the trial court
did not err in rejecting DHHS' recommendation to terminate jurisdiction
and in finding that the recommended rehabilitation plan of the "LB1184
Treatment Team" was in the children's best interests. AFFIRMED.
