SUMMARY: A denial to allow in-chambers testimony from the child is not a final, appealable order.
Marcella B. and Juan S. were removed from the mother on January 26, 2009, on allegations of inappropriate physical contact and failure to provide appropriate care, support and/or supervision. On March 3, 2009, the guardian ad litem filed a motion to allow Marcella’s testimony to be heard in chambers at the adjudication hearing. A hearing was held on the matter wherein a therapist who evaluated Marcella testified that Marcella would be harmed by testifying in court. On April 3, 2009, the court overruled the guardian ad litem’s motion. The guardian ad litem appealed.
The Nebraska Court of Appeals dismissed the appeal for lack of jurisdiction. It held that the April 3rd order was not a final order for purposes of appeal because it did not affect a substantial right. Specifically, the Court of Appeals noted that a substantial right is an essential legal right and that typically it finds substantial rights in juvenile proceedings when relating to parent’s rights. The Court of Appeals concluded that Marcella has no constitutional right to testify in juvenile proceedings and therefore has no substantial right affected. It also concluded that the procedures in place, that is, to hold a hearing on the motion for in-chambers testimony, are proper safeguards to protect the child’s best interests. Finally, the Court of Appeals rejected the argument that the order was reviewable under the collateral order doctrine as the issue is not separate from the merits of the action and is reviewable on appeal, or that there are independent grounds to allow the appeal under Neb. Rev. Stat. section 43-246 which requires that Marcella be afforded care and protection.