In re Interest of Breana M.

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In re Interest of Breana M.

Caselaw No.
18 Neb. App. 910
Filed on
Tuesday, April 5, 2011

SUMMARY: A Nebraska juvenile court has subject matter jurisdiction under the juvenile code over “any juvenile” lacking proper parental care by reason or fault of the parent regardless of where the child is residing at the time the petition is filed.

Breana, DOB 12/08, was removed from the custody of her mother on May 17, 2010, and placed with her maternal grandmother. Breana had been residing with her grandmother intermittently in Cass County since March 2009, but Kaylin, the mother, would remove the child whenever the grandmother reported Kaylin’s drug use to authorities. The May 17, 2010, removal was the result of a threat by Kaylin to remove Breana again. The petition was filed in Douglas County. At the Protective Custody Hearing, Kaylin and the father argued that the court lacked personal jurisdiction over Breana and that Douglas County was not the proper venue. On July 19, 2010, the juvenile court granted the motions to dismiss the case. The State appealed.

The Nebraska Court of Appeals reversed the juvenile court’s dismissal. The Court of Appeals first clarified the term “personal jurisdiction” to be “subject matter jurisdiction” in this case, which would grant the court the authority to hear certain actions, and not the authority to bind a particular person to a decision. Under the juvenile code, the juvenile court has far-reaching subject matter jurisdiction, namely under 43-247(3)(a) of any juvenile who lacks proper parental care by reason of fault or habits of the child’s parent, guardian or custodian. The Court of Appeals held that this broad subject matter jurisdiction is not limited by the child’s temporary residence in another county. As for venue, it was noted that proper venue is immaterial to whether a child falls within the meaning of 43-247(3)(a), and that 43-282 gives the court discretion after adjudication to transfer a case to a county where the child is living. The Court of Appeals therefore held that a juvenile court should not grant a motion to dismiss based on improper venue but should first hold an adjudication hearing, after which the matter of transferring the proceedings to another county would then be considered. The Court of Appeals finally noted that the Indian Child Welfare Act (ICWA) does not apply in the consideration of which court has jurisdiction because neither parent has filed a petition to transfer the case to tribal court.