In re Interest of Joshua M. et. al

Caselaw Number
4 Neb. App. 659
Filed On


SUMMARY: A juvenile court does not have jurisdiction to terminate parental rights during an appeal. Termination proceedings are not collateral and independent from initial proceedings in a 3a case. A second detention order entered after adjudication has been held is a final, appealable order.

Gloria F., DOB 5/5/85, Tabitha M., DOB 8/13/87, T.J., DOB 2/21/90, Amanda M., DOB 10/27/91, and Joshua M., DOB 9/6/93, are the children of Lona. Thomas is the father of the 4 youngest children. Lona was 13 when she delivered Gloria and at 15, moved in with Thomas and Barbara and delivered the 4 youngest children. Thomas also conceived 5 children with Barbara. Thomas was physically and verbally abusive and was sentenced to two consecutive terms of 12 years in prison on September 23, 1994, for first-degree sexual assault of a child, the children being Gloria and another child born to Barbara. The children (except Thomas who was not yet born) were removed from Lona on March 26, 1993, and were adjudicated on August 23, 1993. Several dispositional hearings were held. In an October 19, 1994, dispositional order, Lona was authorized to have T.J. and Amanda return to her home but was prohibited from any contact with Thomas. The children were again removed on December 6, 1994, after it was discovered that Lona was having contact with Thomas which included bringing the children to the prison. Joshua M., having recently been born was also removed on December 6, 2004. At a Protective Custody hearing on December 16, 1994, the court continued custody out of home. Lona appealed. Petitions to terminate the parental rights of Lona to all five children were also filed on December 6, 1994. During appeal, the juvenile court proceeded on the petitions for termination, and on June 28, 1995 terminated the parental rights of Lona as to all five children. Lona also appealed these orders.
The Nebraska Court of Appeals upheld the Protective Custody orders of December 16, 1994, and ordered the juvenile court to vacate the termination orders of June 28, 1995, for lack of jurisdiction. It first concluded that the detention orders of December 16, 1994, were final and appealable. Specifically as to the detention order of the older children, the Court of Appeals noted that the children had already been previously adjudicated, which precluded them from applying the law in In re Interest of R.G., 238 Neb. 405 (1991). However, it concluded that since the second detention order was in essence a dispositional order and was different from the prior dispositional order rather than a continuation, it was a final, appealable order.

The Court of Appeals also concluded that the juvenile court did not have jurisdiction after the appeal was perfected to order termination of parental rights because although Neb. Rev. Stat. section 43-295 authorizes the juvenile court to have continued jurisdiction to order a change in the custody or care of the child, this power does not extend to termination proceedings. The Court of Appeals also found that termination proceedings cannot be considered collateral and independent proceedings that are separate from detention and removal proceedings as the factual basis for both are inextricably intertwined. Finally, the Court of Appeals upheld the Protective Custody orders finding that Lona’s failure to comply with court orders and prohibited contact with Thomas shows an inability to protect her children.