In re Interest Mekhi S.,

Caselaw Number
309 Neb. 529
Filed On


The State appealed juvenile court order dismissing a supplemental petition filed after the court terminated a guardianship over which the court had expressly retained jurisdiction.

In this case the State argued that Neb. Rev. Stat. § 43-247(8) (Reissue 2016) required a second adjudication. Both the juvenile court and the Supreme Court disagreed. The Supreme Court also held that because the State’s substantial rights were not substantially affected by the juvenile court’s dismissal of its supplemental petition, the Supreme Court lacked jurisdiction and dismissed the appeal.

In September 2016, the State filed a petition (original petition) in the separate juvenile court of Douglas County, alleging that MyJhae J. and Zaniya S., and two siblings, came within the meaning of § 43-247(3)(a). All of the children were adjudicated on that basis, and they were placed into the custody of the Nebraska Department of Health and Human Services (DHHS) for appropriate care, services, and placement. The court ordered a permanency objective of legal guardianship for MyJhae and Zaniya, with a concurrent plan of reunification, and it ordered a permanency objective of reunification for their two siblings, with concurrent plans of adoption or guardianship. In June 2017, pursuant to DHHS’ motion, the court appointed a guardian for MyJhae and Zaniya. The guardianship order relieved DHHS of further responsibility for the children’s care, custody, and control. As DHHS’ motion had requested, the court’s order retained jurisdiction over them in connection with the guardianship. Accordingly, the court conducted regular guardianship review hearings for MyJhae and Zaniya under this same juvenile docket and entered orders finding that the permanency objective of guardianship continued to be in their best interests.  Subsequently the guardianship was terminated and the children were returned to DHHS custody. 

The day after the juvenile court terminated the guardianship the State filed a second supplemental petition seeking to place the children under the juvenile’s court jurisdiction under § 43-247(8). The State also set this for adjudication.  The GAL filed a motion to dismiss the second petition, which also included an objection to the State’s motion to set the matter for adjudication, alleging that the court lacked subject matter jurisdiction to hear the State’s second petition based upon the principle of res judicata.  The hearing consisted of the legal parties arguing their respective views on the issue. The State explained that it believed that § 43-247(8) required it to file a second petition to reestablish the court’s jurisdiction, so that the court could “move forward in placing the children in a protective placement [with DHHS].” The GAL disputed the State’s interpretation of § 43-247(8), arguing that the court retained jurisdiction over the case from the original petition. It should be noted that counsel for the mother, counsel for an intervening father, and counsel for DHHS all concurred on the record that dismissal of the second petition appeared appropriate under the circumstances.

On the record, the court agreed with the GAL, pointing out that the legislative history of § 43-247(8) showed that it “speak[s] to a factual pattern different from what we have here today” and explained that the children were already in a protective placement with DHHS. The court stated that § 43-247(8) was enacted so that a juvenile court could reestablish jurisdiction over a juvenile after its jurisdiction had been terminated, but that in this case, it had retained jurisdiction over the children after the guardianship was terminated.

Once again the Supreme Court shows us that they are not kidding around about how to write a brief.  The Supremes pointed out that the State’s brief did not contain a separate section assigning error to the juvenile court and that while the brief’s argument section does contain at least one heading purporting to assign error they (Supremes) have emphasized that such headings do not satisfy the requirements of our appellate rules.  The Supremes went to state that this affects the standard of review.

 Where the assignments of error consist of headings or subparts of arguments and are not within a designated assignments of error section, an appellate court may proceed as though the party failed to file a brief, providing no review at all, or, alternatively, may examine the proceedings for plain error.  A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.

The Supremes laid out the analysis of first deciding whether or not they even had jurisdiction of this case.  This lead to a discussion of what is a final order, substantial rights being affected and the State’s interpretation of § 43-247(8). 

While the Court agreed that the State had a substantial right in the proceedings, they disagreed with the State’s interpretation of § 43-247(8).  The Court stated that § 43-247(8) was enacted by the Nebraska Legislature to provide an independent basis to reestablish a juvenile court’s jurisdiction over a juvenile where the juvenile court’s jurisdiction had ended.  Basically the children had already been adjudicated, no need to do it again.  The Court also points us to Neb. Rev. Stat. § 43-285 (Cum. Supp. 2020), another statute that expressly preserves the juvenile court’s jurisdiction during a guardianship. 

The Court shared a bit of history of the legislative intent behind the statutes mentioned: mainly that when a minor is adjudged to be within the jurisdiction of the juvenile court, a guardianship appointment must be made pursuant to the juvenile code.  The Court further clarified that a county court’s jurisdiction will yield to the juvenile court’s exclusive jurisdiction over a guardianship proceeding once a minor is adjudged to be within its jurisdiction.

The Court also mentions that Section 43-1312.01(3) requires that where a juvenile court places a child in a guardianship with an individual, the court shall retain jurisdiction over the child for modification or termination of the guardianship order. Therefore in this case, when the juvenile court appointed the guardian, it expressly retained jurisdiction and did not terminate the proceedings. The juvenile court’s dismissal of the second petition had no effect on the State’s ability to continue to assert its rights under its original petition. The juvenile court had always retained and had never lost jurisdiction of the children

The State’s substantial rights in the proceedings were not substantially affected by the court’s dismissal of the second petition. Accordingly, the Supremes found that they lacked appellate jurisdiction and dismissed the case.