In re Interest of Thomas M.

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In re Interest of Thomas M.

Caselaw No.
282 Neb. 316
Filed on
Friday, September 16, 2011

SUMMARY: A juvenile court has the authority to hold DHHS in contempt for failure to comply with an order but must provide DHHS with reasonable notice and an opportunity to be heard.

Thomas was adjudicated in April 2010 under N.R.S. 43-247 (1), (2), and (3)(b), for committing acts that would be a felony or misdemeanor and for being uncontrollable by his parents. In May 2010, Thomas was adjudicated mentally ill and dangerous under N.R.S. 43-247(3)(c), and the court ordered placement at a youth detention center in Gering. Dispositional hearings were held on July 8, 2010, and July 20, 2010, where the court ordered counseling and a list of appropriate placements that included such counseling. The court also issued an order on July 21, 2010, stating that if no appropriate, available placement was presented to the court at the next hearing that DHHS would be held in contempt and pay $400 per day until Thomas was placed. The court on July 27th found in its order that Thomas had not been put in an appropriate placement based on DHHS’ failure to comply with the July 8th order and that “pursuant to this court’s contempt order of July 20, 2010, [D]HHS shall pay into this Court $400.00 per day until it provides written verification that THOMAS…is receiving counseling as ordered.” After another placement hearing, the court ordered on August 9th that Thomas be placed at Colorado Boys Ranch and ordered DHHS to pay all billings within 20 days of receipt and that if not paid “[D]HHS shall be in contempt of court and pay $500.00 per day into the court…” DHHS appealed the July 27 and August 9 orders claiming sovereign immunity, right to contract without interference and failure to provide proper notice and an opportunity to be heard on the issue of contempt.

The Nebraska Supreme Court dismissed the appeal. It held that the August 9 order was not final and appealable because the order does not “hinder or affect DHHS’ right to contract or select contractors” and therefore did not affect a substantial right of DHHS. As to the July 27 order, the Supreme Court found the issue to be moot because DHHS purged itself of contempt immediately by finding Thomas a placement, but decided consider the issue under the public interest exception. In its analysis, the Supreme Court first noted In re Interest of Krystal P. et al, 251 Neb. 320, 557 N.W.2d 26 (1996), where it affirmed a finding of contempt and award of attorneys fees against DHHS for failure to abide by a visitation order, and stated “[i]mplicit in our decision in In re Interest of Krystal P. et al., was the recognition of the juvenile court’s authority to issue the visitation and contempt orders and to hold DHHS, which had appeared in the case, in contempt.” Supra at page 7. The Supreme Court held that the State chose to waive sovereign immunity to the extent encompassed by the juvenile code since the State, through the county attorney, initiated this action, and that this waiver extended to DHHS. The Supreme Court then held that juvenile courts have contempt power under N.R.S. 25-2121 and broad authority to make orders that are in the juvenile’s best interests under N.R.S. 43-285(2), and that therefore the juvenile court had the authority to find DHHS in contempt. However, it found that the order did not contain specifics of what an appropriate placement would be and furthermore that the court failed to issue a show cause order alerting DHHS to what would constitute a finding of contempt. The Supreme Court also held that the July 26th hearing lacked a meaningful opportunity for DHHS to submit evidence negating a contempt finding. Finding these elements necessary prior to a finding of contempt, the Supreme Court held that the July 26 process was deficient.