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In re Interest of LeVanta S., a child

under 18 years of age.

State of Nebraska, appellee and cross-appellee, 

v. Patricia B., appellant, and Calvin S., 

appellee and cross-appellant.

In re Interest of LeRonn S., a child

under 18 years of age.

State of Nebraska, appellee and cross-appellee, 

v. Patricia B., appellant, and Calvin S., 

appellee and cross-appellant.

___ N.W.2d ___

Filed December 2, 2016. Nos. S-15-909, S-15-910.

1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a 

factual dispute presents a question of law.

2. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings. When the evidence is in conflict, 

however, an appellate court may give weight to the fact that the lower 

court observed the witnesses and accepted one version of the facts over 

the other.

3. Courts: Juvenile Courts: Jurisdiction: Appeal and Error. Appellate 

courts in Nebraska have jurisdiction to hear appeals from final orders 

issued by juvenile courts in the same manner as appeals from the district courts.

4. Final Orders: Appeal and Error. An order that affects a substantial 

right made in a special proceeding is a final order.

5. Juvenile Courts: Appeal and Error. Juvenile court proceedings are 

special proceedings for purposes of appeal.

6. Words and Phrases. A substantial right is an essential legal right, not a 

mere technical right.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/02/2016 08:08 AM CST
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7. Juvenile Courts: Parental Rights: Parent and Child: Time: Final 

Orders: Appeal and Error. When determining whether a juvenile court 

order affects a substantial right of a parent to raise his or her child, an 

appellate court considers the object of the order as well as the length of 

time over which the parent’s relationship with the child may reasonably 

be expected to be disturbed.

8. Juvenile Courts: Minors. Nebraska law requires the creation of permanency plans for every juvenile placed in out-of-home care and requires 

juvenile courts to hold a hearing on the plan.

9. Juvenile Courts: Judgments: Parental Rights: Adoption: Guardians 

and Conservators. The juvenile court’s order on a permanency plan 

must include whether the objective is for the juvenile to be returned to 

the parent, referred for a termination-of-parental-rights filing, placed for 

adoption, or referred for a guardianship.

10. Parental Rights. Nebraska law requires reasonable efforts to be made to 

reunify families after a juvenile is placed in out-of-home care.

11. Parental Rights: Adoption: Guardians and Conservators. Reasonable 

efforts toward reunification may be made concurrently with a plan for 

adoption or guardianship, but the objective of family preservation and 

reunification must take priority over the other objectives.

12. Guardians and Conservators: Minors. The first requirement for establishment of a permanent guardianship is that the juvenile be adjudicated 

under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015).

13. Parental Rights. An adjudication of a juvenile under Neb. Rev. Stat. 

§ 43-247(3)(a) (Supp. 2015) can be a basis for termination of parental 

rights if subsequent reasonable efforts to preserve and reunify the family 

have failed. But an adjudication under § 43-247(3)(c) is not a ground for 

termination under Neb. Rev. Stat. § 43-292 (Reissue 2016).

14. Guardians and Conservators: Minors. Pursuant to Nebraska’s permanent juvenile guardianship statute, Neb. Rev. Stat. § 43-1312.01 

(Reissue 2016), an adjudication under Neb. Rev. Stat. § 43-247(3)(a) 

(Supp. 2015) is a requirement for establishing a guardianship.

15. Juvenile Courts: Jurisdiction: Mental Health. The only basis for the 

court’s jurisdiction in a case under Neb. Rev. Stat. § 43-247(3)(c) (Supp. 

2015) is that the juvenile is mentally ill and dangerous.

16. Parental Rights: Due Process. The absence of an opportunity for parents to respond to allegations about their fitness to raise their children 

implicates their due process rights.

17. Due Process. The concept of due process embodies the notion of fundamental fairness and defies precise definition. But the central meaning of 

procedural due process is clear: Parties whose rights are to be affected 

are entitled to be heard.
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18. Parental Rights: Due Process: Appeal and Error. The absence of a 

formal opportunity to be heard distinguishes a case under Neb. Rev. 

Stat. § 43-247(3)(c) (Supp. 2015) from a case under § 43-247(3)(a) in an 

appellate court’s analysis of whether the change in permanency objective was a final order.

19. Statutes: Appeal and Error. Appellate courts will adhere to the plain 

meaning of a statute absent a statutory indication to the contrary.

20. Guardians and Conservators: Minors. Because Neb. Rev. Stat. 

§ 43-1312.01(1)(a) (Reissue 2016) requires that for the establishment 

of a guardianship, the child is a juvenile who has been adjudged to be 

under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015), a guardianship may 

not be established without such adjudication.

Appeals from the Separate Juvenile Court of Douglas 

County: Elizabeth Crnkovich, Judge. Reversed and remanded 

for further proceedings.

Regina T. Makaitis for appellant.

Karen C. Hicks, of Hicks Law, P.C., L.L.O., for appellee 

Calvin S.

Donald W. Kleine, Douglas County Attorney, and Jennifer 

C. Clark for appellee State of Nebraska.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Wright, J.

I. NATURE OF CASE

In 2013, the separate juvenile court of Douglas County adjudicated twin brothers LeVanta S. and LeRonn S. under Neb. 

Rev. Stat. § 43-247(3)(c) (Reissue 2008) as “mentally ill and 

dangerous.” Both brothers were eventually placed in out-ofhome care. In September 2015, the juvenile court entered an 

order changing the brothers’ permanency objective from family 

reunification to guardianship. The mother (appellant, Patricia 

B.) and the father (cross-appellant, Calvin S.) separately appeal 

from this order in each brother’s case. The appeals from the 

two cases have been consolidated.
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II. FACTS

1. Family Background

At a very young age, LeVanta and LeRonn were adopted 

by Patricia and Calvin, their parents. The twin brothers have 

developmental disabilities due to fetal alcohol syndrome. 

Both have IQ’s in the “Extremely Low Range” and meet the 

criteria for “Mild Mental Retardation.” They were 15 years 

old when their cases began in January 2013, and are now 18 

years old.

The parents were separated before January 2013 and have 

since divorced. After the parents’ separation, one brother lived 

with each parent. From the time the children were 5 years old, 

the parents have sought professional help in dealing with the 

brothers’ behaviors.

2. Petition and First Hearing

In January 2013, the brothers were brought before the 

juvenile court for criminal delinquency charges of trespass 

and truancy. These charges were dropped when it was determined that they were not mentally competent to be tried. The 

county attorney then filed petitions alleging the brothers were 

“mentally ill and dangerous” within § 43-247(3)(c). The State 

moved for temporary custody with the Department of Health 

and Human Services (DHHS), with placement to include the 

parental homes.

3. Adjudication and Disposition

An adjudication hearing was held April 3, 2013, and the 

brothers and the mother and father were present. Each brother 

had appointed counsel, but the parents were not represented 

by counsel. The family permanency specialist and the mother 

both testified. Examples of the brothers’ poor judgment, fighting, anger problems, and other violent behavior were offered. 

Testimony was also offered that LeRonn would at times refuse 

to take his medications. The court found by clear and convincing evidence that the brothers were within the definition of 
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§ 43-247(3)(c). Temporary custody was placed with DHHS. 

The parents did not appeal the adjudication.

A disposition hearing was held May 21, 2013, but the parents were not present and were not represented by counsel. 

At the beginning of the hearing, there was some discussion 

whether the parents had been informed of the hearing date and 

time. The court ordered that the brothers stay at home with 

their parents, but that applications for out-of-home placements 

should be made. The court ordered in-home developmental 

disability services to be provided, with both parents to participate. All visits by the parents were to be supervised, and 

they were to participate in therapy and complete a psychiatric evaluation.

The court found that reasonable efforts—including evaluations, family support, and case management—had been made 

to return each brother to the parents’ custody, but that it was 

in their best interests to remain in the temporary custody 

of DHHS.

4. Additional Hearings

The juvenile court continued to have additional review hearings. The family permanency objective was stated as “family 

preservation” or “reunification,” but applications for out-ofhome placements were to be made.

In July 2013, LeRonn threw a mailbox through the front 

window of his father’s house. He was moved from his father’s 

house to an “extended family home” for individuals with developmental disabilities. Later that month, the court appointed 

counsel to represent the parents.

In June 2014, when LeVanta’s behavior regressed, the court 

ordered that he be placed in out-of-home care. In July, he was 

placed in a group home. The court sustained an ex parte motion 

requiring supervision of all visits between the parents and the 

boys, because the mother reportedly took the brothers on a 

visit together, in violation of a court order, and the father and 

LeRonn had gotten into an argument.
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At a December 18, 2014, review hearing, the judge questioned whether an adjudication under § 43-247(3)(c) was the 

right procedure in this case or whether subsection (3)(a) was 

more appropriate. The court said:

Without a doubt, [these boys] have their own set of challenges. There is no question about that. That does not 

make them delinquent, and it does not make them mentally ill and dangerous.

They have a mother and a father who are good, kind 

people . . . who love these boys dearly. But I’m — I find 

at every hearing that what is at the heart of these challenges is an inability to parent these boys based on their 

unique needs.

No new petition was filed alleging the parents’ “inability to 

parent these boys based on their unique needs.”

Upon the recommendation of DHHS, the court ordered 

that LeVanta be placed in the same foster home as LeRonn so 

they could work on building their relationship and interacting 

appropriately without fighting. The orders following the hearing stated that the permanency objective was “reunification,” 

with temporary custody remaining with DHHS. The parents 

were ordered to “participate with the family support worker 

until successful discharge” in order to learn to better teach 

the brothers healthy coping skills and ways to interact with 

each other.

At another review hearing on March 19, 2015, it was 

reported that the brothers were doing well in their placements 

and in school. The court ordered the parents to participate in 

family support services to work on parenting the brothers and 

to participate in individual and family therapy.

Because a finding of a lack of reasonable efforts “can 

impact families by shutting off funding for services” and 

because many of the previous problems had been corrected, the 

court declined to find a lack of reasonable efforts on the part 

of DHHS. The court found reasonable efforts had been made 

by DHHS.
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5. Change of Permanency Objective

At the review hearing on September 10, 2015, DHHS recommended continuing to work on the permanency plan of 

reunification, while making concurrent permanency plans of 

a guardianship. The parents opposed the recommendation of a 

guardianship, and the mother’s request for a continuance and 

an evidentiary hearing on the issue was denied. The attorneys 

for the brothers requested the court to close the case based on 

the adjudication under § 43-247(3)(c), because the brothers 

were doing very well.

The court denied the requests to close the case and adopted 

the permanency objective of guardianship, stating:

So indeed, young man and your brother, too, you are 

doing superbly. I could not be more proud. And I wish 

that I could grant your request today. But it is not because 

of your behavior that I cannot.

At the same time, [the parents] — I think I’ve said this 

before — are loving people, are good people, are kind 

people, and they love their sons and their sons love them. 

But it has been clear at every hearing that they are unable 

to place themselves in a position of parenting these children. And that was clear even when early on the specific 

services to the kids were confusing.

I’m not letting [DHHS] off the hook. I disagree with 

— that someone has a mindset that the only solution is a 

guardianship. I believe the evidence supports that the possibility of reunification, given the almost three years that 

we have been before the Court, is not likely to happen in 

the minority of these children before their 19th birthday. 

And it is those combination of things in the evidence that 

leads me to conclude that we — a guardianship is the 

most appropriate permanency plan for these two young 

men. But I want to know for sure that they will stay in 

their present placement.

That is the order of the Court. We are adjourned. 

Thank you.
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The written order stated that the “the primary permanency objective is a guardianship.” It did not state that this 

permanency objective was concurrent with an objective of 

reunification.

The parents were ordered to continue in individual and 

family therapy. For the first time, the father was ordered to 

participate in urinalysis testing and to complete a chemical 

dependency evaluation. The mother was ordered to allow the 

family permanency specialist to conduct drop-in, walk-through 

inspections of her home in order to have visits there.

Both parents separately appealed from these orders.

III. ASSIGNMENTS OF ERROR

The mother and father raise the following issues: whether 

the juvenile court erred by issuing an order changing the permanency objective to guardianship when the juveniles had 

been adjudicated only under § 43-247(3)(c) and whether the 

juvenile court violated the parents’ constitutional right to due 

process. The mother claims the court erred in denying her 

request for an evidentiary hearing on the issue of changing the 

permanency objective to guardianship.

IV. STANDARD OF REVIEW

[1,2] A jurisdictional issue that does not involve a factual 

dispute presents a question of law.1 An appellate court reviews 

juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings. When the 

evidence is in conflict, however, an appellate court may give 

weight to the fact that the lower court observed the witnesses 

and accepted one version of the facts over the other.2

V. ANALYSIS

This case presents these issues: whether the order of the 

juvenile court changing the permanency objective for the 

1 In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015).

2 Id.
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brothers was a final, appealable order; whether the juvenile 

court exceeded its authority by changing the permanency objective to guardianship when there has been no adjudication under 

§ 43-247(3)(a) (Supp. 2015). The parents argue that the statute 

for juvenile guardianships requires an adjudication under subsection (3)(a) before a guardianship may be established. The 

State argues that the juvenile court has broad authority to adopt 

permanency plans for juveniles in both § 43-247(3)(a) and (c) 

cases under Neb. Rev. Stat. § 43-285 (Supp. 2015).

The last issue is whether the juvenile court’s order violated 

the parents’ due process rights. The parents argue that their 

rights were violated by the adoption of the permanency plan 

of guardianship because the only basis for the court’s jurisdiction was an adjudication that the brothers were “mentally ill 

and dangerous” under § 43-247(3)(c). In a subsection (3)(c) 

case, no allegation is made regarding the fitness of a parent 

to raise his or her child, nor does a parent have the opportunity to respond to the petition. The parents also assert that 

their due process rights were violated because they were not 

advised of their rights or given notice of the possible consequences of future dispositional orders, such as the establishment of a guardianship. The State claims that because the 

parents were present in the courtroom when the juveniles were 

advised of their rights, the parents were thereby also advised 

of their rights.

1. Jurisdiction

As a preliminary matter, we must determine whether we 

have jurisdiction over this appeal. The State has asserted that 

the orders from which the mother and father appeal are not 

final, appealable orders.

[3-6] Appellate courts in Nebraska have jurisdiction to 

hear appeals from final orders issued by juvenile courts in 

the same manner as appeals from the district courts.3 An 

order that “affect[s] a substantial right made in a special 

3 Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016).
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proceeding” is a final order.4 Juvenile court proceedings are 

“special proceedings” for purposes of appeal.5 The question 

is whether the order affects a substantial right.6 A substantial 

right is an essential legal right, not a mere technical right.7 We 

have explained:

Numerous factors determine whether an order affects 

a substantial right for purposes of interlocutory appeal. 

Broadly, these factors relate to the importance of the 

right and the importance of the effect on the right by the 

order at issue. It is not enough that the right itself be substantial; the effect of the order on that right must also be 

substantial. Whether the effect of an order is substantial 

depends on “‘whether it affects with finality the rights 

of the parties in the subject matter.’” It also depends on 

whether the right could otherwise effectively be vindicated. An order affects a substantial right when the right 

would be significantly undermined or irrevocably lost by 

postponing appellate review. Stated another way, an order 

affects a substantial right if it “‘affects the subject matter 

of the litigation, such as diminishing a claim or defense 

that was available to the appellant prior to the order from 

which he or she is appealing.’”8

[7] When determining whether a juvenile court order affects 

a substantial right of a parent to raise his or her child, we consider the object of the order as well as the length of time over 

which the parent’s relationship with the child may reasonably 

be expected to be disturbed.9

4 Neb. Rev. Stat. § 25-1902 (Reissue 2016).

5 In re Interest of Octavio B. et al., supra note 1, 290 Neb. at 596, 861 

N.W.2d at 422.

6 Id.

7 Id.

8 Deines v. Essex Corp., 293 Neb. 577, 581, 879 N.W.2d 30, 33-34 (2016) 

(emphasis supplied).

9 See In re Interest of Octavio B. et al., supra note 1.
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(a) Permanency Plans

[8-11] Nebraska law requires the creation of permanency 

plans for every juvenile placed in out-of-home care and 

requires juvenile courts to hold a hearing on the plan.10 The 

court’s order on a permanency plan must include whether 

the objective is for the juvenile to be returned to the parent, 

referred for a termination-of-parental-rights filing, placed for 

adoption, or referred for a guardianship.11 Nebraska law also 

requires “reasonable efforts” to be made to reunify families 

after a juvenile is placed in out-of-home care. Reasonable 

efforts toward reunification may be made concurrently with 

a plan for adoption or guardianship, but the objective of family preservation and reunification must take priority over the 

other objectives.12

[12] If the juvenile’s permanency objective does not include 

reunification or adoption, a permanent guardianship may be 

established in certain circumstances.13 The first requirement 

for establishment of a permanent guardianship is that the 

juvenile be adjudicated under § 43-247(3)(a).14 Guardianship 

gives the guardian all of the powers, rights, and duties that 

a child’s parents would have, but does not terminate a parent’s rights.15

10 Neb. Rev. Stat. §§ 43-1311 (Reissue 2016) and 43-1312 (Cum. Supp. 

2014). See, also, generally, Adoption and Safe Families Act of 1997, Pub. 

L. No. 105-89, 111 Stat. 2115 (codified at 42 U.S.C. §§ 673b, 678, 679b 

(2012), requiring states to adopt permanency plans in their juvenile laws in 

order to maintain federal funding); In re Interest of DeWayne G. & Devon 

G., 263 Neb. 43, 638 N.W.2d 510 (2002) (discussing permanency plans 

and reasonable efforts for family reunification); In re Interest of Sarah K., 

258 Neb. 52, 601 N.W.2d 780 (1999) (discussing adoption of permanency 

plans in Nebraska law).

11 § 43-1312(3).

12 Neb. Rev. Stat. § 43-283.01(6) (Reissue 2016).

13 Neb. Rev. Stat. § 43-1312.01 (Reissue 2016).

14 § 43-1312.01(1)(a).

15 § 43-1312.01(2) and (7).
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In the cases In re Interest of Sarah K.,

16 In re Interest of 

Tayla R.,

17 In re Interest of Diana M. et al.,18 and In re Interest 

of Octavio B. et al.,

19 this court and the Nebraska Court of 

Appeals have considered whether an order in a juvenile case, 

which continues prior dispositional orders but changes the 

permanency objective from family reunification to another 

objective, is a final, appealable order. In these cases, the 

permanency objectives were changed from family reunification to adoption, guardianship, or foster care transitioning to 

independent living. Read together, these cases provide that 

such an order is not a final, appealable order unless the parent’s ability to achieve rehabilitation and family reunification 

has been clearly eliminated. However, in all of these cases, the 

juveniles had been adjudicated under § 43-247(3)(a). As we 

will discuss, the order in this case affects a substantial right of 

the parents in a way that a similar order in a subsection (3)(a) 

case would not.

(b) § 43-247(3)(c): “mentally ill 

and dangerous”

In the cases at bar, the brothers were both adjudicated under 

§ 43-247(3)(c) as “mentally ill and dangerous.” The nature of 

the adjudication bringing the brothers under the jurisdiction 

of the juvenile court is important to understanding whether 

the order affected a substantial right of the parents. The order 

implicates the parents’ due process rights.

Subsection (3)(c) of § 43-247 gives the juvenile court jurisdiction over any juvenile “who is mentally ill and dangerous as 

defined in section 71-908.” Neb. Rev. Stat. § 71-908 (Reissue 

2009) is a part of the Nebraska Mental Health Commitment 

Act and provides:

16 In re Interest of Sarah K., supra note 10.

17 In re Interest of Tayla R., 17 Neb. App. 595, 767 N.W.2d 127 (2009).

18 In re Interest of Diana M. et al., 20 Neb. App. 472, 825 N.W.2d 811 

(2013).

19 In re Interest of Octavio B. et al., supra note 1.
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Mentally ill and dangerous person means a person who is mentally ill or substance dependent and 

because of such mental illness or substance dependence 

presents:

(1) A substantial risk of serious harm to another person 

or persons within the near future as manifested by evidence of recent violent acts or threats of violence or by 

placing others in reasonable fear of such harm; or

(2) A substantial risk of serious harm to himself or 

herself within the near future as manifested by evidence 

of recent attempts at, or threats of, suicide or serious 

bodily harm or evidence of inability to provide for his or 

her basic human needs, including food, clothing, shelter, 

essential medical care, or personal safety.

Subsection (3)(c) is substantially different from subsection 

(3)(a), which, generally speaking, applies to situations in which 

a juvenile lacks proper parental care, support, or supervision.20

Because a subsection (3)(a) adjudication addresses the issue 

of parental fitness, significant legal consequences can flow 

from such an adjudication and greater procedural protections 

are required.

[13,14] In a case under § 43-247(3)(a), a parent has the 

opportunity to deny a petition’s allegations.21 This is a key 

distinction from a subsection (3)(c) petition, in which the 

juvenile responds but to which parents have no statutory right 

to respond.22 Moreover, an adjudication of a juvenile under 

20 § 43-247(3)(a).

21 See Neb. Rev. Stat. § 43-279.01 (Reissue 2016). See, also, In re Interest 

of Trenton W. et al., 22 Neb. App. 976, 983, 865 N.W.2d 804, 811 (2015) 

(“factual allegations of a petition seeking to adjudicate a child must give a 

parent notice of the bases for seeking to prove that the child is within the 

meaning of § 43-247(3)(a)”).

22 See § 43-279.01 (providing parents with right to respond to allegations 

in § 43-247(3)(a) petition) and Neb. Rev. Stat. § 43-279 (Reissue 2008) 

(providing juveniles with right to respond to allegations under § 43-247(1), 

(2), (3)(b), or (4)).
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subsection (3)(a) can be a basis for termination of parental 

rights if subsequent reasonable efforts to preserve and reunify 

the family have failed.23 But an adjudication under subsection (3)(c) is not a ground for termination under § 43-292. 

Pursuant to Nebraska’s permanent juvenile guardianship statute, § 43-1312.01, an adjudication under subsection (3)(a) is a 

requirement for establishing a guardianship.

Under subsection (3)(a) of § 43-247, a parent has both the 

opportunity and the incentive to contest and appeal an adjudication, which the parent does not have when the child is adjudicated under subsection (3)(c). And subsequent review orders 

in a subsection (3)(a) case do not typically affect a substantial 

right for purposes of appeal, because the parent has been given 

the full and fair opportunity to respond to the allegations at 

the adjudication stage. The parent has been given notice of 

the possible consequences of future dispositional orders and 

any applicable rights. Furthermore, as compared to subsection (3)(c), such changes in permanency objectives are within 

the power of the court under a subsection (3)(a) adjudication. 

Thus, the order changing the permanency plan in a subsection 

(3)(a) case does not necessarily affect a substantial right of the 

parent when it continues prior orders directed at family preservation and reunification or remedying the reasons that led to 

the adjudication.

[15,16] But in an adjudication under § 43-247(3)(c), no 

determination is made of a parent’s ability to care for his or 

her child. Nor does the parent have the opportunity to respond 

to the allegations in the subsection (3)(c) petition, because the 

allegations relate only to the juvenile and not to the parent. The 

only basis for the court’s jurisdiction in a case under subsection 

(3)(c) is that the juvenile is “mentally ill and dangerous.” The 

absence of an opportunity for parents to respond to allegations 

about their fitness to raise their children implicates their due 

process rights.

23 Neb. Rev. Stat. § 43-292(6) (Reissue 2016).
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[17] The constitutional right to due process protects the 

parent-child relationship.24 The concept of due process embodies the notion of fundamental fairness and defies precise definition.25 But “‘the central meaning of procedural due process [is] 

clear: “Parties whose rights are to be affected are entitled to be 

heard . . . .”’”26 Thus we have said:

When a person has a right to be heard, procedural due 

process includes notice to the person whose right is 

affected by a proceeding, that is, timely notice reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable 

opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and crossexamine adverse witnesses and present evidence on the 

charge or accusation; representation by counsel, when 

such representation is required by constitution or statute; 

and a hearing before an impartial decisionmaker.27

Because this was a case under § 43-247(3)(c), based upon 

the adjudication of the juveniles as “mentally ill and dangerous,” there has been no adjudication under subsection (3)(a) of 

the parents’ ability or fitness to raise their children.

[18] The absence of a formal opportunity to be heard distinguishes this case from cases under § 43-247(3)(a) in our 

analysis of whether the change in permanency objective was a 

final order. It is against this backdrop that the juvenile court’s 

orders changing the brothers’ permanency objective to guardianship uniquely affects the parents’ substantial right to raise 

their children.

24 In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992); In re Interest 

of Davonest D. et al., 19 Neb. App. 543, 809 N.W.2d 819 (2012).

25 In re Interest of L.V., supra note 24.

26 Id. at 413, 482 N.W.2d at 257, quoting Fuentes v. Shevin, 407 U.S. 67, 92 

S. Ct. 1983, 32 L. Ed. 2d 556 (1972).

27 In re Interest of L.V., supra note 24, 240 Neb. at 413-14, 482 N.W.2d at 

257.
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We conclude the juvenile court’s order affected a substantial right of the parents, because they were afforded no formal process to determine their ability to raise their children. 

Because the order affected a substantial right, it is a final, 

appealable order.

2. Change of Permanency Plan

to Guardianship

Having concluded that we have jurisdiction, we turn to 

the merits of this appeal. The parents appeal the order issued 

September 14, 2015, which changed the permanency objectives 

for both brothers from family reunification to guardianship.

The parents argue that Nebraska’s statute governing permanent guardianships for juveniles, § 43-1312.01, requires 

an adjudication under subsection (3)(a) of § 43-247 as a prerequisite for the establishment of a guardianship. The State 

argues that § 43-285 gives the court the power to order DHHS 

to prepare a permanency plan for juveniles that have been 

adjudicated under either subsection (3)(a) or subsection (3)(c) 

of § 43-247.

In 2014, the Nebraska Legislature passed L.B. 908 to 

“provide for the appointment of a guardian for a child who is 

adjudicated under subdivision (3)(a) of 43-247,” among other 

reasons.28 The guardianship provision of L.B. 908 was codified at § 43-1312.01. The statute provides that if “the permanency plan for a child . . . does not recommend return of the 

child to his or her parent or that the child be placed for adoption, the juvenile court may place the child in a guardianship” 

if certain requirements are met.29 The first requirement is that 

“[t]he child is a juvenile who has been adjudged to be under 

subdivision (3)(a) of section 43-247.”30

28 Committee Statement, L.B. 908, Judiciary Committee, 103d Leg., 2d Sess. 

(Jan. 29, 2014).

29 § 43-1312.01(1).

30 § 43-1312.01(1)(a).
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[19] The parents correctly assert that the requirements listed 

in § 43-1312.01(1) form a conjunctive list. Elements (a) 

through (d) in subsection (1) are connected with the word 

“and.” When connecting a list of elements, “and” connotes 

a conjunctive list while “or” connotes a disjunctive list.31

We have said that the plain meaning of the words “and” and 

“or,” when used to connect elements in a list, may be disregarded when such a reading would lead to an absurd result in 

conflict with clear legislative intent.32 And we will adhere to 

the plain meaning of a statute absent a statutory indication to 

the contrary.33

[20] Moreover, the content of the statute supports the 

conclusion that the elements form a conjunctive list, each of 

which must be met before a guardianship may be established. 

For example, subsection (1)(d)(i) of § 43-1312.01 requires 

that the guardian be “suitable and able to provide a safe and 

permanent home for the child.” It would be unreasonable to 

read this as a disjunctive list, so that this requirement need 

31 See, Grammer v. Lucking, 292 Neb. 475, 479, 873 N.W.2d 387, 390 (2016) 

(“[t]he word ‘or,’ when used properly, is disjunctive”); Zach v. Eacker, 271 

Neb. 868, 872, 716 N.W.2d 437, 441 (2006) (referring to “the conjunctive 

connector ‘and’”); DG Enterprises, LLC-Will Tax, LLC v. Cornelius, 2015 

IL 118975, ¶ 31, 43 N.E.3d 1014, 1021, 398 Ill. Dec. 104, 112 (2015) 

(“generally the use of a conjunctive such as ‘and’ indicates that the 

legislature intended that all of the listed requirements be met”); Sargent v. 

Shaffer, 467 S.W.3d 198, 207 (Ky. 2015) (“courts apply the conjunction, 

‘and,’ as written by the legislature unless that construction would clearly 

thwart the intent of the legislature or produce an absurd result”); Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 

116-25 (2012) (discussing conjunctive and disjunctive lists); 1A Norman J. 

Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 21:14 

(7th ed. 2009) (discussing “[c]onjunctive and disjunctive words”).

32 See, State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005); Ledwith v. 

Bankers Life Ins. Co., 156 Neb. 107, 54 N.W.2d 409 (1952); Carlsen 

v. State, 127 Neb. 11, 254 N.W. 744 (1934); State, ex rel. Spillman, v. 

Brictson Mfg. Co., 114 Neb. 341, 207 N.W. 664 (1926).

33 See, e.g., Shurigar v. Nebraska State Patrol, 293 Neb. 606, 879 N.W.2d 25 

(2016).
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not be met if any of the other requirements in subsections 

(1)(a) through (d) were met. Both the plain language of the 

statute and common sense require us to read § 43-1312.01(1) 

as a conjunctive list. Because § 43-1312.01(1)(a) requires that 

for the establishment of a guardianship, “[t]he child is a juvenile who has been adjudged to be under subdivision (3)(a) of 

section 43-247,” a guardianship may not be established without such adjudication.

The State argues the court had the authority to change 

the permanency objective to guardianship under § 43-285. 

Subsection (2)(a) of that statute states in part:

Following an adjudication hearing at which a juvenile is 

adjudged to be under subdivision (3)(a) or (c) of section 

43-247, the court may order the department to prepare 

and file with the court a proposed plan for the care, placement, services, and permanency which are to be provided 

to such juvenile and his or her family.34

This statute gives a juvenile court the authority to order DHHS 

to prepare a plan for the care of juveniles in its custody, including a permanency objective and the authority to adopt such 

an objective. The question is whether the juvenile court had 

the authority to adopt a permanency objective of guardianship in this case under § 43-247(3)(c) without a subsection 

(3)(a) adjudication. We hold that it did not. If a guardianship 

may not be lawfully established without a subsection (3)(a) 

adjudication, then neither may a permanency plan of guardianship be adopted without such adjudication. The juvenile court 

exceeded its authority in its order of September 14, 2015, by 

adopting the permanency plan of guardianship.

3. Due Process

The parents also assert that the juvenile court’s order changing the permanency objective to guardianship violated their 

constitutional right to due process. They argue that because 

34 § 43-285(2)(a) (emphasis supplied).
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the case was filed as a case under § 43-247(3)(c), in which no 

allegations were made against the parents, and because they 

were never advised of their rights or the possible consequences 

of the disposition orders of the court, including that a guardianship may be established, their constitutional right to due 

process was violated. The mother also asserts that the juvenile 

court’s denial of her request for an evidentiary hearing on the 

issue of adopting the permanency plan of guardianship violated 

her due process rights. We have discussed the parents’ due 

process rights in the context of our final order analysis in this 

case. Because we reverse the juvenile court’s order on the basis 

that a permanency plan of guardianship may not be adopted 

without a subsection (3)(a) adjudication, we need not reach this 

assignment of error on the merits.

VI. CONCLUSION

The juvenile court’s order adopting the permanency objective of guardianship was a final, appealable order, because it 

affected a substantial right of the parents in a special proceeding. The parents’ substantial right to raise their children was 

affected, because no determinations were made about their 

fitness and ability to care for their children in this case under 

§ 43-247(3)(c). They were not given the opportunity to formally respond to the court’s opinion that “they are unable to 

place themselves in a position of parenting these children.” 

The juvenile court exceeded its authority in adopting a permanency objective of guardianship in a case in which there 

has been no adjudication under § 43-247(3)(a). We reverse the 

order of September 14, 2015, and remand the cause for further proceedings.

 Reversed and remanded for

further proceedings.