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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

In re Interest of Becka P. et al., children

under 18 years of age.

State of Nebraska, appellee, v. Robert P. 

and Veronica M., appellants.

___ N.W.2d ___

Filed April 7, 2017. Nos. S-16-646 through S-16-648.

1. Juvenile Courts: Jurisdiction. An appellate court reviews juvenile 

cases de novo on the record and reaches its conclusions independently 

of the juvenile court’s findings.

2. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

3. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, 

as in any other appeal, before reaching the legal issues presented for 

review, it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it.

4. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 

(Reissue 2016), the three types of final orders which may be reviewed 

on appeal are (1) an order which affects a substantial right and which 

determines the action and prevents a judgment, (2) an order affecting 

a substantial right made during a special proceeding, and (3) an order 

affecting a substantial right made on summary application in an action 

after judgment is rendered.

5. Juvenile Courts: Final Orders: Appeal and Error. A proceeding before a juvenile court is a “special proceeding” for appellate 

purposes.

6. Final Orders: Words and Phrases. A substantial right is an essential 

legal right, not a mere technical right.

7. Juvenile Courts: Parental Rights: Final Orders: Time. Whether a 

substantial right of a parent has been affected by an order in juvenile 

court litigation is dependent upon both the object of the order and the 

Nebraska Supreme Court Online Library

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

06/16/2017 09:13 AM CDT
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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

length of time over which the parent’s relationship with the juvenile may 

reasonably be expected to be disturbed.

8. Constitutional Law: Parental Rights. Parents have a fundamental liberty interest in directing the education of their children.

9. Parental Rights: Final Orders: Time: Appeal and Error. Orders 

which temporarily suspend a parent’s custody, visitation, or education 

rights for a brief period of time do not affect a substantial right and are 

therefore not appealable.

10. Parental Rights: Final Orders: Time. An order appointing an educational surrogate which has no limitation on its duration or scope is not 

a temporary order, but, rather, one which affects the parents’ substantial 

right to direct the education of their child.

11. Jurisdiction: Appeal and Error. Generally, once an appeal has been 

perfected to an appellate court, the trial court is divested of its jurisdiction to hear a case involving the same matter between the same parties; 

however, there is statutory authority allowing the juvenile court to retain 

or continue jurisdiction while appeals are pending.

12. Juvenile Courts: Jurisdiction: Parental Rights: Appeal and Error. 

Although a juvenile court retains jurisdiction over a juvenile while an 

appeal is pending, such continuing jurisdiction is not without limits; 

for example, the continuing jurisdiction of a juvenile court pending an 

appeal does not include the power to terminate parental rights.

13. Juvenile Courts: Jurisdiction: Final Orders: Appeal and Error. 

Pending an appeal from an adjudication, the juvenile court does not have 

the power to enter a permanent dispositional order.

14. Juvenile Courts: Jurisdiction: Appeal and Error. The extent of the 

juvenile court’s jurisdiction over a juvenile while an appeal is pending 

must be determined by the facts of each case.

15. ____: ____: ____. A juvenile court has continuing jurisdiction to issue 

and rule upon an order to show cause seeking enforcement of a previous 

order while the order of adjudication is pending on appeal.

16. Juvenile Courts: Contempt. Juvenile courts, whether separate juvenile 

courts or county courts sitting as juvenile courts, are courts of record 

with the statutory authority to punish contemptuous conduct.

Appeals from the County Court for Garden County: Randin

Roland, Judge. Affirmed.

Michael R. Snyder, of Snyder & Hilliard, P.C., L.L.O., for 

appellants.

Philip E. Pierce, Garden County Attorney, for appellee.
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296 Nebraska Reports

IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

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

Kelch, and Funke, JJ.

Stacy, J.

Robert P. and Veronica M. appeal from orders of the county 

court for Garden County, sitting as a juvenile court, appointing 

an “educational surrogate” after Robert and Veronica refused 

to complete consent forms necessary to authorize speech and 

language and early childhood development assessments previously ordered by the court. We affirm.

FACTS

Robert and Veronica are the parents of Becka P.; Robert 

P., Jr. (Robert Jr.); and Thomas P. In December 2015, the 

State filed juvenile petitions, alleging the children—who were 

ages 4, 2, and 1, respectively—came within the meaning of 

Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015) due to the faults 

and habits of their parents. The cases were consolidated for 

trial, and the juvenile court entered orders finding the allegations of the petitions were true as to all three children. The 

orders of adjudication placed custody of the children with the 

Nebraska Department of Health and Human Services (DHHS) 

and, among other things, ordered a “language and speech 

assessment” for Becka and an “early childhood development 

assessment” for Robert Jr. and Thomas. All assessments were 

to be conducted on the children by an “Educational Services 

Unit” (ESU).

The parents appealed the adjudication orders in all three 

cases. The appeals were consolidated, and on October 19, 2016, 

the Nebraska Court of Appeals affirmed the adjudications in 

an unpublished memorandum opinion in cases Nos. A-16-351 

through A-16-353. The mandate issued November 23.

While the parents’ appeals were pending before the Court 

of Appeals, the county attorney charged with enforcing court 

orders filed an “Affidavit and Application for Order to Show 

Cause” in the juvenile court. This application asked that the 

parents and DHHS be ordered to appear and show cause why 
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IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

they should not be held in contempt for failing to comply with 

the assessments previously ordered by the court. The record 

indicates the court issued an order to show cause in each of 

the three cases and consolidated the matters for purposes of 

the hearing.

A show cause hearing was held in May 2016. Evidence 

introduced by the State showed the parents had signed the 

informed consent forms needed by the ESU to proceed with 

the assessments, but had added language indicating their signatures were not voluntary, and had refused to consent to the 

release of information between the ESU and the programs it 

uses to conduct the evaluations. As such, the ESU did not consider the consent forms sufficient to permit the assessments to 

be performed and the evaluations to be completed. There was 

evidence that DHHS had not signed the consent forms, but that 

pertinent regulations precluded DHHS from signing such consents for children who are wards of the State.

After hearing the evidence, the court declined to make any 

finding of contempt and instead decided to appoint an “educational surrogate” to authorize the necessary consents. The following colloquy took place on the record:

THE COURT: . . . I’m going to appoint [an] educational surrogate for all three children. There are no limitations on that whatsoever . . . .

. . . .

[Parents’ counsel]: — I assume before you appoint . . . 

a surrogate, you’ll give a short time for [the parents] to 

sign [the] documents?

THE COURT: Okay. No. We’re done. She’s a surrogate. . . .

[Parents’ counsel]: Okay.

THE COURT: Because I’m not going to come back 

here when they refuse to do something in the future.

. . . .

. . . I’m not going to find anyone in contempt. I don’t 

think it’s necessary.
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Nebraska Supreme Court Advance Sheets

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IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

. . . .

. . . I’m going to appoint [an attorney] as the surrogate 

to have educational rights for all three children.

As I understand from the testimony presented today, 

that will allow the evaluations to go through. . . .

I believe the adjudications are up on appeal. I think we 

have a status hearing set just to monitor how the appeal 

is progressing.

. . . .

. . . We’ll schedule it for August 4th at 2:00 p.m. And 

if we’re still waiting for an appellate decision at that time, 

we’ll certainly entertain a motion to continue that out 

probably for another month or so to monitor the ruling.

All prior orders not in conflict are continued. Court’s 

adjourned.

After the show cause hearing, the court entered an order in 

each child’s case which provided that a particular attorney was 

“appointed as educational surrogate for the minor child herein 

and shall have all educational rights for the minor child.”

Robert and Veronica timely appealed from the May 2016 

orders appointing an educational surrogate in each child’s case. 

We moved these appeals to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the 

appellate courts of this state.1

ASSIGNMENTS OF ERROR

Robert and Veronica assign, consolidated and restated, that 

the juvenile court erred in (1) ordering them to show cause why 

they should not be held in contempt, and subsequently appointing an educational surrogate, while appeals of the adjudications 

were pending in the Court of Appeals and (2) appointing an 

educational surrogate in a civil contempt proceeding without 

giving them an opportunity to purge their contempt by completing the assessment consent forms.

1 Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

STANDARD OF REVIEW

[1] An appellate court reviews juvenile cases de novo on 

the record and reaches its conclusions independently of the 

juvenile court’s findings.2

[2] A jurisdictional question which does not involve a factual 

dispute is determined by an appellate court as a matter of law.3

ANALYSIS

Orders Appointing Educational

Surrogate Were Final Orders

[3] The State argues the orders appointing an educational 

surrogate were not final, appealable orders. In a juvenile case, 

as in any other appeal, before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.4

Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2016) gives 

appellate courts jurisdiction to review “[a]ny final order or 

judgment entered by a juvenile court . . . .” No one argues that 

the orders appointing an educational surrogate are judgments 

under Neb. Rev. Stat. § 25-1301 (Reissue 2016), so whether 

we have jurisdiction to review the juvenile court’s orders 

depends on whether Robert and Veronica have appealed from 

final orders.

[4,5] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the 

three types of final orders which may be reviewed on appeal 

are (1) an order which affects a substantial right and which 

determines the action and prevents a judgment, (2) an order 

affecting a substantial right made during a special proceeding, 

and (3) an order affecting a substantial right made on summary 

application in an action after judgment is rendered.5 Because 

2 In re Interest of Danaisha W. et al., 287 Neb. 27, 840 N.W.2d 533 (2013).

3 Id.

4 Id.

5 In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012); In re 

Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
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IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

a proceeding before a juvenile court is a “special proceeding” 

for appellate purposes,6 the pertinent inquiry is whether the 

order appointing an educational surrogate affected a substantial 

right. We conclude it did.

[6,7] A substantial right is an essential legal right, not a 

mere technical right.7 Whether a substantial right of a parent 

has been affected by an order in juvenile court litigation is 

dependent upon both the object of the order and the length of 

time over which the parent’s relationship with the juvenile may 

reasonably be expected to be disturbed.8 This court has considered both the object and duration of the orders at issue here, 

and we conclude the orders affect a substantial right.

[8] The object of the orders appointing an educational surrogate is the fundamental right of Robert and Veronica to 

direct the education of their children. The U.S. Supreme Court 

has recognized parents have a fundamental liberty interest 

in directing the education of their children.9 And this court 

has recognized there “can be no doubt that the object of [an 

order prohibiting a parent from homeschooling her child] is 

of sufficient importance to affect a substantial right.”10 Here, 

although the educational surrogate was appointed to address 

the parents’ refusal to consent to court-ordered assessments, 

the orders gave the surrogate “all educational rights for the 

minor child” and the court clarified on the record that “[t]here 

are no limitations on [the appointment] whatsoever . . . .” 

6 In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).

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

8 Id.

9 See, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 

(2000); Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L. 

Ed. 2d 772 (1997); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 

571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 

625, 67 L. Ed. 1042 (1923).

10 In re Interest of Cassandra B. & Moira B., 290 Neb. 619, 625, 861 N.W.2d 

398, 403 (2015).
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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

We are persuaded on this record that the object of the orders 

appointing an educational surrogate is of sufficient importance 

to affect a substantial right.

[9] The second prong of the substantial right analysis 

requires consideration of the length of time over which the 

parent-child relationship may reasonably be expected to be disturbed.11 Orders which temporarily suspend a parent’s custody, 

visitation, or education rights for a brief period of time do not 

affect a substantial right and are therefore not appealable.12

[10] Here, neither the language of the orders appointing the 

educational surrogate nor the court’s remarks on the record 

denote a temporary interruption of the parents’ rights to direct 

the education of their children. To the contrary, the court’s 

remarks indicate the educational surrogate was appointed with 

“no limitations on that whatsoever” and the court wanted 

the appointment to continue in case the parents “refuse to 

do something in the future.” Because there was no limit on 

the duration or scope of the educational surrogate’s appointment, we conclude these were not temporary orders, but, 

rather, orders which affected the parents’ substantial right to 

direct the education of their child.13 The orders were therefore 

final orders, and we proceed to consider the errors assigned 

on appeal.

Robert and Veronica challenge the appointment of an educational surrogate on two grounds. First, they argue the juvenile 

court lacked jurisdiction to issue or rule upon the orders to 

show cause while the adjudications were pending on appeal. 

Next, they argue the orders appointing an educational surrogate 

were improper sanctions for civil contempt, because they were 

not afforded “an opportunity to purge their contempt by signing the testing authorization forms.” We consider each argument in turn.

11 Id.

12 Id.

13 See id.
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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

Juvenile Court Had Jurisdiction

to Issue and Rule Upon

Orders to Show Cause

Robert and Veronica argue the juvenile court was without power to issue orders to show cause or appoint an educational surrogate while their appeals of the adjudications 

were pending before the Court of Appeals. They contend the 

appeal divested the juvenile court of jurisdiction to issue or 

rule upon the orders to show cause. In this regard, Robert 

and Veronica do not contend that the surrogate was unnecessary or that the ordered assessments were unrelated to the 

basis for adjudication. Nor do they challenge the juvenile 

court’s authority to appoint an educational surrogate generally. Rather, they assign and argue that because the adjudication appeals were pending, the juvenile court lacked authority 

to take any action.

[11-15] Nebraska case law generally holds that once an 

appeal has been perfected, the trial court is divested of its jurisdiction to hear a case involving the same matter between the 

same parties.14 However, Neb. Rev. Stat. § 43-2,106 (Reissue 

2016) provides in relevant part:

When a juvenile court proceeding has been instituted before a county court sitting as a juvenile court, 

the original jurisdiction of the county court shall continue until the final disposition thereof and no appeal 

shall stay the enforcement of any order entered in the 

county court. After appeal has been filed, the appellate court, upon application and hearing, may stay any 

order, judgment, or decree on appeal if suitable arrangement is made for the care and custody of the juvenile. 

The county court shall continue to exercise supervision 

over the juvenile until a hearing is had in the appellate 

court and the appellate court enters an order making 

other disposition.

14 In re Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d 109 (1998).
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IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

(Emphasis supplied). In In re Interest of Jedidiah P.,

15 we 

explained that although a juvenile court retains jurisdiction 

over a juvenile while an appeal is pending, such continuing 

jurisdiction is not without limits. For example, the continuing jurisdiction of a juvenile court pending an appeal from an 

adjudication does not include the power to terminate parental 

rights16 or to enter a permanent dispositional order.17 As such, 

the extent of the juvenile court’s jurisdiction must be determined by the facts of each case.18 The question presented here 

is whether, while the orders of adjudication were pending on 

appeal, the juvenile court had continuing jurisdiction to issue 

and rule upon orders to show cause seeking enforcement of its 

previous orders requiring a speech and language assessment. 

We conclude it did.

[16] The juvenile court’s adjudication orders placed custody 

of the children with DHHS and, among other things, ordered 

that assessments be conducted by the ESU. When the State 

learned the assessments had not yet occurred because DHHS 

and the parents had refused to complete the necessary forms, 

the State sought to enforce the court’s orders by filing an affidavit and application for order to show cause in each case. 

Juvenile courts, whether separate juvenile courts or county 

courts sitting as juvenile courts, are courts of record with the 

statutory authority to punish contemptuous conduct.19 Section 

43-2,106 expressly provides that “no appeal shall stay the 

enforcement of any order entered in the county court [sitting 

as a juvenile court].” Because the proceedings were enforcing 

15 In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).

16 Id., citing In re Interest of Joshua M. et al., 4 Neb. App. 659, 548 N.W.2d 

348 (1996), reversed in part on other grounds 251 Neb. 614, 558 N.W.2d 

548 (1997).

17 Id., citing In re Interest of Andrew H. et al., 5 Neb. App. 716, 564 N.W.2d 

611 (1997).

18 Id.

19 In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011).
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IN RE INTEREST OF BECKA P. ET AL.

Cite as 296 Neb. 365

previous orders of the juvenile court, we find no merit to the 

parents’ contention that the juvenile court lacked authority to 

issue or rule upon the orders to show cause while the orders of 

adjudication were on appeal.

Orders Appointing Educational

Surrogate Were Not Premised

on Finding of Contempt

Robert and Veronica argue the juvenile court erred in imposing “an unconditional punishment of removal of educational 

rights in a civil contempt proceeding, without giving [them] 

an opportunity to purge their contempt by signing the testing 

authorization forms. The parents argue that the court imposed 

a punitive sanction in a civil contempt proceeding, and they 

suggest a proper sanction for civil contempt “should have 

allowed them to purge the contempt by . . . sign[ing] the 

[authorization] forms for the tests.”20

This assignment of error assumes the court ordered the 

appointment of an educational surrogate as a sanction for a 

finding of civil contempt. But that is incorrect. The record 

shows the court specifically declined to find either the parents 

or DHHS in contempt of court for failing to complete the necessary authorizations. The orders appointing an educational 

surrogate were not imposed as a sanction for civil contempt, 

because there was no finding of contempt made by the court. 

We find this assignment of error is factually unsupported and 

therefore lacks merit.

CONCLUSION

For the foregoing reasons, the orders of the juvenile court 

are affirmed.

Affirmed.

20 Brief for appellants at 9.