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Decisions of the Nebraska Court of Appeals

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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

In re Interest of Angeleah M. and Ava M., 

children under 18 years of age.

State of Nebraska, appellee, v. 

D’Angelo E., appellant.

___ N.W.2d ___

Filed October 6, 2015. No. A-15-176.

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. Jurisdiction: Judgments: Appeal and Error. If a lower court does not 

have subject matter jurisdiction and, therefore, has no power to entertain 

the proceedings or decide a question, an appellate court lacks jurisdiction to review or evaluate an evidentiary determination for an act outside 

the jurisdiction of the court whose judgment or order is appealed.

4. ____: ____: ____. Although an extrajurisdictional act of a lower court 

cannot vest the appellate court with jurisdiction to review or evaluate 

an evidentiary determination involved in such act, an appellate court 

has jurisdiction and, moreover, the duty to determine whether the lower 

court had the power to enter the judgment or final order sought to 

be reviewed.

5. Juvenile Courts: Jurisdiction: Appeal and Error. 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.

6. Juvenile Courts: Jurisdiction: Parental Rights. Neb. Rev. Stat. 

§ 43-295 (Reissue 2008) generally provides a juvenile court with 
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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

continuing jurisdiction over a juvenile and empowers the court to order 

a change in the custody or care of any such juvenile if at any time it is 

made to appear to the court that it would be for the best interests of the 

juvenile to make such change.

7. Juvenile Courts: Jurisdiction: Appeal and Error. Although a juvenile 

court retains jurisdiction over a juvenile while an appeal is pending, 

such continuing jurisdiction is not without limits; orders regarding the 

juvenile pending the resolution of an appeal should be made on a temporary basis.

8. Juvenile Courts: Jurisdiction: Visitation. Neb. Rev. Stat. § 43-295 

(Reissue 2008) provides for the court’s continuing jurisdiction over the 

custody or care of that child, which includes visitation.

9. Juvenile Courts: Final Orders: Parental Rights. An order in a juvenile special proceeding is final and appealable if it affects a parent’s 

substantial right to raise his or her child.

10. Child Custody: Visitation: Final Orders: Appeal and Error. Orders 

which temporarily suspend a parent’s custody and visitation rights do 

not affect a substantial right and are therefore not appealable.

Appeal from the Separate Juvenile Court of Lancaster 

County: Roger J. Heideman, Judge. Appeal dismissed.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Joe Kelly, Lancaster County Attorney, and Shellie D. Sabata 

for appellee.

Moore, Chief Judge, and Pirtle and Bishop, Judges.

Bishop, Judge.

D’Angelo E. appeals from the decision of the separate 

juvenile court of Lancaster County temporarily suspending 

his visitation with his daughters, Angeleah M. and Ava M. 

D’Angelo argues that the juvenile court did not have jurisdiction to enter an order suspending his visitation when there 

was an appeal pending. He also argues that there was no evidence that suspension of visitation was in the children’s best 

interests. We find that the juvenile court had continuing jurisdiction to temporarily suspend D’Angelo’s visitation while an 

appeal was pending. However, we also find that the temporary 
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Decisions of the Nebraska Court of Appeals

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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

order was not a final, appealable order, and we therefore dismiss this appeal for lack of jurisdiction.

BACKGROUND

D’Angelo is the father of Angeleah, born in 2008, and Ava, 

born in 2009. In November 2013, the girls were adjudicated 

under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013), due to the 

faults or habits of D’Angelo, and D’Angelo’s parental rights to 

the girls were terminated. D’Angelo appealed the termination 

of his parental rights. In a memorandum opinion, In re Interest 

of Angeleah M. & Ava M., No. A-13-1060, 2014 WL 3489846 

(Neb. App. July 15, 2014) (selected for posting to court Web 

site), this court reversed the termination of D’Angelo’s parental 

rights, but affirmed the adjudication; we remanded the matter 

back to the juvenile court for further proceedings.

In September 2014, the juvenile court issued a disposition 

order stating that the primary permanency plan was reunification with an alternative plan for adoption. Angeleah and Ava 

were to remain in the temporary legal custody of the Nebraska 

Department of Health and Human Services (DHHS) and were 

to remain in their foster home placement. In addition to ordering D’Angelo to cooperate with therapeutic visitation, the 

juvenile court ordered D’Angelo to sign releases of information as requested by DHHS, not use or possess drugs or alcohol, cooperate in a parenting assessment and cooperate with 

a pretreatment assessment, cooperate with random drug and 

alcohol testing, cooperate with all service providers, inform 

DHHS of any change in address or telephone number, and 

maintain appropriate housing and a legal means of support for 

himself and his children. D’Angelo appealed the dispositional 

order. In case No. A-14-860, an unpublished memorandum 

opinion filed on April 27, 2015, this court affirmed the dispositional order of the juvenile court.

On February 13, 2015, while the dispositional order was on 

appeal to this court, DHHS filed a motion in the juvenile court 

to suspend D’Angelo’s visitation with Angeleah and Ava. On 
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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

February 17, the juvenile court entered an order temporarily 

suspending D’Angelo’s visits pending further hearing on the 

matter. A hearing was held on February 18.

At the hearing on February 18, 2014, various exhibits were 

received into evidence and testimony was given. Heather 

Post, the girls’ DHHS caseworker, testified regarding DHHS’ 

recommendation that continuing therapeutic visitation was 

not in the children’s best interests. Post testified that she had 

attempted to contact D’Angelo on numerous occasions, but 

that he failed to respond.

Post stated that D’Angelo continues to have a relationship 

with Claire M., the girls’ mother, who previously relinquished 

her parental rights, despite D’Angelo’s denying having contact with her. Post testified that the two have had multiple 

law enforcement contacts together since at least September 

2014. Exhibits received into evidence show that in February 

2015, D’Angelo was charged with “Domestic Assault, 3rd 

degree - subsq offense” for an incident occurring in January 

in which Claire was the victim; in December 2014, police 

were contacted when Claire and D’Angelo failed to return 

a vehicle to an automobile dealership after a “‘test drive’”; 

and also in December 2014, police were contacted regarding 

damage to a hotel room when D’Angelo and Claire got into 

an argument.

Post testified that there were concerns about what appeared 

to be ongoing marijuana use by D’Angelo. In Claire’s police 

report regarding the January 2015 domestic assault, she stated 

that D’Angelo used and sold narcotics. At a February 2015 

therapeutic visitation with the girls, their therapist confronted 

D’Angelo about an odor of marijuana about his person; 

D’Angelo denied he had been smoking marijuana. Also in 

February 2015, during a traffic stop of D’Angelo’s vehicle, 

an officer noted an odor of marijuana emanating from the 

vehicle and a marijuana “‘blunt’” was subsequently found in 

the vehicle; a passenger in the vehicle claimed that the blunt 

was his.
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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

Post testified that D’Angelo had canceled two of the last 

three visits. One of those visits, which was to occur on 

February 12, 2015, was canceled because D’Angelo was in 

jail; it was Post’s understanding that D’Angelo’s brother, pretending to be D’Angelo, called to cancel the visit saying he 

had to work late. Post testified that other than attending therapeutic visitation, D’Angelo had not participated in any ordered 

services to reunify with his daughters.

Post testified that the girls’ therapist had concerns about 

D’Angelo’s continuing to see the girls while he was not 

engaged in services and that the therapist believed it was 

necessary for D’Angelo to be involved in services that would 

enable him to gain placement of the girls in order to continue visits.

D’Angelo challenged Post’s testimony through crossexamination, and he argued to the juvenile court that the 

motion to suspend visitation was punitive. D’Angelo’s position was that there was no evidence D’Angelo was in custody 

and therefore no evidence to indicate he could not have visitation. Further, D’Angelo argued that he had missed only three 

visits in 5 months and that there was no evidence that the 

children were actually at risk of harm from having supervised 

therapeutic visitation 1 hour per week.

At the conclusion of the hearing on February 18, 2015, the 

juvenile court stated it was ordering the “temporary suspension” 

of therapeutic visitation, pending the outcome of a parenting 

assessment and psychological evaluation. And in its order filed 

on February 19, the juvenile court sustained DHHS’ motion 

and suspended the therapeutic visitation between D’Angelo 

and the girls “pending further order of the Court.” It is from 

this order that D’Angelo now appeals.

ASSIGNMENTS OF ERROR

D’Angelo assigns (1) the juvenile court did not have jurisdiction to suspend his visitation and (2) there was no evidence that suspension of visitation was in the children’s 

best interests.
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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

STANDARD OF REVIEW

[1] A jurisdictional issue that does not involve a factual dispute presents a question of law. In re Interest of Octavio B. et 

al., 290 Neb. 589, 861 N.W.2d 415 (2015).

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

the record and reaches its conclusions independently of the 

juvenile court’s findings. Id. 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. Id.

ANALYSIS

D’Angelo argues that the juvenile court did not have jurisdiction to suspend his visitation with the children because at 

the time that order was made, an appeal of the juvenile court’s 

dispositional order was pending and the order suspending 

visitation did not pertain to the children’s custody or care. 

The State argues that the juvenile court retained jurisdiction to 

enter an order suspending visitation during the pendency of an 

appeal of the initial dispositional order. The State also argues 

that the order suspending visitation on a temporary basis does 

not affect a parent’s substantial right and is therefore not a 

final, appealable order.

[3,4] If a lower court does not have subject matter jurisdiction and, therefore, has no power to entertain the proceedings 

or decide a question, an appellate court lacks jurisdiction to 

review or evaluate an evidentiary determination for an act 

outside the jurisdiction of the court whose judgment or order 

is appealed. In re Interest of L.D. et al., 224 Neb. 249, 398 

N.W.2d 91 (1986). However, although an extrajurisdictional 

act of a lower court cannot vest the appellate court with 

jurisdiction to review or evaluate an evidentiary determination involved in such act, an appellate court has jurisdiction 

and, moreover, the duty to determine whether the lower court 

had the power to enter the judgment or final order sought 

to be reviewed. Id. Accordingly, we must initially determine 
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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

whether the juvenile court had jurisdiction to enter the order 

suspending D’Angelo’s visitation.

Did Juvenile Court Have Jurisdiction 

to Enter Order?

D’Angelo challenges the juvenile court’s jurisdiction to enter 

an order suspending his visitation with his daughters while 

D’Angelo’s appeal of the dispositional order was pending.

[5,6] Nebraska case law generally holds that 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. In re Interest of Tabatha 

R., 255 Neb. 818, 587 N.W.2d 109 (1998). However, there is 

statutory authority allowing the juvenile court to retain or continue jurisdiction while appeals are pending. Neb. Rev. Stat. 

§ 43-295 (Reissue 2008) provides:

Except when the juvenile has been legally adopted, 

the jurisdiction of the court shall continue over any 

juvenile brought before the court or committed under the 

Nebraska Juvenile Code and the court shall have power 

to order a change in the custody or care of any such juvenile if at any time it is made to appear to the court that 

it would be for the best interests of the juvenile to make 

such change.

And Neb. Rev. Stat. § 43-2,106 (Reissue 2008) provides that 

the county court, acting as a juvenile 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. Although this statute does 

not specifically set forth that same authority for a separate 

juvenile court, our Supreme Court has addressed that omission. In In re Interest of Jedidiah P., 267 Neb. 258, 263, 

673 N.W.2d 553, 557 (2004), the Nebraska Supreme Court 

found no reason to treat differently a county court sitting as a 

juvenile court and a separate juvenile court, and held that “a 

separate juvenile court continues to exercise supervision of 
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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

the juvenile during an appeal until the appellate court enters 

an order making other disposition.”

[7] Although a juvenile court retains jurisdiction over a 

juvenile while an appeal is pending, as discussed above, 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. See 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). Similarly, pending an appeal from 

an adjudication, the juvenile court does not have the power to 

enter a permanent dispositional order; any order regarding the 

disposition of a juvenile pending the resolution of an appeal of 

the adjudication can only be made on a temporary basis upon a 

finding by the court that such disposition would be in the best 

interests of the juvenile. In re Interest of Jedidiah P., supra. 

As stated by the Nebraska Supreme Court, “The extent of the 

court’s jurisdiction must be determined by the facts of each 

case.” Id. at 263, 673 N.W.2d at 557. Accordingly, we must 

determine whether the juvenile court had continuing jurisdiction to suspend D’Angelo’s visitation while appeal of the disposition order was pending.

Section 43-295 generally provides a juvenile court with continuing jurisdiction over a juvenile and empowers the court to 

“order a change in the custody or care of any such juvenile if 

at any time it is made to appear to the court that it would be for 

the best interests of the juvenile to make such change.” In In re 

Interest of Joshua M. et al., 4 Neb. App. at 670, 548 N.W.2d at 

356, this court said that “[s]ection 43-295 is a statutory analog 

to Neb. Rev. Stat. § 42-351 (Reissue 1993), which authorizes 

a district court, in dissolution proceedings, to exercise jurisdiction regarding minor children ‘to provide for such orders 

regarding custody, visitation, or support or other appropriate 

orders in aid of the appeal process.’” (Emphasis supplied.) 

See, also, In re Interest of L.D. et al., 224 Neb. 249, 398 

N.W.2d 91 (1986); In re Interest of Juan L., 6 Neb. App. 683, 
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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

577 N.W.2d 324 (1998). We note that Neb. Rev. Stat. § 42-351 

(Reissue 2008) has been amended numerous times since 1993, 

the version of the statute relied on in In re Interest of Joshua 

M. et al., supra. However, the amendments have expanded, not 

limited, the types of orders over which the lower court retains 

jurisdiction to enter in aid of the appeal process. Further, at 

all times, § 42-351 has provided courts with continuing jurisdiction to protect the best interests of children, including the 

authority to enter orders regarding visitation.

In the area of divorce law, this court has stated that 

§ 42-351(2) allows lower courts to retain jurisdiction to 

enter visitation orders despite the pendency of an appeal. See

Bayliss v. Bayliss, 8 Neb. App. 269, 592 N.W.2d 165 (1999) 

(§ 42-351(2) allows district court to enter support and visitation orders pending appeal, but it does not grant authority to 

hear and determine anew those very issues then pending on 

appeal and to enter permanent orders addressing these issues 

during appeal process); Eisenmann v. Eisenmann, 1 Neb. App. 

138, 488 N.W.2d 587 (1992) (implicitly stating district court 

retains jurisdiction for orders regarding custody or visitation 

notwithstanding fact that support issue was on appeal).

[8] D’Angelo argues that § 43-295 provides for jurisdiction 

over only “custody or care” of the juvenile and that DHHS’ 

motion did not seek a change in “custody or care”; rather, it 

sought to suspend visitation. D’Angelo is apparently suggesting that since the word “visitation” is not specifically stated 

in § 43-295, the juvenile court has no authority to modify a 

parent’s visitation if an appeal is otherwise pending. We are 

unwilling to construe the statute in a way that would prevent a 

juvenile court from acting on matters affecting the best interests of children as the statute otherwise permits it to do. Section 

43-295 states that a juvenile court has continuing jurisdiction 

over a juvenile and authorizes the court to “order a change 

in the custody or care of any such juvenile if at any time it 

is made to appear to the court that it would be for the best 

interests of the juvenile to make such change.” If a juvenile 
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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

court is presented evidence “at any time” demonstrating that 

the best interests of the children may be adversely impacted 

unless parental visitation is temporarily suspended, § 43-295 

provides for the court’s continuing jurisdiction over the “custody or care” of that child, which we determine includes visitation. As previously discussed, we have held that § 43-295 is a 

statutory analog to § 42-351, and § 42-351 allows lower courts 

to retain jurisdiction to enter visitation orders despite the pendency of an appeal in dissolution proceedings. It follows that 

§ 43-295 also allows lower courts to retain jurisdiction to enter 

visitation orders despite the pendency of an appeal in juvenile 

proceedings. Accordingly, the juvenile court in the instant case 

had continuing jurisdiction to temporarily suspend D’Angelo’s 

visitation while appeal of the disposition order was pending. 

See, In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 

553 (2004); Bayliss v. Bayliss, supra.

Do We Have Jurisdiction to Review 

Juvenile Court’s Order?

Having established that the juvenile court had continuing jurisdiction to temporarily suspend D’Angelo’s visitation 

while appeal of the disposition order was pending, we must 

now determine whether such order of suspension was a final, 

appealable order.

[9] 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. In re Interest of Octavio B. et al., 290 Neb. 

589, 861 N.W.2d 415 (2015). For an appellate court to acquire 

jurisdiction of an appeal, there must be a final order entered 

by the court from which the appeal is taken. Id. Juvenile court 

proceedings are special proceedings under Neb. Rev. Stat. 

§ 25-1902 (Reissue 2008), and an order in a juvenile special 

proceeding is final and appealable if it affects a parent’s substantial right to raise his or her child. In re Interest of Octavio 

B. et al., supra.
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IN RE INTEREST OF ANGELEAH M. & AVA M.

Cite as 23 Neb. App. 324

[10] The Nebraska Supreme Court has already held that 

orders which temporarily suspend a parent’s custody and visitation rights do not affect a substantial right and are therefore 

not appealable. See, In re Interest of Danaisha W. et al., 287 

Neb. 27, 840 N.W.2d 533 (2013); Steven S. v. Mary S., 277 

Neb. 124, 760 N.W.2d 28 (2009); In re Interest of Nathaniel 

P., 22 Neb. App. 46, 51, 846 N.W.2d 681, 685 (2014) (“use 

of the word ‘suspend’ denotes its temporary nature”). See, 

also, In re Interest of Cassandra B. & Moira B., 290 Neb. 

619, 861 N.W.2d 398 (2015) (when neither language of order 

nor context in which it was entered denotes temporary interruption of parent’s substantial right, order may be final and 

appealable). In this case, the juvenile court’s oral pronouncement on February 18, 2015, and its written order on February 

19 temporarily suspended D’Angelo’s therapeutic visitation 

with Angeleah and Ava, pending the outcome of a parenting 

assessment and psychological evaluation, and was not a final, 

appealable order. Accordingly, we dismiss this appeal for lack 

of jurisdiction.

CONCLUSION

For the reasons stated above, we find that the juvenile court 

had continuing jurisdiction to temporarily suspend D’Angelo’s 

visitation while appeal of the disposition order was pending. 

However, the juvenile court’s order temporarily suspending 

D’Angelo’s visitation was not a final order affecting a substantial right. Accordingly, we dismiss this appeal for lack 

of jurisdiction.

Appeal dismissed.