Decisions of the Nebraska Court of Appeals

780 22 NEBRASKA APPELLATE REPORTS

CONCLUSION

We find that after the Nebraska Supreme Court issued its 

mandate on the declaratory judgment action, there was no 

pending action in the district court which could be amended. 

The district court correctly concluded that it lacked jurisdiction, and it follows that this court also lacks jurisdiction 

on appeal.

Appeal dismissed.

In re Interest of Ethan M., a child

under 18 years of age.

State of Nebraska, appellee, v. 

Daniel M., appellant.

___ N.W.2d ___

Filed February 24, 2015. No. A-14-358.

1. Juvenile Courts: Judgments: Appeal and Error. Cases arising under the 

Nebraska Juvenile Code are reviewed de novo on the record, and an appellate 

court is required to reach a conclusion independent of the trial court’s findings. 

However, when the evidence is in conflict, the appellate court will consider and 

give weight to the fact that the lower court observed the witnesses and accepted 

one version of the facts over the other.

2. Juvenile Courts: Jurisdiction. Neb. Rev. Stat. § 43-247 (Supp. 2013) provides that the juvenile court’s jurisdiction over any individual adjudged to be 

within the provisions of the juvenile code shall continue until the individual 

reaches the age of majority or the court otherwise discharges the individual from 

its jurisdiction.

3. Juvenile Courts: Minors. The purpose of the juvenile code is to assure the rights 

of all juveniles to care and protection and a safe and stable living environment 

and to development of their capacities for a healthy personality, physical wellbeing, and useful citizenship to protect the public interest.

4. ____: ____. The Nebraska Juvenile Code must be liberally construed to accomplish its purpose of serving the best interests of juveniles who fall within it.

5. ____: ____. The juvenile court has broad discretion as to the disposition of those 

who fall within its jurisdiction.

6. Courts: Juvenile Courts: Jurisdiction: Minors. Both a civil court and a juvenile court may be concerned on a primary basis with the welfare of the child, but, 

while their functions overlap, the basis of their jurisdiction and the scope of their 

powers differ.

7. Juvenile Courts: Jurisdiction: Interventions: Parent and Child. The juvenile 

court can appropriately intervene between the parents and the child only if the 
Decisions of the Nebraska Court of Appeals

IN RE INTEREST OF ETHAN M. 781

Cite as 22 Neb. App. 780

child’s condition requires the state to use its power to protect the welfare of 

the child.

Appeal from the Separate Juvenile Court of Lancaster 

County: Toni G. Thorson, Judge. Affirmed.

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., 

for appellant.

Ashley Bohnet, Deputy Lancaster County Attorney, and 

Jordan Talsma, Senior Certified Law Student, for appellee.

Irwin, Inbody, and Pirtle, Judges.

Irwin, Judge.

I. INTRODUCTION

Daniel M. appeals an order of the separate juvenile court 

of Lancaster County, Nebraska, terminating its jurisdiction 

over Daniel’s son, Ethan M. This case has previously been 

on appeal to this court on a number of occasions. See, In re 

Interest of Ethan M., 15 Neb. App. 148, 723 N.W.2d 363 (2006) 

(Ethan M. I); In re Interest of Ethan M., 18 Neb. App. 63, 774 

N.W.2d 766 (2009) (Ethan M. II); In re Interest of Ethan M., 

19 Neb. App. 259, 809 N.W.2d 804 (2011) (Ethan M. III); In re 

Interest of Ethan M., No. A-13-058, 2013 WL 4036465 (Neb. 

App. Aug. 6, 2013) (selected for posting to court Web site) 

(Ethan M. IV).

In the present appeal, Daniel has assigned numerous errors, 

including the juvenile court’s finding that jurisdiction should 

be terminated. Because we find no error with the court’s termination of its jurisdiction, we affirm.

II. BACKGROUND

This case has appeared before this court on at least six prior 

occasions, resulting in three prior published opinions, as noted 

above. In Ethan M. III, 19 Neb. App. at 260-61, 809 N.W.2d 

at 806-07, this court recounted the prior history, including the 

results of the first two published opinions:

Ethan . . . , born in January 2000, is the child of Daniel 

and Theresa S. Following the dissolution of Daniel and 
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782 22 NEBRASKA APPELLATE REPORTS

Theresa’s marriage in 2002, a California court awarded 

Daniel custody of Ethan. In January 2005, [the Department 

of Health and Human Services (DHHS)] removed Ethan 

from Daniel’s home in Nebraska and placed him into foster care. The county court for Sherman County, Nebraska, 

subsequently adjudicated Ethan as a result of allegations 

that other children residing within the home had suffered injuries. In January 2006, the court approved an 

immediate change of Ethan’s placement from the home 

of his paternal grandparents to the home of [his biological mother] Theresa in California. Daniel appealed, 

and in [Ethan M. I], we found that the State must make 

reasonable efforts to reunify Ethan and Daniel. We recognized that under the California divorce decree, Daniel 

was Ethan’s custodial parent. We concluded that Ethan 

should not be placed in California with Theresa and 

that he should be placed in a situation in Nebraska that 

was conducive to reunification with Daniel. We observed 

that Daniel had complied with all tasks required by the 

case plan.

DHHS did not return Ethan’s custody to Daniel. Rather, 

Ethan’s physical custody remained with Theresa, who 

moved to Nebraska. In June 2007, Daniel began having 

weekly supervised visitation with Ethan. But in August, 

the visitation was changed to therapeutic visitation supervised by a mental health professional. In September, 

visitation ceased due to the unavailability of a mental 

health professional to supervise the visitation. DHHS 

arranged for telephone calls between Ethan and Daniel 

on Tuesdays and Thursdays, but Ethan often ended the 

calls quickly or refused to speak [to Daniel]. In February 

2009, the county court for Sherman County adopted 

DHHS’ case plan which continued telephonic visitation 

only, found that reasonable efforts to reunify Ethan and 

Daniel were not necessary, placed custody of Ethan with 

Theresa, and dismissed the juvenile case. Upon Daniel’s 

appeal, we found plain error in the court’s order. In 

[Ethan M. II, 18 Neb. App. at 72, 774 N.W.2d at 773], 

we held that “where the only issue placed in front of the 
Decisions of the Nebraska Court of Appeals

IN RE INTEREST OF ETHAN M. 783

Cite as 22 Neb. App. 780

county court is whether a case plan is in the child’s best 

interests, permanent child custody cannot be modified 

merely through the adoption of the case plan.” We stated, 

however, that “a case plan could be used to place a child 

with a noncustodial parent as a dispositional order under 

the continuing supervision of the juvenile court.” Id. We 

reversed the county court’s order and remanded the cause 

for further proceedings.

In Ethan M. IV, we recounted the history of the case following Ethan M. II. We noted that a series of review hearings were 

held in 2010 and that the court had entered an order of review 

which approved a Department of Health and Human Services 

(DHHS) case plan containing no rehabilitative goals or tasks 

for Daniel. We noted that the court had continued legal custody 

with DHHS and physical custody with Theresa S., had found 

that reasonable efforts had been made to prevent or eliminate 

the need for removal of Ethan from his home, and had ordered 

that the primary permanency plan was family preservation with 

an alternative plan of reunification.

In Ethan M. III, we observed that the order at issue was 

no longer one finding that reasonable efforts were excused, 

but was one finding that reasonable efforts had been made to 

prevent or eliminate the need for Ethan’s removal from his 

home. We noted, however, that Ethan had been removed from 

Daniel’s home and not Theresa’s home and that the adopted 

case plan had no goals or services related to correcting, eliminating, or ameliorating the situation that led to that removal 

and, instead, had essentially attempted to redefine Ethan’s 

home as Theresa’s home, even though he had been removed 

from Daniel’s home. We concluded that DHHS needed to 

immediately obtain updated assessments and devise rehabilitative goals to facilitate a future reunification between Ethan 

and Daniel.

Subsequent to our opinion in Ethan M. III, the court 

ordered evaluations to assess Ethan’s best interests and the 

possibility of reunification with Daniel. See Ethan M. IV. 

The court also ordered DHHS to devise rehabilitative goals to 

facilitate a future reunification, bearing in mind Ethan’s best 

interests. Id.
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784 22 NEBRASKA APPELLATE REPORTS

In December 2012, the juvenile court entered an order 

finding that legal custody should remain with DHHS, that 

Ethan’s needs were being met, that services were being provided in compliance with a case plan, and that reasonable 

efforts had been made to prevent or eliminate the need for 

removing Ethan from his home. Ethan M. IV. The court noted 

that, at that time, there was evidence that beginning visitation 

between Ethan and Daniel would be harmful to Ethan and that 

Ethan did not desire a relationship with Daniel and was anxious and fearful of him. Id.

On appeal in Ethan M. IV, we ultimately concluded that 

we lacked jurisdiction because Daniel was not appealing 

from a final order. The denial of Daniel’s motions for visitation and for immediate placement did not affect substantial 

rights and were not final and appealable, and there had not 

been such changes in the permanency plans to create a final 

and appealable order. As such, we dismissed for lack of jurisdiction. Id.

Since our decision in August 2013 in Ethan M. IV, additional review hearings were held and additional services were 

provided to Ethan and Daniel.

In September 2013, the juvenile court conducted a review 

hearing, during which it also heard a motion filed by the guardian ad litem requesting a court order permitting therapeutic visitation between Ethan and Daniel. The licensed social worker 

and mental health practitioner who had been working with 

Ethan testified that he had seen Ethan every 2 to 3 weeks since 

September 2012 and that he had met with Daniel in October 

2012 and again in February 2013.

He testified that he would recommend starting therapeutic 

visitation between Ethan and Daniel. He testified that Ethan 

had sometimes expressed an interest in seeing Daniel, but 

that Ethan had vacillated between wanting to see Daniel and 

not wanting to see Daniel. He testified that he believed Ethan 

was using his expressions of wanting to see Daniel as a form 

of manipulation of Theresa, who was guarded about potential 

negative impacts that might arise from therapeutic visitation 

between Ethan and Daniel. He also testified that it would be 

unwise to force Ethan to attend visitation with Daniel and 
Decisions of the Nebraska Court of Appeals

IN RE INTEREST OF ETHAN M. 785

Cite as 22 Neb. App. 780

that the focus for Ethan’s well-being needed to be on establishing permanence.

On cross-examination, the social worker acknowledged that 

Ethan had been given numerous opportunities to engage with 

Daniel and had not wanted to, that Ethan wanted to “move 

on,” and that Ethan really only wanted to express his anger 

to Daniel and that doing so “may mean that is the last time 

[Ethan] ever sees [Daniel].” He also testified that Ethan was in 

a safe and stable environment with Theresa. During questioning from the court, the social worker testified that Ethan has 

no desire to have a relationship with Daniel and that the social 

worker had pushed Ethan to have a conversation with Daniel 

to express his feelings.

At the conclusion of that hearing, the court adopted the 

DHHS plan and authorized therapeutic visitation, to be established consistent with Ethan’s best interests. The adopted 

plan provided for Ethan to remain placed in Theresa’s home, 

and the plan indicated that such placement was the least 

restrictive alternative and was in Ethan’s best interests. The 

plan provided a primary permanency plan of family preservation by February 2014. The court ordered DHHS to assist 

Daniel with any necessary transportation to participate in 

such visitation.

In late December 2013, another review hearing was held. 

The record indicates that, in addition to reviewing the progress 

of the juvenile case, the juvenile court was simultaneously 

hearing a custody case concerning the parties. The court noted 

that in a separate civil case, temporary custody of Ethan had 

been placed with Theresa, apparently modifying the custody 

previously awarded to Daniel in the parties’ divorce.

During the review hearing, the DHHS caseworker testified 

that DHHS was recommending case closure, was not continuing to try to force Ethan to have contact with Daniel, and was 

allowing Ethan to achieve permanency in the safe and stable 

home environment in which he was then living, with Theresa. 

The caseworker testified that continued contact between Ethan 

and Daniel was not in Ethan’s best interests.

Daniel testified that three different therapeutic visits had 

been scheduled and that he had traveled to Lincoln, Nebraska, 
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786 22 NEBRASKA APPELLATE REPORTS

each time to attempt to participate. He testified that when he 

arrived at the social worker’s office for the first scheduled therapeutic visit, the social worker had been informed “just prior 

to the visit, that Ethan would not be attending.” Telephone 

contact was attempted, and “the phone was just hung up” twice 

before Ethan briefly spoke with Daniel.

Daniel testified that when he arrived at the social worker’s 

office for the second visit, he was informed that Ethan would 

again not be attending. Ethan was called again and told Daniel 

that “he didn’t feel like talking.” According to Daniel, that was 

the end of that call.

Daniel testified that when he arrived at the social worker’s 

office for the third visit, Ethan was again not going to be physically present. Another short telephone conversation occurred.

Daniel also testified that he had sent three letters to Ethan, 

but that he received “[n]othing at all” back from Ethan in 

response to any of the letters.

In April 2014, the juvenile court entered an order terminating its jurisdiction over Ethan. The court noted that Ethan was 

then 13 years old and that he had been living in Theresa’s care 

since January 2006. The court noted that a permanency plan of 

family preservation with Theresa had been approved at least 

since 2009.

The court noted the efforts DHHS had made to establish a 

relationship between Ethan and Daniel. DHHS had changed 

Ethan’s therapist to provide “‘fresh eyes’” on the situation and 

had provided Ethan with individual therapy with a therapist to 

work on the relationship with Daniel. Ethan and Theresa had 

cooperated with the therapy. The therapist had attempted to 

facilitate telephone contact and therapeutic visitations between 

Ethan and Daniel. DHHS had also provided team meetings to 

facilitate case goals. DHHS had also assisted Daniel with transportation and had provided him an opportunity to write letters 

to Ethan.

Despite those efforts, Ethan, now a teenager, has refused 

to cooperate and has refused to attend visitation with Daniel. 

According to the court, Ethan has “clearly indicated he will 

not participate in visits and does not intend to talk with his 

father[, Daniel].” As noted, Ethan did not agree to attend any 
Decisions of the Nebraska Court of Appeals

IN RE INTEREST OF ETHAN M. 787

Cite as 22 Neb. App. 780

of the scheduled therapeutic visits and was willing to speak 

only briefly with Daniel on the telephone. The court also 

noted that Ethan has held this position concerning Daniel 

for years.

The court held that forcing Ethan to have contact with 

Daniel was not in Ethan’s best interests. The court noted that 

Ethan is in a safe and stable placement with his biological 

mother, Theresa, and is doing well in that placement. The 

court also recognized the pending custody case, in which 

temporary custody of Ethan had been placed with Theresa. As 

such, the court concluded that the juvenile court jurisdiction 

should terminate and that there are no other reasonable efforts 

that can be made to justify continuing the juvenile case. Daniel 

now appeals.

III. ASSIGNMENTS OF ERROR

Daniel has assigned a number of errors on appeal, including that the juvenile court erred in terminating jurisdiction. 

Because we conclude below that the court did not err in terminating jurisdiction, we need not more fully discuss Daniel’s 

other assignments of error.

IV. ANALYSIS

This case presents the court with a situation where the 

juvenile court has exercised jurisdiction for approximately 

9 years; has approved various case plans that have provided 

therapy and stability for Ethan, who is now a teenager; and 

has attempted to incorporate attempts to restore a relationship between Daniel and Ethan. Throughout that time, Ethan 

has largely expressed a refusal to develop such a relationship with Daniel and has refused to attend offered visitation. 

A separate custody proceeding has been instituted involving 

Ethan, Daniel, and Theresa. The evidence adduced supports 

the juvenile court’s conclusion that there are no further reasonable efforts available to the juvenile court justifying continuing 

jurisdiction, and we affirm.

[1] Cases arising under the Nebraska Juvenile Code are 

reviewed de novo on the record, and an appellate court is 

required to reach a conclusion independent of the trial court’s 
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788 22 NEBRASKA APPELLATE REPORTS

findings. However, when the evidence is in conflict, the appellate court will consider and give weight to the fact that the 

lower court observed the witnesses and accepted one version 

of the facts over the other. In re Interest of Zoey S., 22 Neb. 

App. 371, 853 N.W.2d 225 (2014).

[2-5] Neb. Rev. Stat. § 43-247 (Supp. 2013) provides that 

the juvenile court’s jurisdiction over any individual adjudged 

to be within the provisions of the juvenile code shall continue 

until the individual reaches the age of majority or the court otherwise discharges the individual from its jurisdiction. The purpose of the juvenile code is to assure the rights of all juveniles 

to care and protection and a safe and stable living environment 

and to development of their capacities for a healthy personality, physical well-being, and useful citizenship to protect the 

public interest. Neb. Rev. Stat. § 43-246(1) (Cum. Supp. 2014); 

In re Interest of Vincent P., 15 Neb. App. 437, 730 N.W.2d 403 

(2007). The Nebraska Juvenile Code must be liberally construed to accomplish its purpose of serving the best interests of 

juveniles who fall within it. In re Interest of Vincent P., supra. 

The juvenile court has broad discretion as to the disposition of 

those who fall within its jurisdiction. Id.

[6,7] The Nebraska Supreme Court has recognized that 

both a civil court and a juvenile court may be concerned on 

a primary basis with the welfare of the child, but, while their 

functions overlap, the basis of their jurisdiction and the scope 

of their powers differ. See In re Interest of Goldfaden, 208 

Neb. 93, 302 N.W.2d 368 (1981). The Supreme Court has held 

that the juvenile court can appropriately intervene between 

the parents and the child only if the child’s condition requires 

the state to use its power to protect the welfare of the child. 

See id.

The chronology of this case, our prior opinions in this case, 

and evidence adduced at the latest review hearing demonstrate 

that Ethan’s condition no longer requires the intervention of 

the juvenile court and, conversely, do not demonstrate that 

there are additional efforts available to the juvenile court 

which will reasonably serve Ethan’s best interests or that 

Ethan’s best interests require continued intervention of the 

juvenile court.
Decisions of the Nebraska Court of Appeals

IN RE INTEREST OF ETHAN M. 789

Cite as 22 Neb. App. 780

We found in Ethan M. I that the State needed to make reasonable efforts to reunify Ethan and Daniel and that Ethan 

should not be placed with his biological mother, Theresa, 

in California, because a placement in Nebraska would be 

more conducive to fostering a relationship between Ethan and 

Daniel. Following our decision, Theresa moved to Nebraska 

and Ethan continued to be placed with her. Weekly supervised 

visitation was commenced, and eventually, DHHS arranged 

for regular telephone visitation between Ethan and Daniel. 

Ethan often ended these calls quickly or refused to speak 

to Daniel.

We found in Ethan M. II that it was inappropriate for the 

juvenile court to permanently modify child custody through 

the adoption of a case plan, and we found in Ethan M. III that 

DHHS needed to obtain updated assessments and devise rehabilitative goals to facilitate a potential reunification between 

Ethan and Daniel. This was done, and we recognized in 

Ethan M. IV that the juvenile court ordered updated evaluations and ordered DHHS to devise rehabilitative goals to facilitate reunification, bearing in mind Ethan’s best interests.

Evidence presented to the juvenile court in the trial proceedings of Ethan M. IV demonstrated that Ethan’s needs were 

being met in his placement with Theresa and that beginning 

visitation between Ethan and Daniel would be harmful to 

Ethan. Evidence also demonstrated that Ethan, then 12 years of 

age, did not desire a relationship with Daniel and was anxious 

and fearful of him.

Now, subsequent to our decision in Ethan M. IV, additional 

review hearings have been held and additional evidence has 

been adduced to the juvenile court. Based on the recommendation of a licensed social worker and mental health practitioner 

who had been seeing Ethan on a regular basis, the juvenile 

court adopted a case plan that included authorization of therapeutic visitation between Ethan and Daniel. Three such visits 

were scheduled, but none of them were successfully completed. 

On each occasion, Ethan refused to attend. Telephone contact 

was attempted, with limited success. In addition, Daniel’s 

attempts to engage Ethan in a relationship through written correspondence resulted in Ethan’s not responding “at all.”
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790 22 NEBRASKA APPELLATE REPORTS

Evidence was adduced to the juvenile court supporting a 

conclusion that forcing Ethan to attend visitation or have a relationship with Daniel would be contrary to Ethan’s best interests. Ethan has been given numerous opportunities throughout 

the history of this case to engage with Daniel, has repeatedly 

expressed that he does not desire to do so, and has refused to 

engage in a relationship with Daniel.

The record presented to us demonstrates that a separate civil 

case is pending in which custody of Ethan is being litigated 

between Daniel and Theresa. The record suggests that, in the 

civil case, temporary custody of Ethan has been placed with 

Theresa, apparently modifying a prior dissolution decree’s 

award of custody to Daniel. The evidence adduced to the 

juvenile court has consistently demonstrated that Ethan is in 

a safe and stable placement with Theresa and is doing well in 

that placement.

We find that the record fully supports the juvenile court’s 

conclusion that further attempting to force Ethan to have contact with Daniel is not in Ethan’s best interests. The record 

also supports the court’s conclusion that there has not been a 

showing that any additional reasonable efforts are available to 

justify continuing the juvenile case. The record supports the 

court’s conclusion that the pending custody case is an appropriate forum for resolving any custody issues between the parties. 

As such, we affirm the juvenile court’s termination of jurisdiction in this case.

V. CONCLUSION

We find no error in the juvenile court’s termination of jurisdiction. We affirm.

Affirmed.