IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IN RE INTEREST OF AVERIE G. ET AL.

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

IN RE INTEREST OF AVERIE G. ET AL., CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE,

V.

CHRISTOPHER G., APPELLANT.

Filed July 30, 2013. Nos. A-12-945 through A-12-947.

Appeal from the County Court for Scotts Bluff County: JAMES M. WORDEN, Judge. 

Appeal dismissed.

Todd Morten, of Island & Huff, P.C., L.L.O., for appellant.

Tiffany A. Wasserburger, Deputy Scotts Bluff County Attorney, for appellee.

David P. Broderick, of Douglas, Kelly, Ostdiek & Ossian, P.C., guardian ad litem.

INBODY, Chief Judge, and IRWIN and MOORE, Judges.

INBODY, Chief Judge.

INTRODUCTION

Christopher G. appeals the decision of the Scotts Bluff County Court, sitting in its 

capacity as a juvenile court, adopting a case plan which changed the permanency goal for his

minor children from adoption with a concurrent goal of reunification to a goal of adoption alone 

and in finding that reasonable efforts of reunification had been made by the State. He also 

appeals the court’s denial of his application to proceed in forma pauperis on appeal.

BACKGROUND

Christopher is the biological father of Serenity G., born in June 2006; Christopher G., Jr. 

(Christopher Jr.), born in April 2007; and Averie G., born in February 2009. On December 9, 

2011, separate adjudication petitions were filed regarding Serenity and Averie, alleging that they 

- 1 -
were children within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). These 

petitions alleged that Serenity and Averie lacked parental care due to domestic violence between 

Christopher and the girls’ biological mother, Jerah S. The petitions also alleged that Christopher 

and Jerah left the girls with a family friend, were out of contact for several days, and failed to 

give consent to treat the girls for medical issues. The petitions were amended to allege additional 

assertions that Christopher has a substantial criminal history, has been incarcerated repeatedly, 

was currently incarcerated, and was facing a number of additional criminal charges.

On January 19, 2012, the State filed a petition on behalf of Christopher Jr. after his legal 

guardian died. The petition stated the “guardianship ha[d] been disrupted” and alleged 

Christopher Jr. lacked parental care due to the facts that both parents have failed to provide any 

care or necessities for his care; that his parents have a history of domestic violence between 

them; that both parents had a history of substance abuse, including methamphetamine; and that 

both parents had been incarcerated. A supplemental petition added the allegations of a previous 

adjudication; of Christopher’s current incarceration and his facing additional charges; and of a 

motion to terminate Christopher’s parental rights as to Christopher Jr., which motion was later 

dismissed. The children were adjudicated as to Christopher on April 24, 2012, upon his 

admission of the allegations contained in the supplemental juvenile petitions.

At the May 22, 2012, dispositional hearing, the Department of Health and Human 

Services (DHHS) recommended a primary permanency goal of adoption. The county court 

adopted the May 2012 DHHS court report and case plan with the amendment of adding a 

concurrent plan of reunification, resulting in a permanency goal of adoption with a concurrent 

plan of reunification. The court noted that reasonable efforts were set forth in the court report 

and case plan. The court ordered all parties to comply with the terms of the case plan “including 

any Court ordered amendments.” Custody of the minor children was placed with DHHS, and 

pursuant to the provisions of the case plan adopted by the court, visitation between Christopher 

and the minor children was to follow the recommendations of the children’s therapist, Sara 

Klein, including recommendations as to setting, duration, and frequency. The court’s order 

specifically provided that “part of the evaluation with the children and their therapist shall 

include the appropriateness of visitation with the father.”

A permanency hearing was held on August 13, 2012. Among the exhibits admitted into 

evidence at the hearing was the August 2012 DHHS case plan, a report by the children’s 

guardian ad litem, and a psychological evaluation of Christopher conducted by a certified clinical 

psychologist. The psychological evaluation, dated August 6, 2012, recommended that the court 

“exercise great caution in any attempt to return the children to their father”; described 

Christopher as “a poor fit” for the children’s needs; and recommended that at a minimum, the 

court should expect Christopher to maintain stability in his living situation, relationships, work, 

and probation for an extended period of time, at least 1 or 2 years, prior to allowing unsupervised 

visits or placing the children with him. The children’s caseworker recommended that Christopher 

needed to maintain his sobriety for at least 90 days before having a supervised visit with the 

children. Klein is Serenity’s and Christopher Jr.’s therapist; Klein does not see Averie due to her 

young age. Klein testified that she had reviewed Christopher’s psychological evaluation and that 

based on the evaluation and her visits with Serenity and Christopher Jr., in her opinion, it was not 

in the children’s best interests to have contact with Christopher at that time as it would be more 

- 2 -
of a disruption than a benefit. However, Klein testified that she was concerned with the 

recommendation of a 1-to-2-year waiting period before beginning visitation because she did not 

“feel it’s in the best interests of the children to wait one to two years to be able to prove that, to 

begin having contact with [their] father.” She did testify that she would like to see some stability 

from Christopher, even short-term, such as 90 days, prior to starting visitation.

The children’s guardian ad litem noted in his August 2012 report to the court that at that 

time, Averie and Serenity had been out of the family home for 9 months, during which time 

Christopher had not seen them, that Christopher has never parented Christopher Jr. for a 

continuous period of time, and that if the court agreed with the certified clinical psychologist’s 

recommendations concerning visitation, the case could be open for 21 to 33 months before 

Christopher would even be allowed to have unsupervised contact with his children.

On August 13, 2012, the county court adopted the August 2012 DHHS case plan and 

ordered that the permanency goal be changed from a goal of reunification with a concurrent goal 

of adoption to a goal of adoption only. Like the previous May 2012 case plan, the August 2012 

case plan adopted by the court recommended that the establishment of visitation between 

Christopher and the minor children follow the recommendations of the children’s therapist, 

Klein, and that the recommendations include setting, duration, and frequency of visits. The 

court’s August 2012 order specifically provided that “[t]he previous order on visitation shall 

remain in force” and “[a]ll previous orders not in conflict with this order shall remain in full 

force and effect.”

Christopher timely filed a notice of appeal and a request to proceed in forma pauperis 

with an accompanying affidavit. The county court found that Christopher had originally been 

declared indigent and had been appointed an attorney, but that Christopher had dismissed his 

court-appointed attorney and hired his own attorney. Therefore, the court found that Christopher 

had waived his right to proceed in forma pauperis and had not shown extraordinary 

circumstances which would preclude the enforcement of said waiver and denied his request. 

Christopher timely paid the statutory docket fee following the denial of his request for in forma 

pauperis status.

ASSIGNMENTS OF ERROR

Christopher contends that the county court erred in denying his application to proceed in 

forma pauperis on appeal, in adopting the August 2012 case plan which changed the permanency 

goal from concurrent goals of adoption and reunification to a sole goal of adoption, and in 

finding that reasonable efforts were made to reunify the family.

STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches its 

conclusions independently of the juvenile court’s findings. In re Interest of Candice H., 284 Neb. 

935, 824 N.W.2d 34 (2012).

- 3 -
ANALYSIS

Denial of Request for In Forma Pauperis Status.

First, we address Christopher’s claim that the county court erred in denying his request to 

proceed in forma pauperis on appeal. After the denial of his request for such status, he had 30 

days to appeal the ruling or proceed with the trial action by paying the docket fee. See, Neb. Rev. 

Stat. § 25-2301.02(1) (Reissue 2008); Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004); 

Martin v. McGinn, 265 Neb. 403, 657 N.W.2d 217 (2003). Instead of appealing the denial of his 

request for in forma pauperis status, Christopher paid the docket fee on September 24, 2012. 

Having chosen to pay the docket fee rather than appeal the denial of his request for in forma 

pauperis status, Christopher cannot now be heard to complain of this issue.

August 2012 Case Plan.

Christopher contends that the county court erred in adopting the August 2012 case plan 

which changed the permanency goal from concurrent goals of adoption and reunification to a 

sole goal of adoption. However, before we can reach the merits of Christopher’s claim, we must 

first address a jurisdictional issue raised by the State. 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 Diana M. et al., 

20 Neb. App. 472, 825 N.W.2d 811 (2013); In re Interest of Tayla R., 17 Neb. App. 595, 767 

N.W.2d 127 (2009).

The State contends this court lacks jurisdiction over this appeal because Christopher has 

appealed from an order that was not a final, appealable order. The State claims that the order 

appealed from was not a final, appealable order for the reason that Christopher’s substantial 

rights were not affected because the order continued the permanency objective of adoption and 

Christopher could still avail himself of services pending a trial on the termination of his parental 

rights.

For an appellate court to acquire jurisdiction of an appeal, there must be a final order 

entered by the tribunal from which the appeal is taken. In re Interest of Tayla R., supra. 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. In re Interest of Diana M. 

et al., supra. We are considering whether the instant case falls under the second category listed 

above, i.e., whether the order appealed from was an order affecting a substantial right made 

during a special proceeding. There is no question that the order was made during a special 

proceeding as it is well established that a proceeding before a juvenile court is a special 

proceeding for appellate purposes. Id. Thus, we must determine whether the order affected a 

substantial right of Christopher. “‘[W]hether 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.’” In re Interest of Diana M. et al., 20 Neb. App. at 478, 825 N.W.2d at 816, quoting 

In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991). To determine whether the order 

- 4 -
can be appealed, it is necessary to consider the nature of the order and what parental rights, if 

any, the order affected. In re Interest of Diana M. et al., supra; In re Interest of Tayla R., supra.

“‘[A] judicial determination made following an adjudication in a special proceeding 

which affects the substantial rights of parents to raise their children is a final, appealable order.’” 

In re Interest of Sarah K., 258 Neb. 52, 56, 601 N.W.2d 780, 783 (1999). However, in juvenile 

cases, where an order from a juvenile court is already in place and a subsequent order merely 

extends the time for which the previous order is applicable, the subsequent order by itself does 

not affect a substantial right and does not extend the time in which the original order may be 

appealed. In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289 (2000); In re 

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

(2013). Thus, a dispositional order which merely continues a previous determination is not an 

appealable order. In re Interest of Sarah K., supra; In re Interest of Diana M. et al., supra. For 

example, a dispositional order which merely continues a previous determination of where a child 

will be placed is not an appealable order. In re Interest of Tayla R., 17 Neb. App. 595, 767 

N.W.2d 127 (2009). Whether an order modifying a permanency plan is a final, appealable order 

is not always clear. In re Interest of Diana M. et al., supra.

There are several cases which have discussed whether a change in a permanency plan 

objective results in a final, appealable order. Most recently, in In re Interest of Diana M. et al., 

supra, this court held that the modification of a permanency plan objective from reunification to 

guardianship/adoption, coupled with an order to cease all reasonable efforts at reunification, 

affected the mother’s right to reunification with the children and that thus, the order appealed 

from was a final, appealable order.

Conversely, in In re Interest of Tayla R., supra, the mother appealed from a review order 

continuing out-of-home placement for her three oldest children and changing the primary 

permanency plan goal from reunification to adoption, but containing a rehabilitation plan with 

the same terms from prior orders. In determining whether the change in the permanency goal 

from reunification to adoption affected a substantial right of the mother, a pertinent inquiry was 

whether there was still a plan allowing her to take steps to reunite with the children. Id. This 

court concluded that the order appealed from was not a final order, because even though the 

permanency objective was changed from reunification, the order, taken as a whole, did not affect 

the mother’s substantial rights because the order appealed from contained the same terms 

contained in a prior order; the mother’s status and visitation did not change; and the order 

implicitly provided the mother with an opportunity for reunification by complying with the terms 

of the rehabilitation plan, which terms had not changed from the previous order. Id.

Although not addressing a change in a permanency goal plan, several other cases are 

helpful in the analysis of whether an order has affected a substantial right of a parent. The 

Nebraska Supreme Court has determined that an initial dispositional order which did not include 

a rehabilitation plan for the parents deprived them of any opportunity for reunification with their 

child and, thus, affected a substantial right. In re Interest of Tabatha R., 255 Neb. 818, 587 

N.W.2d 109 (1998).

In contrast, the Supreme Court determined that an order which continued or extended the 

terms of a previous dispositional order which had called for the minor children to be placed in 

the custody of DHHS, with placement to remain with the grandparents and appropriate visitation 

- 5 -
for the mother, did not affect the mother’s substantial parental rights where the only difference in 

case plans was that the more recent case plan provided for an extended time period for the 

grandparents to become coguardians. In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 

N.W.2d 289 (2000). Similarly, a juvenile court order adopting a permanency plan which 

provided for the possibility of reunification with the parents by providing that the minor child be 

placed in long-term foster care transitioning to independent living with supervised visitation with 

the parents, which order also found that termination proceedings should not be initiated against 

the parents, did not disadvantage the parents or affect the parents’ substantial rights where the 

terms of the order appealed from merely repeated the essential terms of the previous juvenile 

court order; the order did not change the parents’ status or the plan to which the parents and child 

were previously subject. In re Interest of Sarah K., 258 Neb. 52, 601 N.W.2d 780 (1999).

Likewise, a juvenile court order referring a case to the State for the filing of a motion to 

terminate a mother’s parental rights is not a final, appealable order because it does not affect a 

substantial right of the parent. In re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d 231 

(2002). Although such an order alters the procedural posture of the juvenile proceeding, it did 

not adjudicate or affect any substantial right of the mother. Id. “The filing of a petition to 

terminate parental rights, standing alone, does not affect any parental right.” Id. at 706, 651 

N.W.2d at 237.

With the foregoing precedent in mind, to determine whether the review order can be 

appealed in the instant case, we consider the nature of the court’s August 2012 order, and what 

parental rights, if any, were affected by that order. Christopher has appealed from the court’s 

August 2012 review order which modified the permanency goals for the minor children from 

reunification and adoption to adoption only. As set forth in our analysis above, the modification 

of the permanency goal, without more, is not enough to establish that a substantial right of 

Christopher has been affected. See In re Interest of Tayla R., 17 Neb. App. 595, 767 N.W.2d 127 

(2009) (order appealed from not final order, because even though permanency objective changed 

from reunification, order taken as whole did not affect mother’s substantial rights). Thus, we 

look to whether the court’s order, taken as a whole, affected Christopher’s substantial rights.

In addition to the permanency change, Christopher also contends that the court’s August 

2012 order modified his visitation. He argues that the evidence presented at the August hearing, 

including his psychological evaluation, recommended that the court should expect him to 

maintain stability in his living situation, relationships, work, and probation for an extended 

period of time, at least 1 or 2 years, prior to allowing unsupervised visits or placing the children 

with him. However, despite the evidence presented at the hearing, neither the court’s August 

2012 order nor the August 2012 case plan which was adopted by the court includes the 

aforementioned recommendations regarding visitation. In fact, the court’s August 2012 order 

provides just the opposite, i.e., that “[t]he previous order on visitation shall remain in force.” The 

August 2012 order also continued the prior order on custody, and the outcomes and strategies 

relating to Christopher contained in the August 2012 case plan remained unchanged from the 

prior May 2012 case plan. Thus, the only difference between the August 2012 and the May 2012 

case plans was the change in the permanency goal from concurrent goals of adoption and 

reunification to a sole goal of adoption.

- 6 -
Since the sole change in the August 2012 order was the change in the permanency 

objective from reunification and adoption to adoption only, with no other changes, the order 

merely continued a previous determination and did not affect a substantial right of Christopher. 

As such, the order appealed from was not a final, appealable order.

Reasonable Efforts.

Having found that the order appealed from was not a final, appealable order, 

Christopher’s claim that the county court erred in finding that reasonable efforts were made to 

reunify the family is not properly before this court.

CONCLUSION

We conclude that Christopher has waived the issue of the denial of his request for in 

forma pauperis status by choosing to pay the docket fee rather than appeal the denial of his 

request for such status. We further conclude that the court’s August 2012 order is not a final, 

appealable order because it did not affect a substantial right of Christopher. Therefore, this 

appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.

- 7 -