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302 Nebraska Report

IN RE INTEREST OF MAXIMUS B.

Cite as 302 Neb. 365

In re Interest of Maximus B., 

under 18 years of age

State of Nebraska, appellant

v. Maximus B., appell

___ N.W.2d ___

Filed March 1, 2019. No. S-18-410.

1. Judgments: Jurisdiction: Appeal and Error. Determination of a jurisdictional issue which does not involve a factual dispute is a matter of 

law which requires an appellate court to reach its conclusions independent from a trial court.

2. 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.

3. 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.

4. Juvenile Courts: Final Orders: Appeal and Error. A proceeding 

before a juvenile court is a “special proceeding” for appellate purposes.

5. Final Orders: Appeal and Error. Numerous factors determine when 

an order affects a substantial right for purposes of appeal. Broadly, 

these factors relate to the importance of the right and the importance 

of the effect on the right by the order at issue. It is not enough that the 

right itself be substantial; the effect of the order on that right must also 

be substantial.

6. Final Orders. Whether the effect of an order is substantial depends 

on whether it affects with finality the rights of the parties in the subject matter.

Nebraska Supreme Court Online Library

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

03/08/2019 01:05 AM CST
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302 Nebraska Report

IN RE INTEREST OF MAXIMUS B.

Cite as 302 Neb. 365

7. Juvenile Courts: Minors. The substantial right of the State in a juvenile proceeding is derived from its parens patriae interest, and the State 

has a right to protect the welfare of its resident children.

Appeal from the Separate Juvenile Court of Douglas County: 

Douglas F. Johnson, Judge. Appeal dismis

Donald W. Kleine, Douglas County Attorney, Elizabeth 

McClelland, Mark P. Hanna, and Joseph Fabian, Senior 

Certified Law Student, for appellant.

No appearance for appellee.

Heavican, C.J., Miller-Lerman, Cassel, St

Papik, and Freudenberg,

Miller-Lerman

NATURE OF CASE

The State of Nebraska appeals the order of the separate 

juvenile court of Douglas County which vacated a previous 

adjudication order based on acceptance of a “plea of no contest” to allegations made by the State against Maximus B. 

in an amended petition filed under Neb. Rev. Stat. § 43-247 

(Reissue 2016). Specifically, the juvenile court determined that 

a “plea of no contest” is not a permitted answer under Neb. 

Rev. Stat. § 43-279 (Reissue 2016), where the petition alleges 

that the child is a juvenile violator under § 43-247. We conclude that the juvenile court’s order which vacated its previous 

order of adjudication and set the matter for further proceedings 

was not a final order appealable by the State, and we therefore 

dismiss this appeal for lack of jurisdiction.

STATEMENT OF FACTS

On October 6, 2017, the State filed a petition in the juvenile court alleging that Maximus, born in August 2002, was 

within § 43-247, because in May, he had committed sexual 

assault in the first degree, a Class II felony under Neb. Rev. 
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302 Nebraska Report

IN RE INTEREST OF MAXIMUS B.

Cite as 302 Neb. 365

Stat. § 28-319(1)(a) (Reissue 2016). On November 1, Maximus 

appeared in court and entered a denial to the allegations in the 

State’s petition. On November 16, the juvenile court filed a 

pretrial order in which it, inter alia, set a date for an adjudication hearing.

On January 25, 2018, the date the juvenile court had set for 

adjudication, the State filed an amended petition in which it 

alleged that Maximus was a juvenile violator under § 43-247, 

because in May 2017, he had committed the offense of disturbing the peace, a Class III misdemeanor under Neb. Rev. Stat. 

§ 28-1322 (Reissue 2016). Maximus and his parents appeared 

before the juvenile court. It should be noted that the juvenile 

court judge who presided at the January 25 adjudication was 

not the same judge who had presided at Maximus’ first appearance at which a pretrial order had been filed and who subsequently vacated the adjudication order.

At the adjudication hearing, Maximus stated that he wished 

to enter a “plea of no contest” to the allegations in the amended 

petition. After questioning Maximus and his parents and after 

determining that the State had presented a sufficient factual 

basis, the juvenile court accepted Maximus’ “plea of no contest” and found him to be under its jurisdiction. The court set 

a date for a disposition hearing. The court filed an order that 

same day setting forth its findings and orders.

The disposition hearing was held on March 22, 2018. The 

juvenile court heard arguments regarding disposition and took 

the matter under advisement. On March 27, the juvenile court 

filed an order in which it stated that it had reviewed the case 

procedural history and noted that Maximus had entered a 

“no contest plea” to the allegations in the amended petition. 

The court noted that although Neb. Rev. Stat. § 43-279.01(3) 

(Reissue 2016) allowed the court in an abuse or neglect case 

to “accept an in-court admission, an answer of no contest, or a 

denial from any parent, custodian, or guardian,” § 43-279 did 

not allow an alleged juvenile violator to enter a no contest plea. 

The court noted that § 43-279 limited the juvenile violator to 
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IN RE INTEREST OF MAXIMUS B.

Cite as 302 Neb. 365

an admission or denial. See § 43-279(1) and (2). The court 

therefore vacated the January 25 adjudicatory finding and 

order. As a result of its ruling which vacated the previous order 

of adjudication, the court stated that the disposition hearing 

was moot, and it set a date for a formal pretrial hearing.

The State appeals the March 27, 2018, order which vacated 

the January 25 adjudication order.

ASSIGNMENT OF ERROR

The State claims, consolidated and restated, that the juvenile court erred when it determined that a plea of no contest 

is not permitted under § 43-279 and vacated the order of 

adjudication.

STANDARD OF REVIEW

[1] Determination of a jurisdictional issue which does not 

involve a factual dispute is a matter of law which requires 

an appellate court to reach its conclusions independent from 

a trial court. Sandoval v. Ricketts, ante p. 138, 922 N.W.2d 

222 (2019).

ANALYSIS

[2] 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 Paxton H., 300 Neb. 446, 915 

N.W.2d 45 (2018). We conclude that the March 27, 2018, order 

from which this case arises is not a final order appealable by 

the State, and we therefore dismiss this appeal.

Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016), which governs appellate jurisdiction for orders of the juvenile courts, is 

applicable to this case. Section 43-2,106.01(1) provides in part 

that “[a]ny final order or judgment entered by a juvenile court 

may be appealed to the Court of Appeals in the same manner 

as an appeal from district court to the Court of Appeals.” And 

§ 43-2,106.01(2) provides that “[a]n appeal may be taken by 
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IN RE INTEREST OF MAXIMUS B.

Cite as 302 Neb. 365

. . . (d) The county attorney or petitioner, except that in any 

case determining delinquency issues in which the juvenile has 

been placed legally in jeopardy, an appeal of such issues may 

only be taken by exception proceedings pursuant to sections 

29-2317 to 29-2319.” Reading these subsections together, it is 

clear that whether the State seeks appellate review by appeal—

as in this case—or by exception proceedings, the order or 

judgment must be final as required under the introductory 

language of § 43-2,106.01(1). We therefore consider whether 

the juvenile court’s order which vacated its earlier order was a 

final order that was appealable by the State, and we need not 

consider whether the appropriate path was by appeal or exception proceedings.

[3,4] 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. In re 

Interest of Zachary B., 299 Neb. 187, 907 N.W.2d 311 (2018). 

Neither the first nor third category applies here, and therefore, 

we examine whether under the second category, the juvenile 

court’s order is an order affecting a substantial right made during a special proceeding. A proceeding before a juvenile court 

is a “special proceeding” for appellate purposes, see id., and 

therefore, in order to determine whether the March 27, 2018, 

order is a final order, we must determine whether the order 

affected a substantial right of the State.

[5,6] Numerous factors determine when an order affects a 

substantial right for purposes of appeal. In re Interest of Noah 

B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017). Broadly, 

these factors relate to the importance of the right and the 

importance of the effect on the right by the order at issue. Id. 

It is not enough that the right itself be substantial; the effect 
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IN RE INTEREST OF MAXIMUS B.

Cite as 302 Neb. 365

of the order on that right must also be substantial. Id. Whether 

the effect of an order is substantial depends on whether it 

affects with finality the rights of the parties in the subject 

matter. Id.

[7] We have recognized that the substantial right of the State 

in a juvenile proceeding is derived from its parens patriae 

interest and that the State has a right to protect the welfare 

of its resident children. See id. So, the inquiry in the present 

case is whether the March 27, 2018, order substantially diminished the right of the State to pursue its obligations regarding Maximus.

We recently considered appealability in In re Interest of 

Noah B. et al., supra. In that case, the State sought to appeal an 

order in which the juvenile court had dismissed a supplemental 

petition seeking adjudication under § 43-247(3)(a) based on 

allegations that a parent had subjected his children to sexual 

abuse. We determined that the order affected a substantial right 

of the State and was a final, appealable order, because the 

“order dismissed the supplemental petition in its entirety with 

no leave to amend, thus foreclosing the State from pursuing 

adjudication and disposition on grounds of sexual abuse, and 

preventing the State from seeking to protect the children from 

such abuse.” In re Interest of Noah B. et al., 295 Neb. at 775, 

891 N.W.2d at 119-20.

By contrast, the March 27, 2018, order in this case vacated 

the prior order of adjudication, but it did not dismiss the 

operative petition for adjudication, and instead, it set a date 

for further proceedings in the case. In the instant matter, the 

terms of the March 27 order did not foreclose the State from 

pursuing adjudication and disposition based on the allegations 

regarding Maximus, and consequently, it did not affect with 

finality the rights of the State.

CONCLUSION

We conclude that the juvenile court’s order vacating its 

previous order of adjudication and setting a date for further 
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IN RE INTEREST OF MAXIMUS B.

Cite as 302 Neb. 365

proceedings in the case was not a final order appealable 

by the State. We therefore dismiss this appeal for lack of 

jurisdiction.

Appeal dismiss

Freudenberg, J., concurrin

I write separately only to note concern regarding a juvenile 

court’s acceptance of a nolo contendere or no contest plea in 

certain proceedings. Statutorily, there are limited responses 

available to juveniles after petitions are filed in juvenile court 

alleging violations under Neb. Rev. Stat. § 43-247(1), (2), 

(3)(b), or (4) (Reissue 2016). Neb. Rev. Stat. § 43-279(1) 

(Reissue 2016) allows a juvenile to enter an admission to 

all or part of the allegations made in the petition. Section 

43-279(2) sets forth the juvenile court procedures when juveniles deny the allegations contained in the petition or stand 

mute. However, the Legislature has not established the option 

for a juvenile to enter a nolo contendere or no contest 

response under this statute. This statutory absence is further 

highlighted by the Legislature’s decision in Neb. Rev. Stat. 

§ 43-279.01 (Reissue 2016) to make no contest pleas available to parents, custodians, or guardians in § 43-247(3)(a) and 

(6) proceedings.

While such issue is not reached in the majority opinion, 

I felt it important to highlight the relevant statutory language which would have been considered had the issue been 

reached.