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Nebraska Supreme Court Advance S

300 Nebraska Report

IN RE INTEREST OF PAXTON H.

Cite as 300 Neb. 446

In re Interest of Paxton H., 

under 18 years of age

Nebraska Department of Health and

Services, appellant, v. Pat

and Penny H., appel

___ N.W.2d ___

Filed July 6, 2018. No. S-17-1182.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently 

of the juvenile court’s findings.

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. Juvenile Courts: Costs: Final Orders. An order in a juvenile case 

which directs the Department of Health and Human Services to pay for 

the costs of treatment is a final order for purposes of Neb. Rev. Stat. 

§ 25-1902 (Reissue 2016).

4. Juvenile Courts. Juvenile courts have the authority to assent to and 

dissent from decisions of the Department of Health and Human Services 

with respect to what care, placement, services, and expenditures are in 

the best interests of juveniles under its care and custody.

5. Appeal and Error. Appellate courts will not consider issues on appeal 

that were not presented to or passed upon by the trial court.

Appeal from the Separate Juvenile Court of Lancaster 

County: Toni G. Thorson, Judge. Aff

Douglas J. Peterson, Attorney General, and C.J. Roberts, 

Special Assistant Attorney General, for appellant.

Lisa Gonzalez, of Johnson & Pekny, L.L.C., for appellees.

Nebraska Supreme Court Online Library

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

07/26/2018 01:08 AM CDT
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300 Nebraska Report

IN RE INTEREST OF PAXTON H.

Cite as 300 Neb. 446

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

Papik, JJ., and Johnson, District Ju

Papik, 

The separate juvenile court of Lancaster County ordered the 

Nebraska Department of Health and Human Services (DHHS) 

to arrange and pay for Paxton H., a juvenile in its care and custody, to receive mental health services at a facility in Kansas. 

DHHS challenges that order. While DHHS acknowledges that 

Paxton requires certain services, it contends that Paxton can 

receive those services in Nebraska and that local services 

would better serve his needs. Following our de novo review of 

the record, we determine that the juvenile court’s order was in 

Paxton’s best interests, and we therefore affirm.

BACKGROUND

In the sections below, we set forth how Paxton came into the 

custody of DHHS and the circumstances that led to the order 

at issue in this appeal.

Paxton’s Placement in 

DHHS Custody.

On December 29, 2014, the State of Nebraska filed a petition alleging that Paxton, then 11 years old, was without 

proper support through no fault of his parents and therefore was a child within the meaning of Neb. Rev. Stat. 

§ 43-247(3)(a) (Cum. Supp. 2014). Following a hearing, the 

juvenile court adjudicated Paxton as a child within the meaning of § 43-247(3)(a).

In its adjudication order, the juvenile court noted Paxton’s 

diagnoses of posttraumatic stress disorder, attention deficit 

hyperactivity disorder, traumatic brain injury, disruptive mood 

dysregulation disorder, and reactive attachment disorder. The 

juvenile court found that Paxton had been placed outside the 

family home more than once due to assaultive, defiant, and 

destructive behaviors that his parents could not control. It 
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300 Nebraska Report

IN RE INTEREST OF PAXTON H.

Cite as 300 Neb. 446

further found that Paxton had recently returned to the family 

home from a residential treatment facility and, upon his return, 

resumed his assaultive behavior. The juvenile court determined 

that Paxton’s parents could not safely maintain him in their 

home or provide the treatment and services he needed. The 

juvenile court ordered DHHS to maintain Paxton in its care 

and custody, pending placement at a psychiatric residential 

treatment facility.

Paxton’s Placements at 

KidsTLC in Kansas.

As a result of disruptions at past placements, no residential treatment facility in Nebraska would accept Paxton, but 

KidsTLC, a residential treatment facility in Olathe, Kansas, 

would. Paxton was admitted there in January 2015. Although 

the record does not disclose Paxton’s discharge date, it appears 

that he remained at KidsTLC for about a year.

Just a few months after returning to his parents’ home from 

KidsTLC, Paxton was again removed due to aggressive behaviors. After placements in multiple foster homes and in respite 

care, Paxton was returned to KidsTLC in July 2016.

July 2017 Review Hearing.

In July 2017, the juvenile court conducted a review hearing. 

Paxton was still at KidsTLC at this point, but Laura Milburn, 

Paxton’s DHHS caseworker, testified at the hearing that he was 

having home visits with his parents almost every other week 

and that these visits were going well. She stated that KidsTLC 

recommended that Paxton transition to his parents’ home in 

August 2017.

Milburn acknowledged that DHHS accepted the recommendations of a recent psychological evaluation of Paxton. 

This evaluation recommended that Paxton receive various 

services and treatment including regular meetings with a 

physician and psychiatrist to manage his psychotropic medications as well as individual psychotherapy. Milburn also 
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300 Nebraska Report

IN RE INTEREST OF PAXTON H.

Cite as 300 Neb. 446

acknowledged that, if Paxton were discharged to his parents’ 

home, he would need services at school, individual therapy, 

and weekly bloodwork to monitor his medications, as well as 

other services. While Milburn had initiated the processes to 

obtain some of these services, none of them were in place for 

Paxton at the time of the July 2017 hearing.

In its order following the July 2017 hearing, the juvenile 

court approved DHHS’ case plan, as modified. In particular, 

the juvenile court ordered Paxton’s transition home upon 

discharge from KidsTLC. The juvenile court ordered DHHS 

“to ensure that necessary services are available to Paxton 

. . . immediately upon his discharge to the family home.” 

The juvenile court went on to provide a nonexclusive list of 

necessary services consistent with the recent psychological 

evaluation.

Dispute Regarding 

Paxton’s Care.

Paxton was discharged from KidsTLC to his parents’ home 

on September 30, 2017. Shortly thereafter, a dispute arose 

between Paxton’s parents and DHHS regarding his care. 

Paxton’s parents asked DHHS to arrange for Paxton to periodically travel to and participate in a transition program at 

KidsTLC. Paxton’s therapist during his time at KidsTLC 

believed that Paxton’s participation would smooth his transition home and assist him in remaining there. DHHS refused to 

arrange for participation in the KidsTLC transition program. 

DHHS personnel concluded that Paxton and his family should 

utilize services in Nebraska, rather than services multiple hours 

away in Kansas.

Paxton’s parents then filed a motion for an order directing DHHS to arrange and pay for him to participate in 

the KidsTLC transition program. The juvenile court held a 

hearing on that motion on October 10, 2017. At the hearing, Milburn acknowledged that DHHS had declined to provide the KidsTLC services requested by Paxton’s parents 
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300 Nebraska Report

IN RE INTEREST OF PAXTON H.

Cite as 300 Neb. 446

and recommended by his therapist. She testified that DHHS 

regarded respite providers in Nebraska to be more suitable for 

Paxton’s transition. Milburn conceded, however, that DHHS 

had not provided services immediately upon Paxton’s discharge, as ordered by the juvenile court. She also admitted 

that Paxton’s Medicaid had not yet been activated and that 

as a result, Paxton could not see the therapist his parents had 

identified to work with him, obtain a refill of his medication, or see a psychiatrist concerning his medication. Milburn 

acknowledged that Paxton had not received any type of therapy in the 11 days since his discharge from KidsTLC.

At the close of the hearing, the juvenile court observed 

that DHHS had not presented any viable alternative to the 

KidsTLC transition program. The juvenile court noted that it 

did not have information as to how long Paxton would need 

services at KidsTLC, but that it was “in everyone’s best interest” that Paxton eventually receive services in Nebraska.

In an order entered on October 11, 2017, the juvenile court 

found that it was in Paxton’s best interests to participate in the 

KidsTLC transition program and ordered that DHHS immediately arrange and pay for him to do so. It observed that DHHS 

had not provided an alternative plan and that such a plan was 

“critical” given previous failed transitions home as a result 

of a gap in services. While directing Paxton’s participation in 

the KidsTLC transition program, the juvenile court indicated 

that it would continue to monitor services provided to Paxton 

and review whether participation in the KidsTLC transition 

program was necessary. The juvenile court scheduled a review 

hearing for January 2018 and added that the review hearing 

could be advanced upon request of the parties. DHHS then 

filed this appeal.

ASSIGNMENT OF ERROR

DHHS assigns, rephrased, that the juvenile court erred in 

ordering DHHS to arrange and pay for Paxton to participate in 

the KidsTLC transition program.
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300 Nebraska Report

IN RE INTEREST OF PAXTON H.

Cite as 300 Neb. 446

STANDARD OF REVIEW

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

the record and reaches a conclusion independently of the juvenile court’s findings. In re Interest of Josue G., 299 Neb. 784, 

910 N.W.2d 159 (2018).

ANALYSIS

Jurisdiction.

[2,3] Before reaching the merits of DHHS’ appeal, we pause 

to confirm our jurisdiction to do so. 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 Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 

(2017). 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.” We have held that an 

order directing DHHS to pay for the costs of treatment is a 

final order for purposes of Neb. Rev. Stat. § 25-1902 (Reissue 

2016). See, In re Interest of J.M.N., 237 Neb. 116, 464 N.W.2d 

811 (1991); In re Interest of B.M.H., 233 Neb. 524, 446 

N.W.2d 222 (1989), citing In re Interest of G.B., M.B., and 

T.B., 227 Neb. 512, 418 N.W.2d 258 (1988). We thus have 

jurisdiction here.

Merits of DHHS’ Appeal.

Turning now to the merits, DHHS argues that the juvenile 

court erred in ordering DHHS to arrange and pay for Paxton 

to participate in a transition program at KidsTLC following 

his discharge. DHHS contends that it is not in Paxton’s best 

interests to participate in a transition program several hours 

from his parents’ home. Instead, DHHS asserts that it would be 

better for Paxton to receive “respite support” from providers in 

Nebraska. Brief for appellant at 10.

DHHS does not have the authority to unilaterally determine 

where Paxton should be placed and how he should be treated. 
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Nebraska Supreme Court Advance S

300 Nebraska Report

IN RE INTEREST OF PAXTON H.

Cite as 300 Neb. 446

Neb. Rev. Stat. § 43-285 (Reissue 2016) grants broad authority 

to juvenile courts to make orders which are in the best interests of juveniles under their jurisdiction. Section 43-285(1) 

provides, in relevant part:

When the court awards a juvenile to the care of [DHHS], 

. . . the juvenile shall, unless otherwise ordered, become 

a ward and be subject to the legal custody and care of 

[DHHS]. . . . [DHHS] shall have authority, by and with 

the assent of the court, to determine the care, placement, medical services, psychiatric services, training, 

and expenditures on behalf of each juvenile committed 

to it.

(Emphasis supplied.)

[4] Through § 43-285(1), the Legislature removed from 

DHHS complete control of minors whose care was given to 

DHHS under the juvenile code. See In re Interest of Veronica 

H., 272 Neb. 370, 721 N.W.2d 651 (2006). Pursuant to 

§ 43-285, the juvenile court has the authority to assent to and 

dissent from decisions of DHHS with respect to what care, 

placement, services, and expenditures are in the best interests of juveniles under its care and custody. In re Interest of 

Veronica H., supra. We agree with the juvenile court’s exercise 

of that authority here.

Paxton has previously struggled with transitions from residential treatment facilities to his parents’ home. In light of 

this history and the recommendations of a psychologist, the 

juvenile court, after its July 2017 review hearing, ordered 

DHHS to provide Paxton with various support and mental 

health services immediately upon his discharge from KidsTLC. 

DHHS personnel were aware of the specific services and the 

urgency required. Yet as of the date of the hearing at issue, 

11 days after Paxton’s discharge from KidsTLC, DHHS had 

not arranged for these services to be provided to Paxton. By 

contrast, the KidsTLC transition program was identified as 

ready and available to assist Paxton in transitioning home. 

Given Paxton’s undisputed need for immediate services and 
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IN RE INTEREST OF PAXTON H.

Cite as 300 Neb. 446

the fact that KidsTLC was the only identifiable provider of 

such services at the time of the hearing, we agree that it was 

in Paxton’s best interests to participate immediately in the 

KidsTLC transition program.

DHHS’ argument that Paxton would be better served by 

respite care provided locally does not alter our conclusion. 

This argument hinges on the faulty premise that local respite 

care was an available alternative as of the hearing on this matter. But the juvenile court was not presented with a choice 

between the transition program at KidsTLC and ideal or even 

functioning local respite care. Its options were to direct that 

Paxton immediately receive transition services, which all agree 

he urgently required, at KidsTLC, or to allow him to continue 

to go without services until DHHS could arrange for them to 

be provided locally. Faced with those alternatives and aware 

of Paxton’s history, we do not hesitate to find that the juvenile 

court acted in Paxton’s best interests.

[5] Neither are we moved by DHHS’ contention that, in the 

long term, Paxton would be better served by local care than 

care provided at KidsTLC. On this point, there actually appears 

to be some agreement among everyone involved that, at some 

time, it would be best for Paxton to leave the KidsTLC program and receive any necessary care locally. But the question 

of Paxton’s long-term participation in the KidsTLC program 

was not presented to or decided by the juvenile court in the 

order under appeal. Appellate courts will not consider issues on 

appeal that were not presented to or passed upon by the trial 

court. In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 

N.W.2d 672 (2003).

The juvenile court’s statement that it was in “everyone’s 

best interest” that Paxton eventually receive local services, as 

well as its stated willingness to continue to monitor whether 

services at KidsTLC are necessary, strongly suggests that the 

juvenile court is open to considering, presumably with the aid 

of new evidence, whether it remains in Paxton’s best interests 

to receive services at KidsTLC. This court, however, is not the 
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300 Nebraska Report

IN RE INTEREST OF PAXTON H.

Cite as 300 Neb. 446

place for that decision to be made in the first instance. We are 

limited to reviewing the decision of the juvenile court based on 

the record available to us. Having performed that review, we 

find no basis to disagree with the juvenile court.

CONCLUSION

Upon our de novo review of the record, we conclude that 

the juvenile court did not err in ordering DHHS to arrange and 

pay for Paxton to receive services at KidsTLC. Accordingly, 

we affirm.

Affirme