- 197 -

Nebraska Supreme Court Advance S

299 Nebraska Report

IN RE INTEREST OF DANA H.

Cite as 299 Neb. 197

In re Interest of Dana H., 

under 18 years of age

State of Nebraska, appellee,

v. Dana H., appell

___ N.W.2d ___

Filed March 2, 2018. No. S-17-612.

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. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

3. 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.

4. 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.

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

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

6. Final Orders: Words and Phrases: Appeal and Error. A substantial 

right is an essential legal right, not a mere technical right. But, for purposes of appeal, it is not enough that the right itself be substantial; the 

effect of the order on that right must also be substantial.

7. Minors: Proof. The exhaustion requirement of Neb. Rev. Stat. 

§ 43-251.01(7)(a) (Reissue 2016) demands evidence establishing that 

Nebraska Supreme Court Online Library

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

04/26/2018 09:12 AM CDT
- 198 -

Nebraska Supreme Court Advance S

299 Nebraska Report

IN RE INTEREST OF DANA H.

Cite as 299 Neb. 197

no other community-based resources have a reasonable possibility for 

success or that all options for community-based services have been thoroughly considered and none are feasible.

8. ____: ____. The requirement of Neb. Rev. Stat. § 43-251.01(7)(b) 

(Reissue 2016) of a significant risk of harm to a juvenile is satisfied by 

a showing of a reasonable likelihood that the juvenile will suffer a material or tangible detriment.

Appeal from the Separate Juvenile Court of Lancaster 

County: Linda S. Porter, Judge. Affi

Joe Nigro, Lancaster County Public Defender, and Mark D. 

Carraher for appellant.

Joe Kelly, Lancaster County Attorney, and Maureen E. 

Lamski for appellee.

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

Funke, J

Cassel, J.

I. INTRODUCTION

Dana H. timely appeals from two interim juvenile court 

orders, one dictating an out-of-home placement and another 

continuing it. The appeal presents two issues. First, was it 

taken from a final order? It was, because the placement order 

substantially affected a substantial right for an indefinite 

duration. Second, did the placement orders comply with the 

statutory requirements of (1) exhaustion of “[a]ll available 

community-based resources”1 and (2) “significant risk of 

harm to the juvenile or community”2 from maintaining inhome placement? After interpreting the statute, we conclude 

the placement complied with both requirements. Therefore, 

we affirm.

1 Neb. Rev. Stat. § 43-251.01(7)(a) (Reissue 2016).

2 § 43-251.01(7)(b).
- 199 -

Nebraska Supreme Court Advance S

299 Nebraska Report

IN RE INTEREST OF DANA H.

Cite as 299 Neb. 197

II. BACKGROUND

In October 2014, the State filed a supplemental petition 

alleging that as a juvenile, Dana unlawfully possessed a switchblade knife in violation of a city ordinance. The separate juvenile court found the allegations to be true by proof beyond a 

reasonable doubt and determined that Dana was a juvenile as 

defined by Neb. Rev. Stat. § 43-247(1) (Supp. 2015). Dana 

unsuccessfully appealed his adjudication, and no disposition 

order was entered.3

While the appeal was pending, the State filed a second 

supplemental petition alleging that Dana was habitually truant from school. Dana entered a plea of no contest, and the 

separate juvenile court found the allegations to be true by proof 

beyond a reasonable doubt. Final disposition on the second 

supplemental petition was consolidated with disposition of 

the supplemental petition. The court continued the matter and 

entered interim orders.

The court entered numerous successive interim orders, continuing prior orders and requiring further in-home services to 

Dana and his parents, with whom he resided. After the in-home 

services proved ineffective, the court ordered placement at 

Omaha Home for Boys as soon as placement was available. 

It specifically found that reasonable efforts were made and 

all available community resources expended to maintain Dana 

in his home and that it would be contrary to Dana’s welfare 

to remain in the home due to his refusal to attend school or 

cooperate with the offered in-home services. The juvenile 

court continued this interim order and continued the dispositional hearing.

Dana appealed, and we moved the case to our docket.4

3 See In re Interest of Dana H., No. A-15-246, 2015 WL 7733998 (Neb. 

App. Dec. 1, 2015) (selected for posting to court website).

4 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
- 200 -

Nebraska Supreme Court Advance S

299 Nebraska Report

IN RE INTEREST OF DANA H.

Cite as 299 Neb. 197

III. ASSIGNMENTS OF ERROR

Dana assigns, restated, that the juvenile court erred when it 

ordered him to be removed from his family home when there 

was insufficient evidence that all community-based resources 

had been exhausted and that maintaining him in his family home presented a significant risk of harm to him or 

the community.

IV. 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.5

[2] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter 

of law.6

V. ANALYSIS

1. Jurisdi

[3] The State argues that the interim orders providing for 

placement of Dana in a group home were not final, appealable orders. 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.7

Our opinion in In re Interest of Zachary B.8 accurately sets 

forth the analysis for the finality of orders in juvenile court 

proceedings. And as discussed in that case, it is necessarily a 

fact intensive inquiry.

[4] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the 

three types of final orders which may be reviewed on appeal 

5 In re Interest of Lilly S. & Vincent S., 298 Neb. 306, 903 N.W.2d 651 

(2017).

6 In re Interest of Zachary B., ante p. 187, ___ N.W.2d ___ (2018).

7 In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017).

8 In re Interest of Zachary B., supra note 6.
- 201 -

Nebraska Supreme Court Advance S

299 Nebraska Report

IN RE INTEREST OF DANA H.

Cite as 299 Neb. 197

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.9 Here, only 

the second type could apply.

[5,6] A proceeding before a juvenile court is a “special 

proceeding” for appellate purposes.10 And a substantial right 

is an essential legal right, not a mere technical right.11 But, 

for purposes of appeal, it is not enough that the right itself be 

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

substantial.12

Here, our analysis differs somewhat from the situation in 

In re Interest of Zachary B. There, because the juvenile was 

not residing with a parent, the juvenile court’s interim order 

affected only a purely statutory right to remain in his home. 

Moreover, the order’s effect upon the right was not substantial.13 Here, the same statutory right applied. But because Dana 

was residing with his parents, a constitutionally protected right 

also applied.14 And the situation here also differed in that the 

effect of the order on those rights was substantial.

In this regard, we are guided in our analysis by our decision 

in In re Interest of Becka P. et al.15 In that case, we reviewed 

the language of a juvenile court’s orders appointing an educational surrogate and the court’s remarks on the record to find 

an appealable order where there was no limit on the duration 

or scope of the educational surrogate’s appointment. Here, the 

9 In re Interest of Becka P. et al., supra note 7.

10 Id.

11 See id.

12 See In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).

13 See, § 43-251.01(7); In re Interest of Zachary B., supra note 6.

14 See In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004).

15 In re Interest of Becka P. et al., supra note 7.
- 202 -

Nebraska Supreme Court Advance S

299 Nebraska Report

IN RE INTEREST OF DANA H.

Cite as 299 Neb. 197

juvenile court’s remarks likewise indicated no limit on the 

duration of the out-of-home placement.

Theoretically, the juvenile court could change its mind 

about placement upon entering a dispositional order. But the 

court stated that it wanted “to make sure that [Dana is] settled 

into the program before we enter final disposition.” This demonstrated that it intended the order to be of indefinite duration 

and to be continued in the final disposition. Indeed, the court’s 

record reveals a practice of simply continuing or modifying 

prior interim orders, by continuing the dispositional hearing 

12 times over the course of a year before it entered the orders 

at issue.

Evidence of the average length of placements at the Omaha 

Home for Boys provides little help in our analysis. The record 

establishes that the average length of stay was anywhere 

between 6 to 14 months. Six months might suggest a mere 

temporary effect, but an out-of-home placement of 14 months 

would substantially affect Dana’s right to reside in his family 

home with his parents. We cannot say that the order contemplated only a temporary, short-term placement.

Because the effect of the juvenile court’s order authorizing placement with the Omaha Home for Boys appears to be 

of indefinite duration and significantly affects a substantial 

right, it was a final, appealable order under § 25-1902. We 

now proceed to consider the merits of the error assigned 

on appeal.

2. Meri

Dana assigns that the juvenile court erred in removing him 

from his family home. He argues that the relevant statutory 

requirements were not met, because there was insufficient evidence that all community-based resources had been exhausted 

and that maintaining him in his family home presented a significant risk of harm to him or the community. After a review 

of the statute and the record, we disagree.
- 203 -

Nebraska Supreme Court Advance S

299 Nebraska Report

IN RE INTEREST OF DANA H.

Cite as 299 Neb. 197

(a) Exhaustion of All Available 

Community-Based Resources

The key subsection provides:

A juvenile alleged to be a juvenile as described in subdivision (1), (2), (3)(b), or (4) of section 43-247 shall not be 

placed out of his or her home . . . unless:

(a) All available community-based resources have been 

exhausted to assist the juvenile and his or her family; and

(b) Maintaining the juvenile in the home presents a 

significant risk of harm to the juvenile or community.16

The interpretation of this particular statute is an issue of 

first impression. But in an earlier case,17 we considered a 

similar statutory requirement. There, the statute allowed for 

the commitment of a juvenile to a youth rehabilitation and 

treatment center—a more restrictive placement than the one 

at issue here—only after the juvenile has exhausted “all levels 

of probation supervision and options for community-based 

services.”18

This comparable requirement “[did] not imply that a juvenile court must ensure that every conceivable probationary 

condition has been tried and failed.”19 Instead, the statute 

required a careful review of the juvenile’s file and record, 

after which the Office of Probation Administration must report 

“whether any such untried conditions of probation or community-based services have a reasonable possibility for success 

or that all levels of probation and options for communitybased services have been studied thoroughly and that none 

are feasible.”20

16 § 43-251.01(7).

17 In re Interest of Nedhal A., 289 Neb. 711, 856 N.W.2d 565 (2014).

18 Neb. Rev. Stat. § 43-286(1)(b)(ii) (Supp. 2013).

19 In re Interest of Nedhal A., supra note 17, 289 Neb. at 716, 856 N.W.2d at 

569.

20 Id.
- 204 -

Nebraska Supreme Court Advance S

299 Nebraska Report

IN RE INTEREST OF DANA H.

Cite as 299 Neb. 197

[7] We apply the same interpretation to the statute before 

us. The exhaustion requirement of § 43-251.01(7)(a) demands 

evidence establishing that no other community-based resources 

have a reasonable possibility for success or that all options for 

community-based services have been thoroughly considered 

and none are feasible. The evidence in the record satisfied 

this requirement.

The juvenile probation officer assigned to work with Dana 

testified that Dana had been under probation supervision for 

several years without improving his school attendance. The 

officer testified that Dana had not cooperated with “tracker 

services” or evening reporting services and had minimally 

cooperated with the provided intensive family preservation 

services. He testified that there were no other appropriate or 

necessary services available to address Dana’s school attendance issues. And although Dana argues that there were other 

in-home community services available, the record demonstrates that similar services had not been successful.

In the same way as in the earlier case, we decline to interpret § 43-251.01(7) to require services that have already been 

proven to be unsuccessful. The record establishes that other 

options for community-based services were thoroughly considered but deemed inappropriate or unnecessary. Accordingly, 

we find that the available community-based resources were 

“exhausted” within the meaning of the statute.

(b) Significant Risk of Harm

Regarding the second requirement, Dana argues that he did 

not pose a significant risk to the community or to himself and 

that his truancy did not amount to a significant risk of harm to 

himself. The State did not argue that Dana posed a significant 

risk of harm to the community. But we disagree with Dana’s 

argument that his behavior posed no significant risk of harm 

to himself. He interprets “harm” too narrowly and disregards 

the juvenile court’s authority and statutory duty to issue orders 

in the child’s best interests.
- 205 -

Nebraska Supreme Court Advance S

299 Nebraska Report

IN RE INTEREST OF DANA H.

Cite as 299 Neb. 197

[8] We understand “harm” to encompass not only physical 

injury and hurt, but also any “material or tangible detriment.”21

Thus, the requirement of § 43-251.01(7)(b) of a significant risk 

of harm to a juvenile is satisfied by a showing of a reasonable 

likelihood that the juvenile will suffer a material or tangible 

detriment. Here, the juvenile court found Dana to be at serious risk of harm and detriment due to his refusal to attend 

school and develop basic life skills while living in the family 

home. This finding is consistent with the public policy behind 

the compulsory education statutes22 and the juvenile court’s 

jurisdiction to intercede where a juvenile is habitually truant 

or otherwise has his or her educational needs neglected by a 

parent or guardian.23

Before ordering out-of-home placement, the juvenile court 

made the correct statutory findings. These findings were supported by the evidence. Upon our de novo review, we find no 

merit to Dana’s arguments.

VI. CONCLUSION

For the reasons set forth above, the orders of the juvenile 

court are affirmed.

Affirme

Wright, J., not participating

21 Black’s Law Dictionary 832 (10th ed. 2014) (defining “harm”).

22 See Neb. Rev. Stat. § 79-201 et seq. (Reissue 2014).

23 See In re Interest of Becka P. et al., supra note 7 (finding juvenile court 

had statutory authority to appoint educational surrogate to direct education 

of children within meaning of § 43-247(3)(a)). See, also, In re Interest of 

Laticia S., 21 Neb. App. 921, 844 N.W.2d 841 (2014) (finding juvenile at 

risk for harm and within meaning of child neglect statute due to missing 

school).