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299 Nebraska Report

IN RE INTEREST OF ZACHARY B.

Cite as 299 Neb. 187

In re Interest of Zachary B., a

under 18 years of age

State of Nebraska, appellee,

v. Zachary B., appella

___ N.W.2d ___

Filed March 2, 2018. No. S-17-466.

1. 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.

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. Final Orders: Words and Phrases. A substantial right is an essential 

legal right, not a mere technical right.

5. Constitutional Law: Minors. Nebraska law as reflected in Neb. Rev. 

Stat. § 43-251.01(7) (Reissue 2016) recognizes that a juvenile has an 

essential legal right, and therefore a substantial right, to remain in his or 

her home.

6. Final Orders: Appeal and Error. In analyzing whether a substantial right was affected by a court order, it is not enough that the right 

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

be substantial.

Nebraska Supreme Court Online Library

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

04/13/2018 01:14 AM CDT
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IN RE INTEREST OF ZACHARY B.

Cite as 299 Neb. 187

7. 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.

8. Final Orders: Minors: Appeal and Error. Orders which temporarily 

suspend a juvenile’s right to stay in the home for a brief period of time 

and do not purport to determine the juvenile’s placement with finality do 

not affect a substantial right and are therefore not appealable.

Appeal from the Separate Juvenile Court of Lancaster 

County: Reggie L. Ryder, Judge. Appeal dismis

Joe Nigro, Lancaster County Public Defender, and Sarah 

Safarik for appellant.

Joe Kelly, Lancaster County Attorney, and Margeaux K. Fox 

for appellee.

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

Funke, J

Miller-Lerman

NATURE OF CASE

Zachary B., a juvenile, appeals the order of the separate 

juvenile court of Lancaster County which ordered that he be 

removed from his family home and placed in Boys Town. 

Because the juvenile court’s order was not a final order, we 

dismiss this appeal for lack of jurisdiction.

STATEMENT OF FACTS

In March 2016, the juvenile court adjudicated Zachary, 

who was born in April 2000, to be a juvenile as defined by 

Neb. Rev. Stat. § 43-247(3)(b) (Supp. 2015). Zachary admitted to the State’s charge that he had been truant from school 

between the dates of August 12 and December 15, 2015. In 

June 2016, Zachary was placed on probation for a period of 

15 months, with placement in the family home. The court 

ordered that Zachary’s probation was subject to certain terms 

and conditions, including, inter alia, that he “[a]ttend school 

regularly . . . without truancy or suspension . . . .”
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IN RE INTEREST OF ZACHARY B.

Cite as 299 Neb. 187

In January 2017, the State moved to revoke Zachary’s 

probation. The State alleged that he had violated conditions 

of his probation by failing to attend school regularly and by 

failing to cooperate with services arranged by his probation 

officer. Zachary admitted to the violations at a hearing held 

February 24. In an order entered after the hearing, the juvenile 

court found Zachary’s admission to be freely, voluntarily, and 

knowingly made and it found that a factual basis existed for 

his admission; however, the juvenile court deferred “ruling on 

whether or not to revoke [Zachary’s] probation pending the 

completion of an updated predisposition report.” The court 

continued the case to April 12.

After the hearing on April 12, 2017, the juvenile court 

entered an order which stated that “[d]isposition was continued for good cause.” The court found that since the time 

Zachary was placed on probation in June 2016, “numerous 

services have been provided to the family, including in-home 

counseling and tracker services,” but that “[d]espite those 

efforts, [Zachary] has not been attending school, despite his 

family’s belief that he has.” The court found that Zachary 

had missed at least 131 of the 152 scheduled days of the current school year and that when he did not go to school, he 

stayed home. The court also found that the services that had 

been provided had been “unsuccessful due to lack of cooperation by [Zachary] and/or his family” and that no services 

had been identified that would “change the dynamics within 

the home.”

The court then found that “[a]ll relevant community-based 

services have been utilized and exhausted to assist [Zachary] 

and his family.” The court further found that “[m]aintaining 

[Zachary] in the home is not only contrary to his health, safety, 

and welfare, but it presents a significant risk of harm . . . with 

regards to his education and his future” and that if Zachary 

remained in the home, “he will not attend school and he will 

never graduate high school.” Although the court did not cite 

the statute, it appears that these findings were prompted by 
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IN RE INTEREST OF ZACHARY B.

Cite as 299 Neb. 187

Neb. Rev. Stat. § 43-251.01 (Reissue 2016), which provides in 

relevant part:

All placements and commitments of juveniles for evaluations or as temporary or final dispositions are subject to 

the following:

. . . .

(7) 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 as a dispositional 

order of the court 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.

In the April 12, 2017, order, in addition to reflecting 

§ 43-251.01(7), the court cited Neb. Rev. Stat. § 43-286 

(Reissue 2016) as authorizing the court to “continue the disposition portion of the hearing, from time to time upon such 

terms and conditions as the court may prescribe, and place 

the juvenile in a suitable family home or institution.” The 

court determined that Boys Town was a suitable placement 

for Zachary and that such placement was in his best interests. 

The court stated that under the authority of § 43-286, it was 

“ordering that disposition be continued and that Zachary . . . be 

placed at Boys Town as soon as possible” and that he “follow 

the rules of Boys Town once placement takes place.” The court 

ordered that the hearing on the motion to revoke probation was 

continued to June 22.

At the April 12, 2017, hearing, the court orally made 

the following comments regarding the effect of the order it 

was entering:

I’m not entering final disposition today so this is not 

going to be a dispositional Order in that sense. The 

law does allow the Court under 43-286 to continue disposition from time to time under whatever terms and 
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IN RE INTEREST OF ZACHARY B.

Cite as 299 Neb. 187

conditions the Court deems to be appropriate based on 

the evidence, and as part of that, allow the Court to 

place youth outside of the home. . . . I’m continuing 

the matter, ordering him to be placed at Boys Town as 

soon as possible, continuing disposition for 60 days. The 

family’s still going to be involved in his life. The family needs to be part of his life and the goal is for him 

then to return home. . . . So I’m continuing the matter, 

ordering Boys Town, ordering Zach to follow the rules 

at Boys Town and we’ll continue the matter for maybe 

60 to 90 days and we’ll address further disposition at the 

next hearing.

Zachary appeals the April 12, 2017, order.

ASSIGNMENTS OF ERROR

Zachary generally claims that the juvenile court erred when 

it ordered him to be removed from his home, and he specifically claims that there was insufficient evidence for the juvenile court to find under § 43-251.01(7) that all communitybased resources had been exhausted and that maintaining him 

in his home presented a significant risk of harm to him or 

the community.

STANDARD OF REVIEW

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

law. In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 

247 (2017).

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. Id. The State argues that the order removing Zachary from his home is not a final, appealable order, 

because it was not a final disposition and instead it was a 

temporary placement and did not affect a substantial right. In 
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Cite as 299 Neb. 187

contrast, Zachary argues that the order is appealable because 

it affected a substantial right and that if he is not allowed to 

appeal the order, he will be denied his right to a meaningful 

review of the order placing him outside his home if such placement is merely continued in a future disposition. We agree 

with the State.

[3] 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 . . . .” 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 Becka P. 

et al., supra. Because neither the first type nor the third type 

of final orders is applicable in this case, we examine appealability under the second type. A proceeding before a juvenile 

court is a “special proceeding” for appellate purposes, see 

id., and therefore, in order to determine whether the April 

12, 2017, order is a final order, we must determine whether 

the order affected a substantial right. The determination of 

appealability in this case, as in other juvenile cases, is a factintensive inquiry.

[4] A substantial right is an essential legal right, not a mere 

technical right. Id. We have recognized that the substantial right 

of a parent in juvenile proceedings is a parent’s fundamental, 

constitutional right to raise his or her child. In re Interest of 

Cassandra B. & Moira B., 290 Neb. 619, 861 N.W.2d 398 

(2015). In this case, however, it is the juvenile himself and not 

a parent who is appealing the placement order.

We have recognized that as a corollary to a “parent’s right 

to the companionship, care, custody, and management of his 

or her child,” a child has a “reciprocal right to be raised and 

nurtured by a biological or adoptive parent,” and we have 
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stated that “establishment and continuance of the parentchild relationship is the most fundamental right a child possesses.” In re Guardianship of Benjamin E., 289 Neb. 693, 

707, 856 N.W.2d 447, 457 (2014) (Stephan, J., concurring) 

(citing In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 

238 (2004)). However, the record in this case indicates that 

Zachary was not being raised and nurtured by a biological or 

adoptive parent. Instead, Zachary was living with his aunt, 

and for purposes of our review, we determine that this was his 

“home” under § 43-251.01(7). For completeness, we note that 

his legal guardian was his grandmother, with whom he was 

not residing.

[5] With the legal principles recited above in mind, we 

must consider whether Zachary has an essential legal right 

to stay in his home, which right is independent of his right 

to establishment and continuance of the parent-child relationship. The issue to which Zachary assigns error in this case is 

the juvenile court’s determination under § 43-251.01(7) that 

all community-based resources had been exhausted and that 

maintaining him in his home presented a significant risk of 

harm to him or the community. We note that subsection (7) 

was added to § 43-251.01 as part of 2015 Neb. Laws, L.B. 

482, and that subsection (7) requires that a juvenile “shall not 

be placed out of his or her home” unless the required findings 

are made. The Introducer’s Statement of Intent with regard to 

L.B. 482 indicated that the intent of the bill was “to ensure that 

juveniles charged with status offenses [including truancy] are 

not treated like criminals” and to “prevent kids charged with 

. . . truancy from being . . . placed in out of home care unless 

certain factors are present.” Judiciary Committee, 104th Leg., 

1st Sess. (Feb. 25, 2015). We determine that Nebraska law as 

reflected in § 43-251.01(7) recognizes that a juvenile has an 

essential legal right, and therefore a substantial right, to remain 

in his or her home.

[6,7] Having determined that a substantial right of Zachary’s 

was at issue in this case, we need to determine whether the 
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IN RE INTEREST OF ZACHARY B.

Cite as 299 Neb. 187

April 12, 2017, order affected that right within the meaning 

of § 25-1902(2). In analyzing whether a substantial right was 

affected by a juvenile court order, we have stated that it is 

not enough that the right itself be substantial, the effect of the 

order on that right must also be substantial. See In re Interest 

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

further stated that 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.

In juvenile court cases, we have observed that whether an 

order affects a substantial right of a parent 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. See In re Interest of Becka P. et 

al., 296 Neb. 365, 894 N.W.2d 247 (2017). We stated in such 

cases that orders which temporarily suspend a parent’s custody, 

visitation, or education rights for a brief period of time do 

not affect a substantial right and are therefore not appealable. 

We believe that it is prudent to apply a similar analysis here 

where the focus is on the juvenile’s right to remain in his or 

her home.

[8] As is evident from the foregoing, the substance of an 

order placing a juvenile outside his home affects the juvenile’s right to stay in the home; however, in determining 

whether a substantial right has been affected for final order 

purposes, we must also consider the length of time the juvenile may reasonably be expected to be deprived of that right. 

Similar to our holding with regard to orders that suspend a 

parent’s rights, we hold that orders which temporarily suspend a juvenile’s right to stay in the home for a brief period 

of time and do not purport to determine the juvenile’s placement with finality do not affect a substantial right and are 

therefore not appealable.

Zachary notes that by virtue of the introductory sentence 

of § 43-251.01, the requirements of § 43-251.01(7) apply 

to all placements of juveniles, whether temporary or final 
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dispositions. Zachary contends that because the requirements 

must be met in temporary as well as final dispositions of 

juveniles, even a temporary order has a substantial effect on a 

juvenile’s rights. We do not agree.

We recognize that the requirements of § 43-251.01(7) apply 

to a temporary as well as a final disposition and that therefore, 

a juvenile court must make the required findings before it 

makes a temporary placement. It does not necessarily follow 

that the temporary order is appealable.

To determine appealability, we must determine whether the 

April 21, 2017, order which temporarily suspended Zachary’s 

right to stay in his home for a brief period of time affected 

that right with finality and had a substantial effect on that 

right. We note in this regard we have recognized that as a 

general matter, a juvenile court has continuing authority to 

change the custody or care of a juvenile under its jurisdiction 

when doing so is in the juvenile’s best interests, but that such 

ability to potentially change a placement at some future point 

“has no bearing on whether [a specific placement] order is 

final and appealable.” In re Interest of Karlie D., 283 Neb. 

581, 587, 811 N.W.2d 214, 221 (2012). We cited this proposition in In re Interest of Cassandra B. & Moira B., 290 Neb. 

619, 626, 861 N.W.2d 398, 404 (2015), when we determined 

that an order was not temporary where the “order gave no 

indication that the court would revisit this issue prior to the 

next review hearing scheduled . . . approximately 6 months in 

the future.”

In contrast to In re Interest of Cassandra B. & Moira B., 

in this case, the court indicated that it intended to revisit 

Zachary’s placement more immediately and continued the disposition for 60 days. In the April 12, 2017, order, the court 

stated it was continuing disposition of the matter to June 22 

and that it was making the placement pursuant to § 43-286, 

which authorized the court to continue disposition from time 

to time and place the juvenile in a suitable family home or 

institution. The language of the order is reinforced by the 
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court’s statements at the hearing, in which the court indicated 

that it had authority under § 43-286, that it was not entering 

final disposition, that it was placing Zachary at Boys Town 

and continuing disposition for 60 days, that it would address 

further disposition at that next hearing, and that the goal was 

for Zachary to return to his home.

Thus, in the order and the associated comments at the hearing, the juvenile court in the present case made clear that it 

intended the April 12, 2017, order to be temporary in nature 

and that it planned to revisit the issue of an appropriate placement for Zachary at the June 22 hearing. Cf. In re Interest 

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

(concluding that order was not temporary and therefore was 

appealable, because neither language of order nor court’s 

remarks on record denoted temporary interruption of parents’ rights). The order did not substantially affect Zachary’s 

right to home placement, and it was not a final order under 

§ 25-1902(2).

CONCLUSION

Because the April 12, 2017, order is not a final order, we do 

not have jurisdiction of this appeal. Accordingly, we dismiss 

the appeal for lack of jurisdiction.

Appeal dismiss

Wright, J., not participating