In re Interest of Kirsten H.

Citation: 25 Neb. Ct. App. 909Docket: A-17-981

Court: Nebraska Court of Appeals; May 22, 2018; Nebraska; State Appellate Court

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An appellate court reviews juvenile cases de novo and independently of the juvenile court's findings. Jurisdictional questions that do not involve factual disputes are determined as a matter of law. Subject matter jurisdiction refers to a court's authority to hear a case within a specific category and address the relevant issues. Any party or the court can raise a lack of subject matter jurisdiction at any time. Jurisdiction over child custody cases is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which grants exclusive, continuing jurisdiction to the court that makes the initial custody determination, unless specified conditions are met under Nebraska law. A court with such jurisdiction may decline to exercise it if deemed an inconvenient forum. Actions taken without subject matter jurisdiction are void and cannot confer appellate jurisdiction. An appellate court can determine if it lacks jurisdiction due to the lower court's lack of jurisdiction, vacate void orders, and remand cases with directions. If a lower court lacks jurisdiction, the appellate court cannot review the merits of the case.

In the case of Kirsten H., following her parents' divorce in North Dakota in 2009, she and her mother moved to Nebraska in 2012. After allegations of sexual abuse against her stepfather arose, juvenile proceedings began in North Dakota, leading to a decision for Kirsten to be returned to her mother by July 1, 2017. Prior to this date, Nebraska initiated its own juvenile proceedings. The Box Butte County juvenile court granted temporary custody of Kirsten to the Nebraska Department of Health and Human Services, maintaining her placement with her North Dakota grandparents, despite Victoria's motion to dismiss based on jurisdictional claims regarding the ongoing North Dakota proceedings being overruled.

Victoria appeals orders issued on August 10 and August 31, challenging the subject matter jurisdiction of the juvenile court of Box Butte County, which the appellate court finds lacking, rendering the orders void. Consequently, the appellate court vacates the orders, dismisses the appeal, and remands the case with directions.

Victoria is the biological mother of Kirsten, born December 2007, whose father, Garvin H., was stationed in Germany during the relevant court proceedings in North Dakota and Nebraska from 2016 to 2017, with no clear indication of his domicile. After Victoria divorced Garvin in North Dakota in 2009, she moved to Nebraska with Kirsten in 2012, later marrying John. In the summer of 2016, while visiting her grandparents in North Dakota, Kirsten reported sexual abuse by John, leading North Dakota authorities to file for emergency custody and subsequently a deprivation petition, resulting in Kirsten living with her grandparents.

Testimony from an April 2017 hearing in North Dakota, introduced in the Nebraska case, indicates North Dakota issued an emergency custody order in August 2016. The venue shifted to Nebraska in October, where juvenile proceedings were initiated but dismissed in February 2017. Following concerns for Kirsten’s safety, another emergency custody order was issued in North Dakota. In May 2017, the Foster County Juvenile Court noted insufficient evidence regarding the abuse claims but classified Kirsten as "deprived," lacking proper parental care. The court granted custody to the Executive Director of Foster County Social Services until July 1, 2017, when Kirsten was to be returned to Victoria's home in Nebraska, with pending petitions to be dismissed thereafter.

On June 16, 2017, the State of Nebraska filed a petition in Box Butte County juvenile court alleging that Kirsten was a child in need of protection under Neb. Rev. Stat. 43-247(3)(a). The petition claimed that her mother, Victoria, failed to protect her from sexual abuse and did not report abuse that Kirsten disclosed. The State also alleged that Kirsten was in a dangerous situation, experiencing sexual, physical, and mental abuse, and that Victoria attempted to tamper with evidence related to the abuse by John. 

Simultaneously, the State filed an ex parte motion for temporary custody of Kirsten, which referenced a supporting affidavit from an investigator but did not mention an ongoing juvenile case in North Dakota. On June 17, the court granted the motion, and a protective custody hearing on June 22 resulted in Kirsten being placed in the temporary custody of the Department of Health and Human Services (DHHS). The court ordered that any contact between Kirsten and Victoria must be supervised and agreed upon by Kirsten.

On July 17, 2017, Victoria filed a motion to dismiss for lack of subject matter jurisdiction, arguing that Kirsten was not present in Nebraska when the petition was filed and citing a Nebraska Supreme Court decision that limited jurisdiction in such cases. Victoria also denied the allegations and asserted several affirmative defenses. A hearing on her motion was held on July 27, but the court found insufficient evidence to decide the motion. The court noted uncertainty about North Dakota's adoption of the Uniform Child Custody Jurisdiction and Enforcement Act and jurisdictional specifics regarding the Foster County Juvenile Court. Ultimately, the court overruled Victoria’s motion to dismiss, allowing for its renewal with additional evidence.

On August 10, 2017, a hearing was held regarding Victoria's motion, filed on July 18, to change the placement of her child, Kirsten, seeking to have Kirsten placed in her home or another suitable location in Scottsbluff, Nebraska. The court conducted the hearing as an initial detention hearing and received testimony. The court determined that reasonable efforts had been made to prevent Kirsten's removal, but concluded that custody should be granted to the Nebraska Department of Health and Human Services (DHHS). It found that placement with Kirsten's grandparents in North Dakota was in her best interests and the least restrictive option available. Visitation was to be arranged by DHHS, with further conditions involving Kirsten and her therapist in a therapeutic setting. Victoria's motion for change of placement was denied. 

On August 17, 2017, the State filed an amended juvenile court petition, alleging Kirsten was a child under Neb. Rev. Stat. 43-247(3)(a), with new allegations against Victoria, including her relationship with individuals posing risks to Kirsten and her refusal to facilitate necessary specialized treatment for Kirsten. 

Victoria subsequently filed a renewed motion to dismiss on August 28, arguing lack of subject matter jurisdiction and asserting that North Dakota was exercising jurisdiction over Kirsten under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). During a hearing on August 31, the court assessed arguments on the motion to dismiss, considering evidence from previous hearings in North Dakota. The court noted Kirsten's residency in Nebraska prior to her removal and upheld Victoria's work location in Box Butte County. 

The court ultimately denied Victoria’s motion to dismiss, overruled a motion in limine she filed, issued discovery orders, and mandated a parenting assessment and psychological evaluation, scheduling an adjudication hearing for September 21. Victoria appealed the orders from both August 10 and August 31, assigning errors related to jurisdiction, custody, the assessment of reasonable efforts before removal, the determination of least restrictive placement, and delegation of visitation rights to DHHS and others. The appellate court will review juvenile cases de novo on the record and resolve jurisdictional questions as a matter of law.

Victoria contends that the juvenile court lacked subject matter jurisdiction in her case and should have upheld her motion to dismiss. Generally, a denial of such a motion is not considered a final order. However, the appellate court must examine the jurisdictional question because the denial of Victoria's motion, filed on August 31, 2017, is not the sole order under appeal. Alongside this denial, Victoria is also appealing an order from August 10, which mandated that Kirsten remain in the custody of the Department of Health and Human Services (DHHS), continuing her placement with grandparents in North Dakota. If the court had proper jurisdiction on August 10, that order would be final and appealable, contrasting with temporary detention orders that are not final.

Subject matter jurisdiction refers to a court's authority to hear cases within a specific category and to address the issues presented. This jurisdiction can be challenged at any time by any party or the court itself. Despite the August 10 order typically being appealable, the court must assess whether it had jurisdiction over the proceedings. Victoria asserts that at the time the case was initiated on June 16, 2017, North Dakota was actively exercising jurisdiction over Kirsten, with specific orders in place until July 1, when she was to return to Victoria’s care. She argues that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Nebraska lacked jurisdiction since Kirsten was not in Nebraska during the proceedings, thus negating Nebraska's parens patriae power. The Nebraska Supreme Court has held that a state’s jurisdiction to regulate custody does not depend on the child’s domicile but rather on the state’s authority over children within its territory. In this case, Nebraska could not assert jurisdiction through parens patriae power as Kirsten was never present in the state during the relevant timeframe.

Jurisdiction in child custody proceedings is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), as established in Watson v. Watson. The UCCJEA defines 'child custody proceeding' broadly, encompassing various legal matters such as divorce, guardianship, and termination of parental rights. Although the State referenced the now-repealed Nebraska Child Custody Jurisdiction Act, it is not relevant for current jurisdiction assessments. Both Nebraska and North Dakota have implemented the UCCJEA. Nebraska has clarified that the UCCJEA applies to juvenile proceedings under specific statutes, affirming that cases filed under 43-247(3)(a) qualify as 'child custody proceedings.' 

According to the UCCJEA, a court has initial child custody jurisdiction if the state is the child's home state at the time the proceeding starts or was the home state within the previous six months, provided a parent remains in that state. A 'child custody determination' includes any court order regarding custody or visitation. The 'home state' is defined as the state where the child lived with a parent for at least six consecutive months prior to the proceedings. In a 2017 North Dakota hearing, it was established that the initial custody determination for Kirsten occurred in North Dakota, where both she and her mother, Victoria, resided during the divorce proceedings, thus addressing custody and visitation rights.

Victoria’s father indicated that the divorce agreement stipulated that if Garvin traveled overseas during the summer, Kirsten would stay with either Garvin's parents or Victoria's family. North Dakota retains exclusive, continuing jurisdiction over child custody matters as per statute 43-1239 until certain conditions are met. Although Nebraska could have claimed jurisdiction as Kirsten's home state after Victoria and Kirsten moved there in 2012, there is uncertainty regarding Kirsten's home state status at the time of the juvenile petition filed in June 2017, given her residence in North Dakota since mid-2016. The parties dispute whether her time in North Dakota constitutes a 'temporary absence' under statute 43-1227(7). However, Kirsten’s home state determination in June 2017 is deemed irrelevant since North Dakota had exclusive jurisdiction during the juvenile proceedings of 2016-2017. North Dakota initially determined custody during the divorce and retains jurisdiction under the UCCJEA until a court decides otherwise based on conditions outlined in section 43-1239. The North Dakota court did not make the necessary findings to relinquish jurisdiction or declare itself an inconvenient forum, reaffirming its jurisdiction through a May 2017 order that classified Kirsten as a 'deprived' child under the Uniform Juvenile Court Act, indicating a lack of proper parental care or control. This classification parallels Nebraska's juvenile court procedures under statute 43-247(3)(a).

Kirsten was placed under the care of the Executive Director of Foster County Social Services from February 13, 2017, until July 1, 2017, when she was to be returned to her home in Nebraska, with the juvenile petitions expected to be dismissed. However, there is no evidence indicating that the North Dakota court proceedings have been officially dismissed. At a hearing in Nebraska on August 10, the State’s counsel claimed there was no ongoing case in North Dakota, but attorney assertions are not considered evidence. A North Dakota family services specialist testified that the North Dakota order was no longer valid following a Nebraska court order on June 17. Nevertheless, the record lacks documentation from the North Dakota court confirming the dismissal of its proceedings.

When the juvenile petition was filed in Nebraska in June 2017, a proceeding was already underway in North Dakota, which had proper jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). According to UCCJEA § 43-1243(a), Nebraska could not exercise jurisdiction as the North Dakota proceeding had not been terminated or stayed, nor was Nebraska deemed a more convenient forum. Furthermore, Nebraska failed to comply with § 43-1243(b), which mandated staying its proceedings and communicating with the North Dakota court. The Nebraska juvenile court acknowledged this lack of communication during a hearing on August 31. Additionally, the State's juvenile petition did not meet the requirements of § 43-1246, which necessitates disclosing other related proceedings in the initial filings.

On the same day the juvenile petition was filed, the State submitted an ex parte motion for temporary custody, which included an affidavit referencing a pending North Dakota case. This indicated a potential jurisdiction issue for the juvenile court, which was expected to be aware of this concern. The North Dakota court intended to dismiss juvenile petitions by July 1, 2017, but there is no evidence confirming that this dismissal occurred. Even if it did, North Dakota retained exclusive and continuing jurisdiction under the UCCJEA, as it made the initial custody determination involving Kirsten during Victoria and Garvin's divorce. This jurisdiction persists until a court makes a determination under Nebraska law or declines jurisdiction due to inconvenience.

The UCCJEA aims to enhance cooperation among states for custody decisions in the child's best interest. Both North Dakota and Nebraska have vested interests in Kirsten's welfare; however, without evidence of a North Dakota court's determination regarding jurisdiction, Nebraska lacked authority over custody proceedings under the UCCJEA. The North Dakota court had exclusive jurisdiction when the juvenile petition was filed in Nebraska, as shown by its May 2017 order. There is no record that North Dakota declined jurisdiction based on Nebraska being more convenient.

Consequently, the Nebraska juvenile court did not adhere to statutory requirements, lacking subject matter jurisdiction when it issued orders on August 10 and 31, 2017. Orders made without jurisdiction are void and do not confer appellate jurisdiction. The Nebraska Supreme Court ruled that the juvenile court's orders are vacated, the appeal is dismissed, and the case is remanded for compliance with the UCCJEA.