Opinion
No. S-10-208.
Filed July 22, 2011.
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. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the court below.
3. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.
5. Final Orders: Appeal and Error. There are three types of final orders that may be reviewed on appeal: (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 upon summary application in an action after a judgment is rendered.
6. Juvenile Courts: Appeal and Error. A proceeding before a juvenile court is a special proceeding for appellate purposes.
7. Jurisdiction: Final Orders: Time: Notice: Appeal and Error. In order to vest an appellate court with jurisdiction, a notice of appeal must be filed within 30 days of the entry of the final order.
8. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court of Appeals, the Nebraska Supreme Court may consider, as it deems appropriate, some or all of the assignments of error the Court of Appeals did not reach.
9. Judges: Recusal: Presumptions. A party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality.
10. Appeal and Error. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
Petition for further review from the Court of Appeals, INBODY, Chief Judge, and MOORE and CASSEL, Judges, on appeal thereto from the Separate Juvenile Court of Douglas County, ELIZABETH CRNKOVICH, Judge. Judgment of Court of Appeals reversed, and cause remanded with directions.
Jeremy R. Shirk for appellant.
Donald W. Kleine, Douglas County Attorney, and Amy Schuchman for appellee State of Nebraska.
Thomas C. Riley, Douglas County Public Defender, and Christine D. Kellogg for appellee Jamison M.
HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
The State of Nebraska seeks further review of a Nebraska Court of Appeals' decision which reversed the order of the juvenile court for Douglas County terminating the parental rights of Jamyia M.'s natural parents, Shinai S. and Jamison M. Jamyia, a minor child of Navajo descent, was removed from her parents' home after doctors discovered that she suffered injuries consistent with shaken baby syndrome. Shinai and Jamison appealed, and the Court of Appeals reversed. The State petitioned for further review. For the following reasons, we reverse the decision of the Court of Appeals and remand the cause with directions to affirm the order of the juvenile court.
In re Interest of Jamyia M., 18 Neb. App. 679, 791 N.W.2d 343 (2010).
I. BACKGROUND
On September 30, 2008, 2-month-old Jamyia was hospitalized with a posterior occipital subdural hemorrhage and either a subarachnoid hemorrhage or cerebral contusion. Doctors concluded that Jamyia's injuries were consistent with shaken baby syndrome and that her injuries were intentionally inflicted. Shinai and Jamison claimed that they did not cause Jamyia's injuries.
The State filed an adjudication petition alleging that the juvenile court had obtained jurisdiction in these proceedings based upon the natural parents' placing Jamyia in a situation which was dangerous to her life or limb or injurious to her health or morals within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). The State then filed an amended petition, alleging that Shinai's and Jamison's parental rights should be terminated pursuant to Neb. Rev. Stat. § 43-292(2), (8), (9), and (10)(d) (Reissue 2008).
The State also alleged that pursuant to Neb. Rev. Stat. § 43-1505(4) (Reissue 2008) of the Nebraska Indian Child Welfare Act (NICWA), "active efforts" had been made to prevent the breakup of the Indian family, but that those efforts had been unsuccessful; so NICWA's requirement of providing active efforts before foster care placement or termination of Shinai's and Jamison's parental rights was satisfied. The State argued, in the alternative, that active efforts to prevent the breakup of the Indian family were not required because Jamyia's parents subjected her to aggravated circumstances. Shinai and Jamison argued that NICWA contained no aggravated circumstances exception and that active efforts had not been made. Adjudication hearings were held from February 19 to November 12, 2009. A summary of the salient testimony adduced during the adjudication hearings follows.
Dr. Katherine Penny, Jamyia's pediatrician, testified that Jamyia had been brought in to her office for care on September 29, 2008, because she had been screaming and fussy, had cold symptoms, and refused to eat. Penny testified that she fed Jamyia 2 ounces of Pedialyte and that at that time, Jamyia was able to suck and swallow and exhibited no unusual breathing, no unusual eye movement, or any appearance of being abnormally limp. Shinai testified that she and Jamison had taken Jamyia to Penny because Jamyia had a fever, had saliva running from her mouth, and had diarrhea, and because her eyes were "fluttering." Shinai stated that Jamyia was diagnosed with "hand, mouth, [and] foot virus." Shinai said that after seeing Penny, the family returned to Jamison's mother's home, where they had been staying.
Jamison testified that Jamyia was often sick and was a colicky baby. Jamison stated that Jamyia had been taken to Penny because she had difficulty breathing, was crying, and had a cough and diaper rash. He also stated that her tongue and eyes fluttered. Jamison stated that after returning from Penny's office, Jamyia cried all night, as if in pain.
Shinai and Jamison said that on September 30, 2008, Shinai went to the store with Jamison's mother to pick up a prescription and left Jamyia in Jamison's care. Jamison claimed that he fed Jamyia two or three times. Jamison said that after his mother and Shinai returned from the store, he and Shinai attempted to wake Jamyia but that the baby was unresponsive. Shinai said that she called the 911 emergency dispatch service.
Dr. Jeffrey DeMare, a pediatric specialist and the former medical director of a team which evaluates and coordinates care for abused children, was the attending physician the night Jamyia was admitted to the hospital. DeMare testified that he commonly reviews cases to determine whether a child's injury is consistent with child abuse. DeMare noted that upon admission, Jamyia was actively seizing, hypoxic, and in need of mechanical ventilation. Magnetic resonance imaging of Jamyia's brain indicated subdural blood within the posterior occipital space and in the high parietal area, which injuries were recent in nature. Due to the severity of the hemorrhaging, DeMare determined that Jamyia's brain injuries were intentionally inflicted.
Dr. Sebastian J. Troia, a pediatric ophthalmologist, also examined Jamyia's injuries and testified that bilateral retinal hemorrhages established that Jamyia's injuries were the result of trauma. Troia said that Jamyia's retinal hemorrhaging was consistent with shaken baby syndrome, and he ruled out other possible causes of Jamyia's retinal hemorrhaging.
Tammy Burk, a protection and safety worker from the Department of Health and Human Services (DHHS), testified that she had conducted an assessment soon after Jamyia's admission to the hospital. Burk recounted that Jamyia was unable to eat orally because she could not suck or swallow, required a feeding tube, and was on a ventilator. Burk interviewed Shinai and Jamison, who claimed that Jamyia's injuries were the result of a misdiagnosis by Penny. Burk stated that Shinai and Jamison disputed the doctors' conclusions that Jamyia had been shaken, but were unable to provide any reasonable explanation for Jamyia's injuries.
The evidence adduced during the adjudicative hearings established that Jamyia has cognitive motor delays, language delays, visual impairment due to retinal hemorrhages to both eyes, seizures, and neurological problems. Jamyia has difficulty swallowing and requires a feeding tube to supplement her daily oral feeding. Jamyia's hands and feet are curled when they are not in splints, and though she is placed in a "stander" twice daily to strengthen her legs, she was unable to walk or talk at 17 months of age.
The State's expert witness, Evelyn Labode, cited the grave nature of Jamyia's injuries, coupled with a review of the medical and investigative agency reports, as evidence that returning Jamyia to her natural parents would result in further emotional or physical damage to the child. Labode said it was her opinion that it was in Jamyia's best interests for Shinai's and Jamison's parental rights to be terminated. Burk concurred, explaining that because there was no reasonable explanation for how Jamyia had suffered such extensive injuries, there were no assurances that Jamyia would not suffer additional injuries if returned to her natural parents. Burk stated that DHHS supported the termination of Shinai's and Jamison's parental rights.
An expert for Shinai and Jamison, Dr. Steven Gabaeff, testified that Jamyia's injuries were not the result of being shaken, but were due to infection, recurrent seizures, or choking and respiratory arrest. Gabaeff noted that Jamyia's medical records did not indicate that viral meningitis had been ruled out, which he claimed could account for an increase in cranial pressure which could cause Jamyia's retinal hemorrhages. Shinai acknowledged that physicians had testified that Jamyia's injuries were not accidental, but Shinai maintained that she had not abused Jamyia and claimed that Jamison would never harm Jamyia.
On December 2, 2009, at the conclusion of the adjudication phase, the juvenile court entered an order determining that conditions existed for termination of Shinai's and Jamison's parental rights pursuant to § 43-292(2), (8), and (9). The court also found that active efforts to prevent the breakup of the Indian family had been made but that those efforts were unsuccessful, so the State had satisfied § 43-1505(4). The court took under advisement whether continuing custody with Shinai and Jamison would likely result in further harm to Jamyia and whether reasonable efforts to preserve and reunify the family were required under Neb. Rev. Stat. § 43-283.01 (Reissue 2008).
The State alleged that reasonable efforts to preserve and reunify the family, as provided for by § 43-283.01, were not required because Shinai and Jamison had subjected Jamyia to "aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse" under § 43-283.01(4)(a). After a dispositional hearing on January 11, 2010, the juvenile court entered its dispositional order on February 12. The juvenile court determined that it was in Jamyia's best interests to terminate Shinai's and Jamison's parental rights and that reasonable efforts to prevent the breakup of Jamyia's family were not required pursuant to § 43-283.01 as to both parents, because Jamyia was subjected to aggravated circumstances. On February 26, Shinai filed a notice of appeal from the juvenile court's February 12 dispositional order. On March 2, Jamison filed a notice of appeal, purporting to appeal from the December 2, 2009, adjudication order, as well as from the February 12, 2010, dispositional order.
On appeal to the Court of Appeals, Shinai and Jamison argued, among other things, that the juvenile court erred in finding that the State had made active efforts, as required under § 43-1505(4), to prevent the breakup of their Indian family and that those efforts were unsuccessful. The Court of Appeals determined that the services DHHS provided to Shinai and Jamison had been successful and that Shinai and Jamison had attempted to remain involved in Jamyia's life, so the State had not proved that it made active efforts pursuant to § 43-1505(4) to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts had been unsuccessful.
Id.
The Court of Appeals then examined whether the exception to providing reasonable efforts when aggravated circumstances exist, as contained in § 43-283.01(4)(a), relieved the State of its burden to provide active efforts under NICWA's § 43-1505. The Court of Appeals determined that the statutes were separate and distinct, that they did not conflict, that NICWA did not have an aggravated circumstances exception, and that even if they did conflict, NICWA's § 43-1505 was more specific than § 43-283.01, and therefore was controlling. The Court of Appeals determined that the State had failed to prove that active efforts to prevent the breakup of Jamyia's family were provided but unsuccessful, and it reversed the juvenile court's termination of Shinai's and Jamison's parental rights. The State sought further review of the Court of Appeals' decision, which we granted.
Id.
II. ASSIGNMENT OF ERROR
The State assigns that the Court of Appeals erred when it determined that the State was required to provide active efforts to Shinai and Jamison to prevent the breakup of the family within the meaning of § 43-1505(4) when aggravated circumstances were present.
III. STANDARD OF REVIEW
[1,2] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. On a question of law, an appellate court is obligated to reach a conclusion independent of the court below.
In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).
Travelers Indem. Co. v. Gridiron Mgmt. Group, ante p. 113, 794 N.W.2d 143 (2011).
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings.
In re Interest of Jorge O., 280 Neb. 411, 786 N.W.2d 343 (2010).
IV. ANALYSIS 1. ACTIVE EFFORTS
Before the Court of Appeals, Shinai and Jamison argued that the State had not proved that it had made active efforts, pursuant to § 43-1505(4), to prevent the breakup of the Indian family and that those efforts were unsuccessful, and the court ultimately agreed. Though the State argued that active efforts were not required because the aggravated circumstances exception contained in § 43-283.01(4)(a) applied to NICWA, the Court of Appeals determined that the aggravated circumstances exception was not part of NICWA's statutory scheme, so the State was not excused from proving the active efforts requirement before terminating Shinai's and Jamison's parental rights.
The State seeks further review, again arguing that the presence of aggravated circumstances excused the State from providing active efforts within the meaning of § 43-1505(4). The issue is one we need not decide, because we lack jurisdiction to review the merits of the order in which the juvenile court determined that active efforts had been made but were unsuccessful. Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.
Cargill Meat Solutions v. Colfax Cty. Bd. of Equal., ante p. 93, ___ N.W.2d ___(2011).
[5-7] There are three types of final orders that may be reviewed on appeal: (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 upon summary application in an action after a judgment is rendered. We have previously determined that a proceeding before a juvenile court is a special proceeding for appellate purposes and that a judicial determination in an adjudication order that the State satisfied the active efforts requirement contained in § 43-1505(4) affects the substantial right of parents to raise their children, and is therefore a final, appealable order. In order to vest an appellate court with jurisdiction, a notice of appeal must be filed within 30 days of the entry of the final order.
See Neb. Rev. Stat. § 25-1902 (Reissue 2008).
See In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008).
See, DeBose v. State, 267 Neb. 116, 672 N.W.2d 426 (2003); Neb. Rev. Stat. § 25-1912(1) (Reissue 2008).
In the juvenile court's December 2, 2009, adjudication order, it determined that the State had satisfied § 43-1505(4)'s active efforts requirement. That finding was properly part of the adjudication, because § 43-1505(4) requires it for a foster care placement or termination of parental rights. The adjudication order was a final, appealable order when entered on December 2. Shinai did not appeal from the adjudication order. And though Jamison attempted on March 2, 2010, to appeal from the adjudication and disposition orders, his appeal was not timely with respect to the adjudication order.
See § 25-1912(1) and Neb. Rev. Stat. § 43-2,106.01(1) (Reissue 2008).
Because neither Shinai nor Jamison perfected an appeal from the juvenile court's adjudication order determining that the State had made active efforts pursuant to § 43-1505(4), there exists no appellate jurisdiction to review Shinai's and Jamison's argument that the active efforts requirement contained in § 43-1505(4) was not proved. Therefore, the Court of Appeals did not have jurisdiction to reach the active efforts issue, and it erred when it reversed the juvenile court's determination that the State had satisfied § 43-1505(4) before terminating Shinai's and Jamison's parental rights. We reverse the Court of Appeals' judgment in that regard.
The Court of Appeals, finding that the active efforts issue was dispositive, did not address Shinai's and Jamison's other arguments on appeal. Upon reversing a decision of the Nebraska Court of Appeals, we may consider, as we deem appropriate, some or all of the assignments of error the Court of Appeals did not reach. Because there is no appellate jurisdiction on the active efforts issue, we now address Shinai's and Jamison's remaining arguments.
Capitol Construction v. Skinner, 279 Neb. 419, 778 N.W.2d 721 (2010).
2. JAMISON'S APPEAL
Jamison's remaining assignments of error, summarized and restated, are that the juvenile court erred when it (1) found that continuing custody of Jamyia with Jamison would likely result in serious emotional or physical damage to the child and terminated Jamison's parental rights; (2) found that there was sufficient evidence to establish grounds for termination under §§ 43-292(2), (8), and (9); and (3) failed to conduct the proceedings in a fair and impartial manner.
(a) Termination of Parental Rights
Jamison argues that the juvenile court erred when it terminated his parental rights after determining that continued custody of Jamyia with Jamison would likely result in serious emotional or physical damage to the child. Before terminating an Indian child's parental rights, the State must establish, beyond a reasonable doubt, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child under NICWA, § 43-1505(6), in addition to proving that the State provided active efforts under § 43-1505(4). Here, the juvenile court determined in its disposition order that continued custody of Jamyia with Jamison would likely result in serious emotional or physical damage to Jamyia within the meaning of § 43-1505(6). Jamison argues that the evidence was insufficient to support a determination beyond a reasonable doubt that continued custody would likely result in serious emotional or physical damage to Jamyia. Our review of the record does not coincide with Jamison's position.
In its December 2, 2009, order, the juvenile court determined, among other things, that Jamyia's injuries were the result of nonaccidental trauma, that Jamison had inflicted serious bodily injury upon Jamyia, and that Jamyia was at risk of further harm. Those findings and the record as a whole support a determination beyond a reasonable doubt that continued custody of Jamyia with Jamison would likely result in serious emotional or physical damage to the child.
The attending pediatric specialist, DeMare, testified that he commonly reviewed cases to determine whether a child's injury was consistent with child abuse and that in this case, he ultimately determined that Jamyia's severe injuries were intentionally inflicted. This determination was consistent with the observations of the ophthalmologist, who testified that Jamyia's retinal hemorrhaging was consistent with shaken baby syndrome and that there were no other possible causes for Jamyia's injuries. And Shinai's and Jamison's testimony established that Jamyia was in the exclusive care of Jamison before the discovery of Jamyia's injuries. Furthermore, Labode opined that Jamyia's grave injuries, coupled with a review of the medical and investigative agency reports, evidenced that returning Jamyia to her parents would result in further emotional or physical damage to the child. Though Jamison contends that Labode's testimony was based on incomplete information, the record reflects that Labode candidly cited the documents on which she relied in forming her opinion and that Jamison was given a full opportunity to cross-examine her. And nothing in the record suggests that the court relied solely on Labode's testimony in making its determination.
Shinai's and Jamison's expert, Gabaeff, testified that Jamyia's injuries could have been caused by cranial pressure from viral meningitis. However, there is no evidence in the record that Jamyia actually contracted viral meningitis, and we find the testimony of the State's medical witnesses to be far more persuasive. After considering Jamison's contentions and reviewing the record, we conclude that the State has proved beyond a reasonable doubt that continued custody of Jamyia with Jamison is likely to result in serious emotional or physical damage to the child.
(b) Juvenile Court's Adjudication Order
Jamison argues that the juvenile court erred when it found in the adjudication phase that there was sufficient evidence to establish grounds for termination under § 43-292(2), (8), and (9). We note that the court's findings were made in the adjudication order and that as discussed above, Jamison failed to perfect an appeal from the adjudication order. This raises a potential question as to whether we have jurisdiction to review those findings. We conclude, however, that the court's determination that there was sufficient evidence to establish grounds for termination, though entered at the same time as the adjudication order, was not actually part of the adjudication. This is because the juvenile court's jurisdiction over and placement of Jamyia did not rest on those findings. Nor did the court's determination affect any substantial right of Jamison, because his parental rights were not actually affected until they were terminated. Jamison therefore did not waive his right to appeal the § 43-292 determination when he failed to perfect an appeal from the adjudication order. Therefore, we will address Jamison's argument that the evidence was insufficient to establish grounds for termination under § 43-292(2), (8), and (9).
The evidence, as summarized above, amply supports the court's finding of statutory grounds for termination of Jamison's parental rights. Section 43-292(2) permits termination when a parent has "neglected and refused" to give the juvenile "necessary parental care and protection." Section 43-292(8) permits termination if "[t]he parent has inflicted upon the juvenile, by other than accidental means, serious bodily injury." And § 43-292(9) permits termination when the parent has subjected the juvenile to "aggravated circumstances," including but not limited to "abandonment, torture, chronic abuse, or sexual abuse." As we found above, the record supports the finding that Jamison subjected Jamyia to severe, intentional physical abuse. That evidence is sufficient to establish each of the statutory grounds found by the juvenile court. Therefore, we find no merit to Jamison's complaint that the evidence was insufficient.
(c) Judicial Impropriety
Jamison argues that the juvenile court violated Jamison's due process rights because the court failed to conduct the proceedings in a fair and impartial manner. Jamison argues that the juvenile court gave the appearance of impropriety when the court took a motion for visitation during the proceedings under advisement for a year, interrupted the testimony of Jamison's expert witness, indicated the court's opinion of the medical expert, and sought additional information during the dispositional phase.
But the record reflects that the juvenile court was unaware of the visitation motion until the hearings began. The juvenile court did comment that Jamison's expert witness was "slick," but the record reflects that the juvenile court's comment was part of an effort to instruct the witness to answer only the questions presented rather than elaborating beyond the scope of the question. And though Jamison argues that the court gave the appearance of impropriety when it sought additional information during the dispositional phase, our review of the record does not reflect that the court was at all partial during the presentation of that evidence. Ultimately, because the juvenile court was the trier of fact, it was not only proper but entirely necessary for the court to inquire into the facts and make findings regarding the persuasiveness of the witnesses and the weight of the evidence.
There exists a presumption of judicial impartiality, and a party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming that presumption. After considering Jamison's arguments and reviewing the record, we conclude that there is no evidence that the court was biased or prejudiced, so Jamison has failed to overcome the presumption of judicial impartiality.
See State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
3. SHINAI's APPEAL
Shinai's replacement brief on appeal does not contain a separate "assignments of error" section stating the assigned errors apart from the arguments in her brief. Neb. Ct. R. App. P. § 2-109(D)(1)(d), (e), and (f) (rev. 2008) requires a separate section for assignments of error, designated as such by a heading, and also requires that the section be located after a statement of the case and before a list of controlling propositions of law. Assignments of error consisting of headings or subparts of argument do not comply with the mandate of § 2-109(D)(1)(e). Accordingly, we may proceed as though Shinai failed to file a brief or, alternatively, may examine the proceedings for plain error. We will consider whether the juvenile court committed plain error, but only in regard to the dispositional order, because Shinai did not appeal from the adjudication order. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. After reviewing the relevant parts of the record, we find no plain error pertaining to the dispositional proceedings.
See Gilbert Martha Hitchcock Found. v. Kountze, 275 Neb. 978, 751 N.W.2d 129 (2008).
See City of Gordon v. Montana Feeders, Corp., 273 Neb. 402, 730 N.W.2d 387 (2007).
In re Interest of Markice M., 275 Neb. 908, 750 N.W.2d 345 (2008).
V. CONCLUSION
For the foregoing reasons, the decision of the Court of Appeals is reversed, and the cause is remanded to the Court of Appeals with directions to affirm the juvenile court's order terminating Shinai's and Jamison's parental rights.
REVERSED AND REMANDED WITH DIRECTIONS.
WRIGHT, J., not participating.