In Re Interest of Zachary B. (Final Appealable Order)

In this case Zachary appealed an order from the separate juvenile court in Lancaster County that ordered him removed from his home and placed at Boystown arguing that such placement was in violation of Neb. Rev. Stat. 43-251.01(7), which prohibits any temporary or final disposition order of out-of-home care unless “all community based resources have been exhausted,” and “maintaining the juvenile in the home presents a significant risk of harm to the juvenile or community.” Zachary was adjudicated under 43-247(3)(b) for truancy and the placement at Boystown occurred at the disposition on a motion to revoke, which was held on April 12, 2017, and then set for continued disposition 60 days later.  The court ruled that the April 12th order was not a final order and the court lacked jurisdiction to hear the appeal. 

 

The court did find that a child “has an essential legal right, and therefore a substantial right, to remain in his or her home.”  However, it found that it is not enough that the right is substantial, but additionally, the effect of the order on the substantial right, must be substantial within the meaning of Neb. Rev. Stat. 25-1902(2).   The court found, the court’s order did not have a substantial effect on the child’s right, because the judge made comments that he was not entering a “final disposition” and there was another hearing scheduled for June 22nd .  The Supreme Court found that “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 appropriate placement for Zachary at the June 22nd hearing.”  There were, however, no comments by the juvenile court, indicating they would revisit the order for placement at the continued disposition.  In contrast, the Nebraska Supreme Court, on the same day, issued an order on In re Interest Dana H., finding a similar order to be a final, appealable order, and that the analysis “is necessarily a fact intensive inquiry.”