In re Interest of Breana M.
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Decisions
of the Nebraska Court of Appeals
18 nebraska appellate reports
910
imposing sentences within the statutory limits. This assignment
of error is without merit.
CONCLUSION
In conclusion, having found no merit to any of Reyes’ assignments of error, we affirm Reyes’ convictions and sentences.
Affirmed.
In
re I nterest of
Breana M., a child
18 years of age.
of Nebraska, appellant, v. K aylin B.
and Travis M., appellees.
under
State
___ N.W.2d ___
Filed April 5, 2011. No. A-10-734.
1. Jurisdiction: Words and Phrases. Jurisdiction is the inherent power or authority
to decide a case.
2. ____: ____. Jurisdiction of the subject matter means the authority to hear and
determine both the class of actions to which the action before the court belongs
and the particular question which it assumes to decide.
3. ____: ____. Personal jurisdiction is the power of a tribunal to subject and bind a
particular person or entity to its decisions.
4. Juvenile Courts: Jurisdiction: Words and Phrases. The commonly used phrase
that a juvenile court “takes jurisdiction over a juvenile” refers to the authority of
the juvenile court to utilize the powers conferred on it by the Nebraska Juvenile
Code, Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 2008), to provide for the
treatment and rehabilitation of certain juveniles and their parents, after the State
has met its burden of proof at an adjudication hearing.
5. Juvenile Courts: Dismissal and Nonsuit: Appeal and Error. It is error for a
juvenile court to dismiss a petition because a child is currently residing in a different county.
6. Juvenile Courts: Venue: Proof. In a proceeding under the Nebraska Juvenile
Code, the State is not required to prove proper venue, because proof of venue is
immaterial to the determination of whether a juvenile falls within the meaning of
Neb. Rev. Stat. § 43-247 (Reissue 2008).
7. Juvenile Courts: Venue: Motions to Dismiss. Because venue is immaterial in
juvenile proceedings, a court should not grant a motion to dismiss based on an
allegation of improper venue; instead, a juvenile court should first hold an adjudication hearing, and after the adjudication hearing, it should determine whether
it would be proper to transfer the proceedings to a court in the county where the
juvenile resides.
Decisions
of the Nebraska Court of
in re interest of breana m.
Cite as 18 Neb. App. 910
Appeals
911
Appeal from the Separate Juvenile Court of Douglas
County: Vernon Daniels, Judge. Reversed and remanded for
further proceedings.
Donald W. Kleine, Douglas County Attorney, Amy
Schuchman, and Daniel Gubler, Senior Certified Law Student,
for appellant.
Joan Garvey, P.C., L.L.O., for appellee Kaylin B.
Thomas C. Riley, Douglas County Public Defender, and
John J. Jedlicka for appellee Travis M.
Irwin, Sievers, and Moore, Judges.
Irwin, Judge.
I. INTRODUCTION
Pursuant to this court’s authority under Neb. Ct. R. App.
P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted
without oral argument. The State of Nebraska appeals from an
order of the Douglas County Separate Juvenile Court, which
order granted Kaylin B.’s and Travis M.’s motions to dismiss the
adjudication proceedings concerning their minor child, Breana
M. Although the record does not reveal the court’s explanation
for granting the motions to dismiss, the motions were premised
on an alleged lack of personal jurisdiction and improper venue
because Breana does not reside in Douglas County.
For the reasons set forth below, we find that the juvenile
court erred in granting the motions to dismiss. We therefore
reverse the dismissal order and remand the case for further proceedings.
II. BACKGROUND
On May 17, 2010, the State filed a petition in the Douglas
County Separate Juvenile Court alleging that Breana, born in
December 2008, came within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2008) as to Kaylin and Travis, her natural parents. Specifically, the petition alleges that both Kaylin
and Travis use alcohol or controlled substances and have failed
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of the Nebraska Court of Appeals
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to provide Breana with parental care, support, and supervision.
The petition also alleges that Breana is enrolled in or is eligible
for enrollment in the Rosebud Sioux Tribe.
That same day, the State also filed a motion for temporary custody of Breana. The affidavit in support of the
motion reveals that Breana resides with her maternal grandmother in Cass County, Nebraska, and that Breana has resided
there intermittently since March 2009, when Kaylin brought
Breana to her grandmother because Kaylin was unable to
care for her properly. Kaylin and Travis continue to reside in
Douglas County.
Since March 2009, Kaylin has removed Breana from her
grandmother’s home in Cass County on several occasions and
taken Breana back to her home in Douglas County, presumably
because Kaylin was upset when Breana’s grandmother reported
Kaylin’s drug use to authorities. Ultimately, however, Breana
has always returned to her grandmother’s home because Kaylin
is unable to care for Breana due to her continuing drug use.
At the time the petition and the motion for temporary custody
were filed, Kaylin and Travis were threatening to take Breana
from her grandmother again.
The juvenile court granted the State’s motion for temporary
custody and scheduled a hearing date. Prior to the hearing on
the allegations in the petition, Kaylin and Travis each filed a
motion to dismiss the proceedings, arguing that the Douglas
County Separate Juvenile Court lacked personal jurisdiction
over Breana and that Douglas County was not the proper
venue in which to hear this case because Breana did not reside
in Douglas County, but, instead, continued to reside in Cass
County with her grandmother.
On July 19, 2010, after the hearing, the court issued an order
granting Kaylin’s and Travis’ motions to dismiss. The court did
not provide any authority or explanation for this action.
The State appeals from the order of dismissal.
III. ASSIGNMENT OF ERROR
The State alleges that the juvenile court erred in granting the
parents’ motions to dismiss, because the court had jurisdiction
to hear the case.
Decisions
of the Nebraska Court of
in re interest of breana m.
Cite as 18 Neb. App. 910
Appeals
913
IV. ANALYSIS
1. Standard of R eview
A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law,
which requires the appellate court to reach a conclusion independent from the lower court’s decision. In re Interest of Tegan
V., ante p. 857, ___ N.W.2d ___ (2011).
Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. Id.
2. Jurisdiction
The State alleges that the juvenile court erred in granting the
parents’ motions to dismiss. Although it is not entirely clear
why the juvenile court granted the motions to dismiss, based on
the allegations in the motions, we can assume that the juvenile
court concluded either that it lacked jurisdiction to adjudicate
Breana or that Douglas County was not the proper venue for
this case. We address each basis for dismissal in turn.
(a) Jurisdiction to Adjudicate Breana
In their motions to dismiss, Kaylin and Travis allege that the
Douglas County Separate Juvenile Court does not have “personal jurisdiction” over Breana because Breana does not reside
in Douglas County. Personal jurisdiction, or in personam jurisdiction, is the power of a tribunal to subject and bind a particular person or entity to its decisions. See Ashby v. State, 279
Neb. 509, 779 N.W.2d 343 (2010). Although Kaylin and Travis
use the legal term “personal jurisdiction,” we understand their
argument to assert that the Douglas County Separate Juvenile
Court does not have subject matter jurisdiction because Breana
is not residing in Douglas County.
[1-3] We begin our discussion by defining certain jurisdictional terms to avoid confusion herein and in future cases.
Jurisdiction is the inherent power or authority to decide a case.
In re Interest of Tegan V., supra. Jurisdiction of the subject
matter means the authority to hear and determine both the class
of actions to which the action before the court belongs and
the particular question which it assumes to decide. Id. As we
explained above, personal jurisdiction is the power of a tribunal
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to subject and bind a particular person or entity to its decisions.
Ashby v. State, supra.
[4] We contrast the above jurisdictional terms with the commonly used phrase that a juvenile court “takes jurisdiction over
a juvenile” after the State has met its burden of proof at an
adjudication hearing. This commonly used phrase refers to the
authority of the juvenile court to utilize the powers conferred
on it by the Nebraska Juvenile Code, Neb. Rev. Stat. §§ 43-245
to 43-2,129 (Reissue 2008), to provide for the treatment and
rehabilitation of certain juveniles and their parents.
In their motions to dismiss, Kaylin and Travis argue that
the Douglas County Separate Juvenile Court does not have
the authority (they incorrectly term this personal jurisdiction)
to adjudicate Breana because she does not reside in Douglas
County. This argument relates to the juvenile court’s subject
matter jurisdiction because it is an assertion concerning the
court’s authority to hear and determine whether Breana is
within the meaning of § 43-247(3)(a).
As a statutorily created court of limited and special jurisdiction, a juvenile court has only such authority as has been
conferred on it by statute. In re Interest of Tegan V., ante p.
857, ___ N.W.2d ___ (2011). Thus, we look to the Nebraska
Juvenile Code to determine the extent of the juvenile court’s
subject matter jurisdiction over this case.
Pursuant to the juvenile code, the juvenile court’s subject
matter jurisdiction is far reaching. Moreover, the Nebraska
Supreme Court has directed that we construe the Nebraska
Juvenile Code liberally to accomplish its purpose of serving the best interests of the juveniles who fall within it. See
In re Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d
843 (2010).
Section 43-247 provides that the juvenile court in “each
county” shall have jurisdiction over “[a]ny juvenile” who lacks
proper parental care by reason of the fault or habits of the
child’s parent, guardian, or custodian. See § 43-247(3)(a). This
statutory language is referring to subject matter jurisdiction.
In this case, the State’s petition alleges that Breana comes
within the meaning of § 43-247(3)(a) because she is lacking
Decisions
of the Nebraska Court of
in re interest of breana m.
Cite as 18 Neb. App. 910
Appeals
915
proper parental care by reason of the faults or habits of Kaylin
and Travis.
[5] Considering the purposes of the juvenile code, including
protecting children and placing them in a stable and secure living environment, we find that to the extent the juvenile court
based its decision to grant the motions to dismiss on the court’s
lack of subject matter jurisdiction to adjudicate Breana, such
decision was erroneous. Under the juvenile code, the juvenile
court has subject matter jurisdiction over “any juvenile” who
lacks proper parental care by reason of the fault or habits of
the child’s parents. The juvenile code does not indicate that this
subject matter jurisdiction is limited by the child’s temporary
residence in another county. And we are unable to find any
other statute or case law which suggests that a juvenile court
must dismiss a petition because the child temporarily resides
in a different county. In fact, this court has recently held that
it is error for a juvenile court to dismiss a petition because a
child is currently residing in a different county. In re Interest of
Tegan V., supra (reversing juvenile court’s dismissal of petition
when child was placed outside of county after original petition
was filed).
(b) Proper Venue
In their motions to dismiss, Kaylin and Travis also allege that
the Douglas County Separate Juvenile Court is not the proper
venue for these proceedings because Breana does not reside in
Douglas County. In the motions, Kaylin and Travis assert that
a court in Cass County is the appropriate venue because at the
time the State filed its petition, Breana resided in Cass County
with her maternal grandmother.
[6] Venue is the place of trial of an action—the site where the
power to adjudicate is to be exercised. Muir v. Nebraska Dept.
of Motor Vehicles, 260 Neb. 450, 618 N.W.2d 444 (2000). The
Nebraska Supreme Court has previously held that in a proceeding under the Nebraska Juvenile Code, the State is not required
to prove proper venue, because proof of venue is immaterial to
the determination of whether a juvenile falls within the meaning of § 43-247. See In re Interest of Leo L., 258 Neb. 877, 606
N.W.2d 783 (2000). Moreover, § 43-282 allows an adjudication
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proceeding to be filed in any county and allows for discretionary transfer, after adjudication, to the county where the juvenile
is living or domiciled, stating in part:
If a petition alleging a juvenile to be within the jurisdiction of the Nebraska Juvenile Code is filed in a county
other than the county where the juvenile is presently living or domiciled, the court, at any time after adjudication
and prior to final termination of jurisdiction, may transfer
the proceedings to the county where the juvenile lives or
is domiciled and the court having juvenile court jurisdiction therein shall thereafter have sole charge of such
proceedings and full authority to enter any order it could
have entered had the adjudication occurred therein.
(Emphasis supplied.) Based on the language of § 43-282, proof
of venue is immaterial when a petition is filed alleging a juvenile to be within the subject matter jurisdiction of the Nebraska
Juvenile Code.
[7] Because venue is immaterial in juvenile proceedings, a
court should not grant a motion to dismiss based on an allegation of improper venue. Pursuant to the statutory language, a
juvenile court should first hold an adjudication hearing, and
after the adjudication hearing, it should determine whether it
would be proper to transfer the proceedings to a court in the
county where the juvenile resides.
In this case, the Douglas County Separate Juvenile Court
should have held an adjudication hearing to determine whether
Breana was a child within the meaning of § 43-247(3)(a) as
the State’s petition alleged. If the court adjudicated Breana as
such, then it should have considered transferring the case to a
court in Cass County. To the extent the juvenile court based its
decision to grant the motions to dismiss on the allegation that
venue was not proper, such decision was erroneous.
(c) State’s Argument
Although we agree with the State’s basic assertion that the
juvenile court erred in granting the motions to dismiss, we
briefly digress to make clear that we do not agree with the
State’s argument in favor of that basic assertion. In its brief to
this court, the State focuses its argument on Breana’s eligibility
Decisions
of the Nebraska Court of
in re interest of breana m.
Cite as 18 Neb. App. 910
Appeals
917
for enrollment in the Rosebud Sioux Tribe and on the application of the Nebraska Indian Child Welfare Act (the Act). See
Neb. Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2008).
The State has misinterpreted the application of the Act to
this case. The petition filed by the State alleges that Breana
is an Indian child as defined by the Act because she is
enrolled in or is eligible for enrollment in the Rosebud Sioux
Tribe. The record reveals that despite Breana’s status as an
Indian child, neither she nor her parents reside on the reservation. Because Breana does not reside on the reservation,
§ 43-1504(2) controls the determination of which court has
subject matter jurisdiction of these juvenile proceedings. That
subsection provides:
In any state court proceeding for the foster care placement of, or termination of parental rights to, an Indian
child not domiciled or residing within the reservation of
the Indian child’s tribe, the court, in the absence of good
cause to the contrary, shall transfer such proceeding to
the jurisdiction of the tribe, absent objection by either
parent, upon the petition of either parent or the Indian
custodian or the Indian child’s tribe, except that such
transfer shall be subject to declination by the tribal court
of such tribe.
In this case, no one has filed a petition to transfer the case to a
tribal court. As such, at this time, the state courts retain subject
matter jurisdiction over the juvenile court proceedings.
The jurisdictional rules cited by the State in its brief apply
to a determination of whether a tribal court or a state court has
subject matter jurisdiction over a juvenile proceeding when an
Indian child is involved. See Mississippi Choctaw Indian Band
v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29
(1989). Here, the issue is not whether a state court or a tribal
court has subject matter jurisdiction, but which state juvenile
court has subject matter jurisdiction. A determination of which
state juvenile court has subject matter jurisdiction over a juvenile proceeding is outside the scope of the Act.
Despite the State’s misplaced reliance on the Act, we agree
with the State’s ultimate contention that the juvenile court
erred in granting the motions to dismiss the proceedings.
Decisions
of the Nebraska Court of Appeals
18 nebraska appellate reports
918
V. CONCLUSION
We conclude that the Douglas County Separate Juvenile
Court has subject matter jurisdiction to hear this case because
the court has authority to adjudicate Breana as a child within
the meaning of § 43-247(3)(a). In addition, we find that proof
of venue is immaterial when a petition is filed alleging a juvenile to be within the jurisdiction of the Nebraska Juvenile Code.
We find that the juvenile court erred in granting the motions to
dismiss. We therefore reverse the dismissal order and remand
the case for further proceedings.
R eversed and remanded for
further proceedings.
In
re
Guardianship of David G., a minor child.
Dana G., appellant, v. Stephanie P.
and Jack M., appellees.
___ N.W.2d ___
Filed April 5, 2011. No. A-10-927.
1. Judgments: Appeal and Error. An appellate court determines questions of law
independently of the determination reached by the lower court.
2. ____: ____. Generally, the right of the plaintiff to voluntary dismissal is a right
that is not a matter of judicial grace or discretion.
3. Jurisdiction: Dismissal and Nonsuit. A dismissal for lack of subject matter
jurisdiction is not a judgment on the merits and is entered without prejudice.
Appeal from the County Court for Douglas County: Lyn V.
White, Judge. Affirmed as modified.
Catherine Mahern and Patrick Erker, Senior Certified Law
Student, of Milton R. Abrahams Legal Clinic, for appellant.
No appearance for appellees.
Sievers, Carlson, and Cassel, Judges.
Cassel, Judge.
INTRODUCTION
Prior to final submission of Dana G.’s petition for the
appointment of a guardian for a minor child, Dana moved
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