SUMMARY: A denial of a motion to dismiss the motion for termination of parental rights and of a motion for visitation is not a final order the can be directly appealed, because the denial does not affect substantial rights.
Clifford (DOB 2/17/1990), Collette (DOB 2/1/1992) and Chelsea (DOB 12/28/1992) were adjudicated in the juvenile court on November 10, 1994, based on findings that the children were subjected to sexual and physical abuse by their mother, Suzette, and Suzette’s boyfriend. Suzette was subject to a rehabilitation plan that included participation in a program designed for families affected by sexual abuse. The program required that Suzette admit to sexually abusing her children; Suzette refused, and was denied admission to the group. The juvenile court terminated Suzette’s parental rights, but this termination was reversed by the Court of Appeals because it was based on the requirement that Suzette admit to sexual abuse, which violated the 5th Amendment self-incrimination clause. On remand, the juvenile court dismissed the first motion to terminate Suzette’s parental rights. On July 1, 1998, the State filed a second motion to terminate Suzette’s parental rights. Suzette filed a motion to dismiss the second motion to terminate her parental rights on the ground that the motion to terminate was based on a retroactive application of a statutory amendment. Suzette also moved for visitation with her children. The juvenile court denied both motions, and Suzette appealed the denial.
The Nebraska Supreme Court held they did not possess jurisdiction to hear the appeal, because the denial of the motions is not a final order. The Court noted that, following the denial of the motions, Suzette was still subject to the terms of the rehabilitation plan and the stated permanency objection remained reunification. Suzette could still contest the motion to terminate her parental rights at the termination hearing by showing she had rehabilitated herself and achieved permanency. Additionally, the denial of the motion for visitation did not amount to termination of her parental rights because Suzette’s rehabilitation did not hinge solely on whether she engaged in visitation with her children. Suzette’s rehabilitation remained in her own hands.