SUMMARY: An order that merely extends the time a previous placement order is applicable, denies a motion for visitation and does not change the essential parts of the permanency plan regarding family preservation or prevent the father from working on the rehabilitation plan is not a final and appealable order.
This is the sixth appeal in a case involving Ethan M., DOB 1/00, who became part of both a neglect proceeding and a divorce proceeding between the mother and father, Daniel. See prior opinions from 2006, 2009 and 2011. After the third appeal, the court ordered in March 2012 that Daniel and Ethan participate in evaluations to assess Ethan’s best interests and the possibility of reunification. Daniel then filed three motions: to change placement to Ethan’s paternal grandparents or to a neutral foster home near Loup City, to order Ethan to stop seeing his current therapist and to find a new one “who is properly credentialed” and to begin visits with Ethan. A May 10, 2012, review hearing was continued to June 29 and then to September 27. After the September 27 hearing, the court entered an order on December 26, 2012, finding that the permanency plan of family preservation with the mother was being achieved by March 2013, granting the motion to change Ethan’s therapist and denying the motions to change placement and for visitation on the basis that it would be harmful to Ethan as Ethan did not want visits with Daniel. Daniel appealed.
The Nebraska Court of Appeals dismissed the appeal for lack of jurisdiction. As to the order denying visitation, the Court of Appeals referenced In re Interest of Clifford M., et al., 258 Neb. 800, 606 N.W.2d 743 (2000) and found a similar circumstance with Ethan where the court did not terminate Daniel’s visitation or preclude him from renewing his motion after therapy begins. It concluded that the denial of visitation didn’t affect a substantial right. As to the motion to change placement, the Court of Appeals found that the order merely repeated prior orders on placement and therefore the appeal was a collateral attack on a prior judgment. Finally, on the issue of changing a permanency plan, the Court of Appeals cited cases establishing that a change in permanency plan is appealable only if the change actually limits the ability of the parent to work on the rehabilitation plan. See In re Interest of Tayla R., 17 Neb. App. 595, 767 N.W.2d 127 (2009) and In re Interest of Diana M. et al., 20 Neb. App. 472, 825 N.W.2d 811 (2013). In this case, the Court of Appeals found that the December 2012 order continued a permanency plan of family preservation with the mother that had already been occurring for many months and the court’s delaying the ruling on a concurrent plan did not eliminate efforts of reunification with Daniel. The Court of Appeals closed by expressing concern about the speed at which the parties were complying with its prior ruling of devising rehabilitative goals to facilitate reunification with Daniel.