In re Interest of Luis G.

I n re I nterest of LuIs G., a chILd under 18 years of aGe .
state of nebraska , appeLLee , v.
LuIs G., appeLLant.
I n re I nterest of Jose G., a chILd under 18 years of aGe .
state of nebraska , appeLLee , v.
Jose G., appeLLant.
764 N.W.2d 648
Filed February 24, 2009. 	Nos. A-08-770, A-08-777, A-08-778.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, as in any
other appeal, before reaching the legal issues presented for review, it is the duty
of an appellate court to determine whether it has jurisdiction over the matter
before it.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
4. Final Orders: Appeal and Error. The three types of final orders which may be
reviewed on appeal are (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 on summary application in an action after judgment is rendered.
5. Juvenile Courts: Appeal and Error. A proceeding before a juvenile court is a
“special proceeding” for appellate purposes.
6. Final Orders: Words and Phrases: Appeal and Error. For purposes of deter-
mining whether an order affects a substantial right, such that an appeal can be
taken from the order, a “substantial right” is an essential legal right, not a mere
technical right; a substantial right is affected if the order affects the subject matter
of the litigation, such as diminishing a claim or defense that was available to the
appellant prior to the order from which an appeal is taken.
Appeals from the County Court for Hall County: davId a.
bush, Judge. Reversed and remanded with directions.
Jerom E. Janulewicz, of Mayer, Burns, Koenig & Janulewicz,
for appellants.
No appearance for appellee.
I nbody, Chief Judge, and sIevers and Moore, Judges.
IN RE INTEREsT oF luIs g. 	377
Cite as 17 Neb. App. 377
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

I nbody, Chief Judge.
INTRoDuCTIoN
Jose 	g. 	and 	luis 	g. 	appeal 	consolidated 	cases 	Nos.
A-08-770, A-08-777, and A-08-778 from an order of the Hall
County Court, juvenile division, vacating an order regard-
ing Jose and luis’ eligibility for special immigrant juvenile
status. For the following reasons, we reverse, and remand
with directions.
sTATEMENT oF FACTs
In late 2001 or early 2002, Jose and luis came from
guatemala to the united states, undocumented, with their
mother, and eventually to grand Island, Nebraska. After com-
ing to the united states, the boys did not have much, if any,
contact with their father, who did not travel to the united
states with the family. Jose and luis’ older sister and brother
also reside in grand Island.
This appeal arises from three separate juvenile cases in Hall
County Court regarding Jose and luis. In 2005, separate juve-
nile petitions, each arising from separate incidents involving
Jose and luis, were filed, alleging that each child was within
the court’s jurisdiction pursuant to Neb. Rev. stat. § 43-247(1)
(Reissue 2004).
In case No. A-08-770, in 2005, luis admitted to one count
of shoplifting and was placed in the temporary custody of
the office of Juvenile services (oJs) for a residential eval-
uation and was eventually committed to the custody of the
Department of Health and Human services (DHHs), oJs.
In case No. A-08-777, in 2005, Jose admitted to two counts
of trespassing and was committed to the custody of DHHs,
oJs. In 2005, a second petition was filed on Jose, case No.
A-08-778, alleging assault in the third degree, resisting arrest,
and disturbing the peace. since the juveniles have been adju-
dicated, review hearings have been held every 6 months.
Throughout the proceedings, Jose’s permanency objective has
been independent living and luis’ permanency objective has
been guardianship.
In approximately 2006, Jose and luis’ mother was deported
to guatemala after being arrested for an unknown offense. At
378 	17 NEBRAsKA AppEllATE REpoRTs

the time of their mother’s deportation, Jose was living in a
group home and luis was living in a foster home after living
with his older sister.
on May 11, 2007, DHHs filed motions, in each of the three
cases, for an order regarding the minors’ eligibility for special
immigrant juvenile status,
for the reason that the juvenile intends to apply to the
u.s. Bureau of Citizenship and Immigration services
(CIs) for a special Immigrant Juvenile Visa and adjust-
ment of status to permanent resident, and as a part of that
application process, the juvenile must show that he meets
the eligibility requirements, to wit:
1. The juvenile must have been declared dependent
on a u.s. juvenile court or whom the court has commit-
ted to or placed under the custody of a state agency or
department;
2. The juvenile must have been deemed eligible for
long-term foster care;
3. The juvenile is so eligible due to abuse, neglect or
abandonment;
4. It must have been determined in judicial or admin-
istrative proceedings that it is not in the juvenile’s best
interest to be returned to his or his parents’ country of
nationality or last habitual residence;
5. The juvenile must be under the jurisdiction of the
juvenile court;
6. The juvenile must be unmarried;
7. The juvenile must be under the age of 21.
At a hearing on July 10, 2007, DHHs argued that Jose and
luis were attempting to submit applications to federal citizen-
ship and immigration services for permanent status and that it
was necessary for the court to make findings for special immi-
grant status in order to complete that process. specifically,
DHHs argued that Jose and luis had been abandoned as a
result of their mother’s deportation back to guatemala.
on July 23, 2007, the court, in an order regarding the
minors’ eligibility for special immigrant juvenile status, found
that the juveniles were committed to DHHs and remained
under the court’s jurisdiction, eligible for long-term foster
IN RE INTEREsT oF luIs g. 	379
Cite as 17 Neb. App. 377

care; that it was not in the best interests of the juveniles to be
returned to their parents’ country of nationality; and that the
findings were made due to the abuse, neglect, or abandonment
of the juveniles.
At a review disposition hearing on March 25, 2008, the
county court continued the hearing and sua sponte ordered a
consolidated hearing to “determine whether the orders entered
by this Court in July of 2007 regarding the minors’ eligibility
for special immigrant juvenile status should be vacated.” At the
April 22, 2008, hearing, Jose and luis both testified.
Jose testified that he lives with a foster family and attends
high school in grand Island. Jose testified that he was in
the 11th grade and was in the process of “testing out” for a
diploma. Jose explained that he would be finished with school
in a few weeks but would not receive his diploma until May
2009. Jose’s foster mother explained that he was complet-
ing his gED program, but would receive a diploma from the
high school in 2009. Jose testified that he was employed part
time at a fast-food restaurant through a minor’s work permit
and explained that he planned on eventually enlisting with the
Marines or attending community college.
Jose described that he was dealing with depression and
posttraumatic stress disorder. Jose stated that the posttraumatic
stress disorder stemmed from his dreams recalling his father’s
abuse of his mother and from witnessing “[m]urders and dead
bodies” in guatemala. Jose participates in weekly therapy and
takes medication for those problems. Jose explained that if he
were forced back to guatemala, he does not know how he and
luis would survive. Jose described his two uncles, who live
in guatemala and abuse members of the family, and how he
would not feel safe because there is basically “no law” to pro-
tect him and luis. Jose explained that he did not know where
in guatemala his mother was living, because she had been liv-
ing with his grandmother until the grandmother was placed in
the hospital after being beaten by his uncles. When questioned
by the court, Jose testified that when his mother was being
deported, DHHs thought it was best if he did not return to
guatemala with his mother and he did not know why she left
him in the united states.
380 	17 NEBRAsKA AppEllATE REpoRTs

Jose’s foster mother testified that Jose had lived with her
family twice, once for about a year in 2005 to 2006 and again
since March 2007. she testified that in the past year Jose had
been with them, he had had no contact with his mother. Jose’s
foster mother described how Jose had shared with her details
about living in guatemala, such as surviving amongst gangs,
shootings, and death, and how Jose and his siblings were left
to fend for themselves. she testified that she would be willing
to provide “[l]ong-term foster care, guardianship” to Jose if he
were to stay in the united states.
luis also testified at the hearing. luis testified that he
lives in a foster home in grand Island and was in the ninth
grade at a grand Island high school. luis testified that he was
involved in track and was getting “A’s and B’s and some C’s”
in school. luis explained that if he stayed in the united states,
he wanted to try out for cross-country in high school and
then, after high school, to become a welder and enlist in the
Army. luis testified that at the time his mother was involved
in deportation proceedings, he was living with a foster family
after living with his sister. luis explained that the immigration
judge gave him and his mother the choice for luis to return
to guatemala or stay in the united states. luis stated, “It was
50/50. she told me she couldn’t take care of me and I — I
should stay here. ’Cause she can — she can barely take care
of her own stuff.” Both juveniles testified that they had had
little contact with their mother in the last 2 years, apart from
her calling to ask for money. luis described trying to forget
about guatemala because it was a “bad time.” luis testified
that his family “didn’t really have a home,” because they
were always moving from place to place with different rela-
tives. luis also described being abused by his mother with a
belt and the abuse inflicted by his father, in guatemala, with
a belt and/or open hand. luis testified that he participates in
counseling for anger and depression and is taking medication
for “ADHD.”
luis’ foster parent testified that luis had been placed with
her family for about 11⁄2 years. she testified that when luis was
first placed with her family, he was very restless and depressed,
but has since improved and was doing very well in school. she
IN RE INTEREsT oF luIs g. 	381
Cite as 17 Neb. App. 377

testified that at first, luis was very restless because he was wor-
ried about being sent back to guatemala, fearing that he would
have to live in the streets or be killed. she described luis’ tell-
ing her that he had roamed the streets in guatemala and that he
had seen murders occur and dead bodies. she opined that luis
would be better off living in the united states, because she did
not think that there was any family in guatemala who would
be able to protect the boys. she explained that luis’ recent
involvement in sports had really helped him and that her family
was willing to continue to have luis in their home, even if it
were to include a guardianship.
Carissa Cemper, the DHHs foster care caseworker for both
Jose and luis, testified that Jose and luis were currently in
deportation court with an appeal. Cemper testified that if the
county court were to withdraw the special findings for the
boys, they would have to start the immigration process over
and file for asylum. Cemper further testified that the foster
placement of Jose and luis had been successful and that place-
ment with oJs was still appropriate because of Jose’s ongoing
problems at school.
In a June 12, 2008, journal entry, the court stated:
In July of 2007, this Court signed a[n] “order regarding
minor’s eligibility for special immigrant juvenile status”
following a hearing at which no evidence was offered.
In each case the Court found it was not in the best inter-
est of the juvenile to be returned to his country of origin
because of “abuse, neglect, or abandonment of the juve-
nile.” The purpose of this hearing is to determine whether
or not that finding was in error.
At the time of the hearing, the evidence indicated the
juveniles were brought into this country illegally by their
mother sometime in 2001. From the record, it is apparent
the children were here with their mother at least until a
review hearing on December 15, 2005. After that date,
there is no further record of appearance by their mother.
Apparently, at some point, she also ran afoul of the law
and was deported back to guatemala. luis testified when
his mother was deported they were given the opportunity
to return to guatemala with their mother or stay here in
382 	17 NEBRAsKA AppEllATE REpoRTs

the united states in the custody of [DHHs]. Both juve-
niles elected to stay here in the united states.
At the time of the hearing, the juveniles described
their living conditions in their home country prior to
their arrival in the united states. Both [the juveniles’
attorney] and [the attorney representing DHHs] argued
persuasively it is in the best interests of the juveniles
that they remain in this country. The Court is convinced
that is true. However, the Court is equally convinced
there are, in all probability, tens if not hundreds of thou-
sands of people who are here illegally or who would
like to come to the united states because they would
be better off in this country. In addition, the record is
devoid of any credible evidence that their mother abused,
neglected, or abandoned the juveniles. First of all, the
mother brought them here illegally presumably for a bet-
ter life. secondly, a conscious decision was made by this
family to leave the children in the care and custody of
[oJs] when the mother was deported. It is incongruous
for the guardian ad litem or [DHHs] to argue the mother
abused and neglected these children by leaving them
here in the united states and at the same time argue that
by doing so, they were being afforded a better life with
greater opportunity.
For all the foregoing reasons the Court finds that
the orders previously entered by this Court “regarding
minor’s eligibility for special immigrant juvenile status”
should be and the same hereby are vacated.
Jose and luis have timely appealed, and the appellee has
waived submission of a brief and argument in the appeal.
AssIgNMENT oF ERRoR
Jose and luis assign, rephrased and consolidated, that the
county court erred in sua sponte vacating its July 23, 2007,
order due to a lack of evidence of abuse, neglect, or abandon-
ment of the juveniles by their mother.
sTANDARD oF REVIEW
[1] Juvenile cases are reviewed de novo on the record, and
an appellate court is required to reach a conclusion independent
IN RE INTEREsT oF luIs g. 	383
Cite as 17 Neb. App. 377

of the juvenile court’s findings. In re Interest of Tyler F., 276
Neb. 527, 755 N.W.2d 360 (2008); In re Interest of Jeffrey K.,
273 Neb. 239, 728 N.W.2d 606 (2007).
ANAlYsIs
Jurisdiction.
[2,3] In a juvenile case, as in any other appeal, before reach-
ing the legal issues presented for review, it is the duty of an
appellate court to determine whether it has jurisdiction over
the matter before it. In re Interest of Brittany C. et al., 13 Neb.
App. 411, 693 N.W.2d 592 (2005). For an appellate court to
acquire jurisdiction of an appeal, there must be a final order
entered by the court from which the appeal is taken; con-
versely, an appellate court is without jurisdiction to entertain
appeals from nonfinal orders. Id.
[4,5] The three types of final orders which may be reviewed
on appeal are (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 pro-
ceeding, and (3) an order affecting a substantial right made on
summary application in an action after judgment is rendered.
Neb. Rev. stat. § 25-1902 (Reissue 2008). A proceeding before
a juvenile court is a “special proceeding” for appellate pur-
poses. In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d
55 (2008).
[6] since this case is a special proceeding, the analysis next
requires an inquiry into whether the county court’s order vacat-
ing the July 23, 2007, order, that Jose and luis were eligible
for special immigrant juvenile status, affects a substantial right.
For purposes of determining whether an order affects a sub-
stantial right, such that an appeal can be taken from the order, a
“substantial right” is an essential legal right, not a mere techni-
cal right; a substantial right is affected if the order affects the
subject matter of the litigation, such as diminishing a claim or
defense that was available to the appellant prior to the order
from which an appeal is taken. State v. Jackson, 15 Neb. App.
523, 730 N.W.2d 827 (2007).
The Immigration and Nationality Act § 101(a)(27)(J), 8
u.s.C. § 1101(a)(27)(J) (2006); 8 C.F.R. § 204.11 (2008),
384 	17 NEBRAsKA AppEllATE REpoRTs

gives undocumented children, under the jurisdiction of a
juvenile court, the ability to petition for special immigrant
juvenile status in order to obtain lawful permanent residence
in the united states. prior to the June 12, 2008, order, Jose
and luis were eligible and had applied for a valid federal
application for special immigrant juvenile status. In this
specific case, without the order of eligibility, including the
required findings from the state court, Jose and luis would
be barred from proceeding in the federal system with a valid
application for special immigrant juvenile status and would
face deportation to guatemala. The order vacating that eligi-
bility determination effectively terminates the application for
legal permanent residence, clearly affecting a substantial right
of both Jose and luis. Therefore, we determine that the June
12, 2008, journal entry vacating the July 23, 2007, order is a
final, appealable order properly before this court for appel-
late review.
June 12, 2008, Special Immigrant
Juvenile Status Determination.
since we have determined that the order vacating the eligi-
bility for special immigrant status is a final, appealable order,
we can now turn to Jose and luis’ assignments of error. Jose
and luis assign that the county court erred in sua sponte find-
ing that they were not abused, neglected, or abandoned by their
mother and vacating the July 23, 2007, order.
First we address the contention by Jose and luis that the
county court was without power to vacate its July 23, 2007,
findings. In accordance with Neb. Rev. stat. § 43-2,106.02
(Reissue 2008), the juvenile court or county court sitting as
the juvenile court “shall have the power to vacate or modify
its own judgments or orders during or after the term at which
such judgments or orders were made in the same manner as
provided for actions filed in the district court.” Thus, we find
this assignment of error is without merit.
Next, we address Jose and luis’ argument that the county
court erred in finding there was no evidence of abuse, neglect,
or abandonment. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion
IN RE INTEREsT oF luIs g. 	385
Cite as 17 Neb. App. 377

independent of the juvenile court’s findings. In re Interest of
Tyler F., 276 Neb. 527, 755 N.W.2d 360 (2008); In re Interest
of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007).
In order to qualify for an application for special immigrant
juvenile status, a finding by the state court involved is required
determining that a special immigrant is:
an immigrant who is present in the united states—
(i) who has been declared dependent on a juvenile
court located in the united states or whom such a court
has legally committed to, or placed under the custody of,
an agency or department of a state and who has been
deemed eligible by that court for long-term foster care
due to abuse, neglect, or abandonment;
(ii) for whom it has been determined in administrative
or judicial proceedings that it would not be in the alien’s
best interest to be returned to the alien’s or parent’s
previous country of nationality or country of last habit-
ual residence[.]
8 u.s.C. § 1101(a)(27)(J). The eligibility requirements for spe-
cial immigrant status for certain aliens declared dependent on a
juvenile court are that the alien
(1) Is under twenty-one years of age;
(2) Is unmarried;
(3) Has been declared dependent upon a juvenile court
located in the united states in accordance with state law
governing such declarations of dependency, while the
alien was in the united states and under the jurisdiction
of the court;
(4) Has been deemed eligible by the juvenile court for
long-term foster care;
(5) Continues to be dependent upon the juvenile court
and eligible for long-term foster care, such declaration,
dependency or eligibility not having been vacated, termi-
nated, or otherwise ended; and
(6) Has been the subject of judicial proceedings or
administrative proceedings authorized or recognized by
the juvenile court in which it has been determined that it
would not be in the alien’s best interest to be returned to
386 	17 NEBRAsKA AppEllATE REpoRTs

the country of nationality or last habitual residence of the
beneficiary or his or her parent or parents[.]
8 C.F.R. § 204.11(c).
As previously discussed, on July 23, 2007, the county court
made findings of fact that Jose and luis met the eligibility
requirements necessary for special immigrant juvenile status
and, then, in a June 12, 2008, journal entry, the county court
determined that “the record is devoid of any credible evidence
that their mother abused, neglected, or abandoned the juve-
niles” and that “a conscious decision was made by this family
to leave the children in the care and custody of [oJs] when the
mother was deported.”
We have carefully undertaken a de novo review of the
testimony and the record in this case and are required to
reach a conclusion independent of the court’s findings. see,
In re Interest of Tyler F., supra; In re Interest of Jeffrey K.,
supra. We find that the record contains significant evidence
that both Jose and luis met the requirements necessary for
a finding of eligibility for special immigrants, specifically,
that they had been abused, neglected, and/or abandoned.
There was testimony of both luis and Jose that both par-
ents had inflicted physical abuse, hitting them with a belt
and hitting them with an open hand across the back of the
head. The boys testified that their mother failed to take care
of them and could barely take care of herself. Jose testified
that, when he was given a choice to return with his mother
to guatemala or stay in the united states, DHHs thought it
was best for him to stay. luis testified that the choice was
“50/50” and that his mother told him to stay because she
could not take care of him.
Clearly, there is evidence in the record to substantiate a
finding that the boys had been abused, neglected, and/or aban-
doned for purposes of their eligibility for special immigrant
juvenile status, and we find that the county court erred in
vacating the July 23, 2007, order. We, therefore, reverse the
decision of the county court and remand with directions to
reinstate the July 23, 2007, order approving the minors’ eligi-
bility for special immigrant juvenile status.
IN RE INTEREsT oF luIs g. 	387
Cite as 17 Neb. App. 377

CoNClusIoN
upon our de novo review of the record, we find that the
court erred in vacating the order regarding the minors’ eligibil-
ity for special immigrant juvenile status. As such, we reverse
the decision of the county court and remand the cause to the
county court with directions.
reversed and reManded wIth dIrectIons.
388 	17 NEBRAsKA AppEllATE REpoRTs