In re Interest of A.W. et al.

appropriate hearing as required by § 42 364(5) and Zahl v. Zahl,
273 Neb. 1043, 736 N.W.2d 365 (2007). We therefore reverse,
and remand the cause for further proceedings on this issue, con
sistent with our opinion.
Finally, we find that the district court did not abuse its dis
cretion in failing to award Donna attorney fees. We affirm this
portion of the district court’s order.
affiRmed in paRt as modified , and in paRt ReveRsed
and Remanded foR fuRtHeR pRoCeedings .
in Re inteRest of a.w. et al ., CHildRen undeR 18 yeaRs of age .
state of nebRaska , appellee , v .
daniel v., appellant .
742 N.W.2d 250
Filed November 27, 2007. 	No. A 07 270.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does
not involve a factual dispute, its determination is a matter of law, which requires
an appellate court to reach a conclusion independent from the decision made by
the lower courts.
2. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are reviewed de
novo on the record, and an appellate court is required to reach a conclusion inde
pendent of the juvenile court’s findings. When the evidence is in conflict, how
ever, an appellate court may give weight to the fact that the lower court observed
the witnesses and accepted one version of the facts over the other.
3. 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.
4. Juvenile Courts: Parental Rights: Final Orders: Appeal and Error. A judicial
determination made following an adjudication in a special proceeding which affects
the substantial right of parents to raise their children is a final, appealable order.
5. Juvenile Courts: Final Orders: Time: Appeal and Error. In juvenile cases,
where an order from a juvenile court is already in place and a subsequent order
merely extends the time for which the previous order is applicable, the subsequent
order by itself does not affect a substantial right and does not extend the time in
which the original order may be appealed.
6. Juvenile Courts: Parental Rights: Visitation: Final Orders. An order terminat
ing visitation is a final order.
7. Juvenile Courts: Parental Rights. The question of whether a substantial right of a par
ent has been affected by an order in juvenile court litigation is dependent upon both the
210 	16 NeBRASkA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

object of the order and the length of time over which the parent’s relationship with
the juvenile may reasonably be expected to be disturbed.
8. Juvenile Courts: Parental Rights: Proof. In order for a court to disapprove of
a plan proposed by the Department of Health and Human Services, a party must
prove by a preponderance of the evidence that the department’s plan is not in the
child’s best interests.
9. Parental Rights. A parent’s incarceration is a factor to consider in determining
whether or not a rehabilitation plan should be adopted for that parent.
Appeal from the County Court for Madison County: R oss a.
stoffeR, Judge. Affirmed.
Courtney klein Faust and Ronald e. Temple, of Fitzgerald,
Vetter & Temple, for appellant.
Gail Collins, Deputy Madison County Attorney, for appellee.
David Uher, guardian ad litem.
inbody, Chief Judge, and iRwin and mooRe, Judges.
mooRe, Judge.
INTRODUCTION
Daniel V., natural father of D.V. and J.V., appeals from the
order entered by the county court for Madison County, sitting
as a juvenile court, approving the case plan and court report
and overruling Daniel’s objection to said report. Although we
conclude that the order did affect a substantial right, we never
theless affirm the order of the lower court.
BACkGROUND
Daniel and his wife, Shelly V., are the natural parents to D.V.
(born February 3, 2003) and J.V. (born February 6, 2004), who
are the children at issue in connection with this appeal. Shelly is
also the natural mother of A.W. and R.W., who are not involved
in the instant appeal. An order was entered on March 16, 2007,
terminating Shelly’s parental rights to all four children, which
order was affirmed by this court in a memorandum opinion filed
October 26, 2007, in case No. A 07 361.
The children were removed from the home of Daniel and
Shelly on February 24, 2005, because drug paraphernalia and
methamphetamine were found in the family home, in addition
IN Re INTeReST OF A.W. eT AL. 	211
Cite as 16 Neb. App. 210

to the poor condition of the home. Following a no contest plea
by the parents, all four children were adjudicated under Neb.
Rev. Stat. § 43 247(3)(a) (Reissue 2004) on July 25. The chil
dren have been in the legal custody of the Department of Health
and Human Services (DHHS) since their removal from the home
and have been placed in foster care. At the October 31 disposi
tion hearing, the case plan and court report prepared September
20, which had reunification as the permanency objective, was
approved. Among other things, Daniel was ordered to refrain
from using drugs, to submit to random drug testing, and to
pursue intensive inpatient treatment. The visitation plan in this
court report provided for visits two to four times per week, for
2 to 6 hours each visit.
A review hearing was held on May 23, 2006, at which time
an April 21 case plan and court report was approved. The per
manency objective at this time remained reunification; however,
there was a concurrent plan of adoption. The report indicated
that Daniel had entered a treatment program on November 7,
2005, but left the program shortly thereafter. The report further
indicated that on March 3, 2006, Daniel pled guilty to felony
drug possession and misdemeanor child abuse and that he was
awaiting sentencing. Daniel entered an intensive inpatient pro
gram in Omaha on April 15. Daniel’s visitation plan provided
for at least one visit per month for 1 hour and provided for
weekly contact following his release from treatment.
The next case plan and court report was prepared on December
19, 2006. This report indicated that Daniel had been sentenced
on June 5 to 16 to 28 months’ incarceration on the child abuse
conviction and 1 year’s incarceration on the drug possession
conviction, to be served consecutively. The report stated that
Daniel was expected to be released from incarceration in August
or September 2007. The visitation plan stated that D.V. and J.V.
were transported to the Omaha Correctional Center every other
month for up to 2 hours. The permanency plan remained reuni
fication with a concurrent plan of adoption.
On January 16, 2007, Daniel filed an “Objection to Case
Plan,” wherein he alleged that the plan was not an accurate
reflection of the progress he had made and that the visitation
212 	16 NeBRASkA APPeLLATe RePORTS

plan for Daniel was not in the best interests of the children.
Daniel asked that the case plan not be accepted or, in the alter
native, that it be amended to reflect his progress and that he be
given bimonthly visitation. The State filed a motion to terminate
Daniel’s parental rights on January 29.
A hearing was held on Daniel’s objection to the case plan
and court report on February 8 and 9, 2007. kari kraenow,
a protection and safety worker with DHHS, testified that the
children had been visiting Daniel every other month, which
visits required a 4 hour automobile trip each way between the
children’s foster home in O’Neill and the correctional facility
in Omaha. Three visits had taken place between the time of
Daniel’s incarceration and the hearing. The children generally
left O’Neill about 9 a.m. and returned to O’Neill about 7:30
p.m. At the time of the hearing, D.V. had just turned 4 and J.V.
had just turned 3. The visits were generally appropriate, with
the children excited to see their father. However, the visits did
not usually last 2 hours, because the children became restless
after approximately 45 minutes. kraenow testified that due to
the rules of the correctional facility, there were not a lot of
activities that the children and Daniel could participate in, other
than reading books. kraenow initially intended for visits to be
once a month but decided after the first visit that it was not
in the children’s best interests, due to the facility rules which
did not promote positive interaction between children and par
ents. kraenow determined that visitation every other month
was appropriate, and she testified that it would not be in the
children’s best interests to increase the frequency of visitation
while Daniel was incarcerated.
kraenow also testified regarding Daniel’s drug treatment.
She indicated that Daniel was placed at the treatment facility in
Omaha in April 2006, but he did not actually begin the program
until May 17, and that he left the program at the time he was
sentenced. kraenow did not have any current information about
programs Daniel had been involved in since his incarceration,
nor had she seen any of his recent drug test results.
Daniel testified that he had completed parenting classes,
as well as phase I of a drug treatment program. He was
IN Re INTeReST OF A.W. eT AL. 	213
Cite as 16 Neb. App. 210

also attending weekly Narcotics Anonymous and Alcoholics
Anonymous meetings. He is currently involved in phase II of
the drug treatment program, attending daily sessions. Daniel had
plans to be finished with phase III of the program by September
2007. Daniel testified that he submits to regular, random drug
tests which have all been negative and that he has not used drugs
since he entered the Omaha treatment facility in May 2006.
Daniel is also taking classes through the GeD program. Daniel
testified that his “jam,” or release, date is January 2008.
At the conclusion of the hearing, the court overruled Daniel’s
objection to the case plan and court report, finding that Daniel
failed to show by a preponderance of the evidence that the
visitation plan was not in the children’s best interests. The court
adopted the case plan and court report. The court entered a writ
ten order on February 9, 2007, which reflected the above deci
sion. The order also noted that the State withdrew its motion
to terminate Daniel’s parental rights. Daniel appeals from the
February 9 order.
ASSIGNMeNT OF eRROR
Daniel asserts that the trial court erred in accepting the case
plan and court report over his objection, which report he argues
limited his visitation with the children to once every 2 months
and omitted information about his drug and alcohol treatment.
STANDARD OF ReVIeW
[1] When a jurisdictional question does not involve a factual
dispute, its determination is a matter of law, which requires
an appellate court to reach a conclusion independent from
the decision made by the lower courts. In re Guardianship of
Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289 (2000).
[2] 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. When the evidence is in conflict,
however, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of
the facts over the other. In re Interest of B.R. et al., 270 Neb.
685, 708 N.W.2d 586 (2005).
214 	16 NeBRASkA APPeLLATe RePORTS

ANALYSIS
Jurisdiction.
Daniel appeals from the dispositional order of February 9,
2007, wherein the trial court overruled his objection and adopted
the case plan and court report dated December 19, 2006. The
State argues that this order was not a final, appealable order
because it did not affect a substantial right of Daniel.
[3 5] 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 Dakota L. et al., 14 Neb.
App. 559, 712 N.W.2d 583 (2006). It is well settled that a judi
cial determination made following an adjudication in a special
proceeding which affects the substantial right of parents to raise
their children is a final, appealable order. In re Guardianship
of Rebecca B. et al., supra; In re Interest of Clifford M. et al.,
258 Neb. 800, 606 N.W.2d 743 (2000). However, in juvenile
cases, where an order from a juvenile court is already in place
and a subsequent order merely extends the time for which the
previous order is applicable, the subsequent order by itself does
not affect a substantial right and does not extend the time in
which the original order may be appealed. In re Guardianship
of Rebecca B. et al., supra. Accordingly, to determine whether
the review order can be appealed in this case, it is necessary to
consider the nature of the court’s order on February 9, 2007, and
what parental rights, if any, were affected by that order.
Daniel asserts that the case plan and court report that was
adopted at the February 9, 2007, hearing changed his visita
tion with his children from once a month to once every other
month, which limitation on visitation affected a substantial
right. In reviewing the case plan and court reports in the record,
Daniel’s visitation started out with two to four visits per week,
from 2 to 6 hours each visit; then was reduced to once a month;
and finally, was reduced to once every other month. Thus, at
least with respect to visitation, there was a change in the plan
between the previous dispositional orders and the order entered
on February 9.
IN Re INTeReST OF A.W. eT AL. 	215
Cite as 16 Neb. App. 210

[6] This court has recognized that a no contact order or a
no visitation order can significantly impact parental rights and
that a no visitation order can affect a substantial right. See In
re Interest of B.J.M. et al., 1 Neb. App. 851, 510 N.W.2d 418
(1993). We have also held that an order terminating visita
tion is a final order. In re Interest of Zachary L., 4 Neb. App.
324, 543 N.W.2d 211 (1996). While the order in question did
not completely eliminate or terminate visitation, it did reduce
Daniel’s visitation in such a way that it significantly impacted
his parental right.
[7] The question of whether a substantial right of a parent
has been affected by an order in juvenile court litigation is
dependent upon both the object of the order and the length of
time over which the parent’s relationship with the juvenile may
reasonably be expected to be disturbed. In re Guardianship of
Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006); In re Interest
of Zachary W. & Alyssa W., 3 Neb. App. 274, 526 N.W.2d
233 (1994). At the time the order in question was entered,
February 9, 2007, Daniel was going to be incarcerated for
nearly another year.
We conclude that the February 9, 2007, order is of sufficient
importance and may reasonably be expected to last a sufficiently
long period of time that the order affects a substantial right of
Daniel, and hence, it is appealable.
Approval of Plan.
Daniel contends that the lower court erred in approving the
case plan and court report over his objection, which report he
argues limited his visitation with the children to once every 2
months and omitted information about his drug and alcohol
treatment. After reviewing the record de novo, we conclude that
the juvenile court did not err in adopting DHHS’ recommenda
tion with regard to Daniel’s visitation with the children.
[8] While Neb. Rev. Stat. § 43 285 (Reissue 2004) grants
a juvenile court discretionary power over a recommendation
proposed by DHHS, it also grants preference in favor of such
proposal. In order for a court to disapprove of a plan proposed
by DHHS, a party must prove by a preponderance of the evi
dence that DHHS’ plan is not in the child’s best interests. In re
216 	16 NeBRASkA APPeLLATe RePORTS

Interest of Tabatha R., 255 Neb. 818, 587 N.W.2d 109 (1998).
See § 43 285.
[9] The evidence at the review hearing shows that Daniel’s
visitation was reduced because of his incarceration and the
attendant circumstances of the incarceration, including the
lengthy travel required of the children to visit Daniel at the cor
rectional facility and the inability to have positive, meaningful
interaction between Daniel and the children while at the facil
ity. The Nebraska Supreme Court has recognized that a parent’s
incarceration is a factor to consider in determining whether or
not a rehabilitation plan should be adopted for that parent. In re
Interest of Tabatha R., supra.
We conclude that Daniel failed to establish that DHHS’
proposal with respect to visitation was not in the children’s
best interests. Accordingly, we affirm the decision of the lower
court adopting the case plan and court report and overruling
Daniel’s objection.
affiRmed .
IN Re INTeReST OF A.W. eT AL. 	217
Cite as 16 Neb. App. 210