In re Interest of Marcella B. & Juan S.

I n re I nterest of M arcella B. and Juan s.,
chIldren under 18 years of age .
state of neBraska , appellee , and candIce J. novak ,
guardIan ad lIteM, appellant, v.
latIsha J., appellee .
775 N.W.2d 470
Filed November 24, 2009. 	No. A-09-382.
1. Jurisdiction: Appeal and Error. When a jurisdictional question does not involve
a factual dispute, its determination is a matter of law, which requires an appel-
late court to reach a conclusion independent of the decisions made by the
lower courts.
2. 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.
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. 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.
5. Final Orders: Appeal and Error. There are three types of final orders that can
be reviewed on appeal: an order which affects a substantial right and which deter-
mines the action and prevents a judgment, an order affecting a substantial right
made during a special proceeding, and an order affecting a substantial right made
upon summary application in an action after a judgment is rendered.
6. ____: ____. Orders affecting a substantial right in a special proceeding must, by
definition, meet two requirements: a substantial right and a special proceeding.
7. Juvenile Courts: Appeal and Error. Nebraska law is clearly established that a
proceeding before a juvenile court is a special proceeding for appellate purposes.
8. Final Orders: Appeal and Error. When determining whether an order is final, a
substantial right is an essential legal right, not a mere technical right.
9. ____: ____. When an order affects the subject matter of the litigation, by
diminishing a claim or defense available to a defendant, this affects a substan-
tial right.
10. ____: ____. If an order significantly impinges on a constitutional right, for exam-
ple, parents’ liberty interest in raising their children or a criminal defendant’s
right not to be subjected to double jeopardy, this affects a substantial right.
11. Constitutional Law: Testimony. Nebraska law does not recognize a constitu-
tional right for a victim to testify against the accused.
12. Testimony: Minors. Nebraska law imposes limits on testimony by children,
dependent on age, maturity, and understanding.
13. Juvenile Courts: Parental Rights. The purpose of the adjudication phase of an
abuse and neglect proceeding is to protect the interests of the child.
IN re INTeresT OF mArcellA b. & JuAN s. 	153
cite as 18 Neb. App. 153
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

14. Juvenile Courts: Parental Rights: Testimony: Minors: Proof. On a motion for
a child’s in-chambers testimony, the state must provide the child’s parents with
notice, the court must conduct a hearing to determine if reasons exist to exclude
parents from the child’s testimony, and the state must show that such testimony
in the parents’ presence would be harmful to the child.
15. Juvenile Courts: Parental Rights: Testimony: Minors. The trial court has the
discretion to determine if there are legitimate concerns about the child’s testifying
in front of his or her parents.
16. Juvenile Courts: Child Custody: Appeal and Error. Allowing an interlocutory
appeal promotes significant delay in the juvenile proceedings and the ultimate
resolution of custody.
17. Juvenile Courts: Appeal and Error. Generally, delaying juvenile proceedings to
grant interlocutory appeals is antagonistic to the child’s best interests.
18. Juvenile Courts: Parental Rights: Testimony: Minors. An order ruling on a
motion for in-chambers testimony of a child who was allegedly abused by his or
her parents does not affect a substantial right of the child.
19. Final Orders: Appeal and Error. To fall within the collateral order doctrine, an
order must conclusively determine the disputed question, resolve an important
issue completely separate from the merits of the action, and be effectively unre-
viewable on appeal from a final judgment.
20. Juvenile Courts: Testimony: Minors: Final Orders. Whether a child’s testi-
mony occurs in chambers, in open court during the adjudication hearing, or not
at all is not completely separate from the merits of the action for purposes of the
collateral order doctrine; rather, like discovery motions, the issue is enmeshed in
the merits of the adjudication action.
21. Juvenile Courts: Jurisdiction: Appeal and Error. Neb. rev. stat. § 43-246
(reissue 2008) acknowledges that the juvenile courts have a responsibility to
protect the public peace, but does not confer jurisdiction on an appellate court.
22. Jurisdiction: Final Orders: Appeal and Error. In the absence of a final order
from which an appeal may be taken, the appeal must be dismissed for lack
of jurisdiction.
Appeal from the separate Juvenile court of Douglas county:
vernon danIels, Judge. Appeal dismissed.
candice J. Novak, of Thomas G. Incontro, P.c., l.l.O.,
guardian ad litem.
Thomas c. riley, Douglas county Public Defender, and
martha J. Wharton for appellee latisha J.
sIevers and cassel, Judges, and hannon, Judge, retired.
sIevers, Judge.
latisha J. is the natural mother of marcella b. and Juan
s. The state filed a petition, based upon allegations of
154 	18 NebrAskA APPellATe rePOrTs

physical abuse, to adjudicate the children under Neb. rev.
stat. § 43-247(3)(a) (reissue 2008). before the adjudication
hearing, the appointed guardian ad litem, candice J. Novak,
made a motion to have marcella’s testimony be heard in
chambers. The separate juvenile court of Douglas county
overruled the motion on April 3, 2009 (April 3 order), and
Novak has appealed that order to this court. We dismiss the
appeal because the juvenile court’s April 3 order is not a final,
appealable order, and therefore, this court lacks jurisdiction
over this appeal.
FAcTuAl AND PrOceDurAl
bAckGrOuND
On January 26, 2009, the state filed a petition in the separate
juvenile court of Douglas county, alleging that marcella and
Juan were children within the meaning of § 43-247(3)(a) by
reason of the faults or habits of their natural mother, latisha,
because latisha has subjected marcella to inappropriate physi-
cal contact and failed to provide marcella and Juan with
appropriate care, support, and/or supervision. The state also
filed a motion for temporary custody of marcella and Juan to
be placed with the Department of Health and Human services,
which motion was granted by the court.
On march 3, 2009, Novak filed a motion to allow marcella’s
testimony to be heard in chambers at the adjudication hearing,
which hearing the court had previously set for April 7. The
hearing on Novak’s motion was held on march 9 and 23, when
a therapist who had evaluated marcella testified that having
marcella testify in front of her mother would cause marcella
harm. The court, in its April 3 order, overruled Novak’s motion
for in-chambers testimony because the court could not find
by a preponderance of the evidence that the guardian ad litem
met the burden of proof required by In re Interest of Brian B.
et al., 268 Neb. 870, 689 N.W.2d 184 (2004). The court stated
that it
distinguishes [the therapist’s] speculation in the instant
case from the educated guess of [the] therapist . . .
in Brian B. in the following respect. The therapist in
Brian B. was able to identify how the child’s diagnosis
IN re INTeresT OF mArcellA b. & JuAN s. 	155
cite as 18 Neb. App. 153

manifests itself not only in the larger population, but also
had a basis to render an opinion because of a treatment
history with the child. such is not the situation with [the]
therapist . . . in the instant matter.
Novak filed her notice of appeal of the juvenile court’s April
3 order on April 7, 2009.
AssIGNmeNTs OF errOr
Novak, the guardian ad litem, assigns as error that the juve-
nile court erred when it (1) overruled Novak’s motion to allow
in-chambers testimony; (2) applied an incorrect standard in
determining whether marcella should have been allowed to
testify in chambers; and (3) failed to recognize that marcella
had a right to testify in chambers due to the undisputed evi-
dence of harm that would result from courtroom testimony,
given the rights granted Novak under Neb. rev. stat. § 43-246
(reissue 2008).
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 of the deci-
sions made by the lower courts. In re Interest of Anaya, 276
Neb. 825, 758 N.W.2d 10 (2008).
[2] Juvenile cases are reviewed de novo on the record, and
an appellate court is required to reach a conclusion indepen-
dent of the juvenile court’s findings. In re Interest of Taylor W.,
276 Neb. 679, 757 N.W.2d 1 (2008).
ANAlYsIs
Finality of April 3 Order.
[3] Novak, in her capacity as marcella’s guardian ad litem,
argues that the juvenile court erred in overruling the motion
for in-chambers testimony. However, latisha argues that the
April 3 order was not a final, appealable order, meaning that
this court does not have jurisdiction to review this matter. 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. In re Interest of Taylor W., supra.
156 	18 NebrAskA APPellATe rePOrTs

[4,5] 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. Keef v. State, 262 Neb. 622, 634
N.W.2d 751 (2001). There are three types of final orders that
can be reviewed on appeal: an order which affects a substantial
right and which determines the action and prevents a judgment,
an order affecting a substantial right made during a special
proceeding, and an order affecting a substantial right made
upon summary application in an action after a judgment is ren-
dered. see Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d
430 (1997); Neb. rev. stat. § 25-1902 (reissue 2008). Of the
three types of final orders referenced above, the April 3 order
is clearly not an order that determined the action and prevented
judgment, because the action is ongoing as to all parties. Nor
was it an order made on summary application after judgment,
because there has been no judgment in this case. Therefore,
overruling the motion for in-chambers testimony can be a final
order only if it is an order affecting a substantial right made in
a special proceeding.
[6,7] Orders affecting a substantial right in a special pro-
ceeding must, by definition, meet two requirements: a sub-
stantial right and a special proceeding. see Hernandez v.
Blankenship, 257 Neb. 235, 596 N.W.2d 292 (1999). Nebraska
law is clearly established that a proceeding before a juve-
nile court is a special proceeding for appellate purposes. In
re Interest of Anthony R. et al., 264 Neb. 699, 651 N.W.2d
231 (2002). see In re Interest of R.G., 238 Neb. 405, 470
N.W.2d 780 (1991), disapproved on other grounds, O’Connor
v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998). Therefore,
the inquiry is whether overruling the motion for in-chambers
testimony affected a substantial right of marcella, given that
she is, in essence, the appealing party through her guardian
ad litem. In other words, does marcella have a right to testify
in chambers, instead of in the presence of her mother, and if
so, is such right a “substantial” right? based upon the proce-
dural posture of the case and Novak’s arguments in her brief,
the substantial right that is allegedly affected by the April 3
order is marcella’s right to testify outside the presence of her
mother at the adjudication hearing. However, in neither the
IN re INTeresT OF mArcellA b. & JuAN s. 	157
cite as 18 Neb. App. 153

jurisdiction section nor the argument section of Novak’s brief
does Novak provide statutory or case law authority showing
that the victim of parental abuse has a right, substantial or
otherwise, to testify outside of the presence of the parent who
is the alleged abuser.
[8-10] When determining whether an order is final, a sub-
stantial right is an essential legal right, not a mere technical
right. In re Interest of Enrique P. et al., 14 Neb. App. 453, 709
N.W.2d 676 (2006). When an order affects the subject matter
of the litigation, by diminishing a claim or defense available
to a defendant, this affects a substantial right. Hernandez v.
Blankenship, supra. If an order significantly impinges on a
constitutional right, for example, parents’ liberty interest in
raising their children or a criminal defendant’s right not to
be subjected to double jeopardy, this affects a substantial
right. Id.
It is well established in Nebraska that the relationship
between parent and child is constitutionally protected. In re
Interest of D.W., 249 Neb. 133, 542 N.W.2d 407 (1996). The
right of parents to maintain custody of their child is a natural
right, subject only to the paramount interest which the public
has in the protection of the rights of the child. In re Interest
of Brian B. et al., 268 Neb. 870, 689 N.W.2d 184 (2004).
many cases involving final orders from a juvenile proceeding
pertain to a parent’s right. see, In re Interest of R.G., supra
(temporary order returning custody of juvenile to parent unless
state filed petition requesting continued detention is not final
order, but order to keep juvenile’s custody from parent pending
adjudication hearing was final order); In re Interest of Jaden
H., 10 Neb. App. 87, 625 N.W.2d 218 (2001) (order of partial
summary judgment entered in proceeding to adjudicate child
as lacking proper parental care is final order); In re Interest
of Joshua M. et al., 4 Neb. App. 659, 548 N.W.2d 348 (1996)
(temporary order keeping juvenile’s custody from parent for
short period of time is not final, but order after hearing which
continues to keep custody from parent pending adjudication
hearing is final). The Nebraska supreme court has found that
an order concerning placement or custody of children affects a
substantial right because the parent’s liberty interest in raising
158 	18 NebrAskA APPellATe rePOrTs

his or her children is implicated. In re Interest of R.G., 238 Neb.
405, 470 N.W.2d 780 (1991), disapproved on other grounds,
O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998).
The court specifically considers the object of the order and the
length of time over which the parent’s relationship with the
juvenile could reasonably be expected to be disturbed to deter-
mine if such liberty interest is affected. see id.
However, latisha’s rights to parent are not at issue here.
rather, the question is whether marcella has a right to testify
outside of the presence of her mother. When constitutional
rights, such as a parent’s liberty interest, are not implicated
by the order, we are less likely to find a substantial right. see,
Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009)
(order for physical or mental examination does not affect
substantial right and is not final order); In re Guardianship
of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006) (order
requiring psychological evaluation of mother was not final
order, and order denying mother’s visitation pending final
guardianship hearing was not final order); In re Interest of
Anthony G., 6 Neb. App. 812, 578 N.W.2d 71 (1998) (state’s
parens patriae right is not substantial right, and order returning
custody of child to parents is not final order).
[11,12] There is no precedent recognizing a constitutional
right for a victim to testify against the accused. see, u.s.
const. amend. V and VI; Ambles v. State, 259 Ga. 406, 383
s.e.2d 555 (1989). In Ambles, supra, the Georgia supreme
court found that in a criminal trial for child molestation, wit-
ness competency statutes were constitutional because while a
defendant has a fundamental right in a criminal trial to testify
in his own behalf under the Fifth and sixth Amendments to
the u.s. constitution, no corresponding right of the victim has
been identified. The Georgia court further reasoned that “any
right of the victim to testify in a criminal trial is necessarily
subject to the prosecutor’s discretion . . . . Neither is there
any unqualified right of the state to obtain the testimony of
the victim.” Ambles, 259 Ga. at 409, 383 s.e.2d at 558. The
Georgia court further held that the victim’s right to testify
may be limited by the state legislature for a legitimate pur-
pose. similarly, our precedent imposes limits on testimony by
IN re INTeresT OF mArcellA b. & JuAN s. 	159
cite as 18 Neb. App. 153

children, dependent on age, maturity, and understanding. see,
State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997); State
v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992); State v.
Guy, 227 Neb. 610, 419 N.W.2d 152 (1988). Therefore, we
conclude that marcella has no constitutional right to testify in
juvenile proceedings.
[13-15] We acknowledge that the purpose of the adjudica-
tion phase of an abuse and neglect proceeding is to protect
the interests of the child. In re Interest of Rebekah T. et al., 11
Neb. App. 507, 654 N.W.2d 744 (2002). While we note that the
court has a responsibility to protect marcella, there are safe-
guards in place to protect her from harm caused by testimony
in front of latisha. In re Interest of Danielle D. et al., 257
Neb. 198, 595 N.W.2d 544 (1999), requires, on a motion for a
child’s in-chambers testimony, that the state provide the child’s
parents with notice, that the court conduct a hearing to deter-
mine if reasons exist to exclude the parents from the child’s
testimony, and that the state show that such testimony in the
parents’ presence would be harmful to the child. The trial court
then has the discretion to determine if there are legitimate con-
cerns about the child’s testifying in front of his or her parents.
see id. see, also, In re Interest of Brian B. et al., 268 Neb. 870,
689 N.W.2d 184 (2004). such procedures were followed in this
case. As an analogy, for the court to grant discovery motions,
a moving party must make a showing of good cause, and
such standards serve as protection of the best interests of the
child. see Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28
(2009) (discovery motions ordering psychological examinations
in custody modification are not final orders). The Nebraska
supreme court further says in Steven S. v. Mary S. that error
in granting or overruling discovery motions is also reviewable
at a later stage. A motion for in-chambers testimony would
also be reviewable on appeal. see In re Interest of Danielle D.
et al., supra (trial court’s allowing 16-year-old child to testify
in chambers was abuse of discretion when parents were not
given advance notice of state’s request that child’s testimony
be taken in chambers and state made no showing that presence
of mother and stepfather during child’s testimony would have
been harmful to child).
160 	18 NebrAskA APPellATe rePOrTs

[16,17] Admittedly, if marcella were to testify at the adju-
dication hearing in the presence of her mother, no appellate
court can “undo” that. Nonetheless, “allowing an interlocutory
appeal in this case promotes significant delay in the [juve-
nile] proceedings and the ultimate resolution of . . . custody.”
In re Guardianship of Sophia M., 271 Neb. 133, 138, 710
N.W.2d 312, 317 (2006). Generally, delaying juvenile pro-
ceedings to grant interlocutory appeals is antagonistic to the
child’s best interests. see In re D.W., No. 07-1028, 2007 Wl
2492454 (Iowa App. sept. 6, 2007) (unpublished disposition
listed in table of “Decisions Without Published Opinions” at
741 N.W.2d 821 (Iowa App. 2007)). We agree with the general
concept articulated by the Iowa court.
[18] For these reasons, we find that marcella does not have a
substantial right to testify outside of the presence of her mother
in this juvenile proceeding, and therefore, the April 3 order
denying the motion for in-chambers testimony is not a final
order that is subject to an interlocutory appeal.
Collateral Order Doctrine.
[19,20] Novak also argues that if the order overruling the
motion for in-chambers testimony was not a final order, the
order should nevertheless be reviewable under the collateral
order doctrine. Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718
N.W.2d 531 (2006). To fall within the collateral order doctrine,
an order must conclusively determine the disputed question,
resolve an important issue completely separate from the merits
of the action, and be effectively unreviewable on appeal from a
final judgment. Id. The motion for in-chambers testimony was
conclusively determined by the juvenile court in its April 3
order. However, the second two requirements under the collat-
eral order doctrine are not met. Whether marcella’s testimony
occurs in chambers, in open court during the adjudication hear-
ing, or not at all can hardly be said to be completely separate
from the merits of the action. rather, like discovery motions,
the issue is enmeshed in the merits of the adjudication action.
see State v. Pratt, 273 Neb. 817, 733 N.W.2d 868 (2007). In
addition, as we discussed earlier, a motion for in-chambers
testimony is reviewable on appeal for an abuse of discretion by
IN re INTeresT OF mArcellA b. & JuAN s. 	161
cite as 18 Neb. App. 153

the juvenile court. because all three requirements are not met,
we do not have authority to review the April 3 order under the
collateral order doctrine.
Independent Grounds for Appeal.
[21] Novak also argues that this court should find indepen-
dent grounds for appeal, “pursuant to its obligation to provide
a ‘procedure’ to assure that marcella is afforded ‘care and pro-
tection’ during the juvenile court process” under § 43-246(1)
and (7). brief for appellant at 1. section 43-246 acknowledges
that the juvenile courts have a responsibility to protect the
public peace. specifically, § 43-246(1) states it is the juvenile
court’s responsibility “[t]o assure the rights of all juveniles to
care and protection and a safe and stable living environment
and to development of their capacities for a healthy personal-
ity, physical well-being, and useful citizenship and to protect
the public interest.” similarly, § 43-246(7) states it is the juve-
nile court’s responsibility “[t]o provide a judicial procedure
through which these purposes and goals are accomplished
and enforced in which the parties are assured a fair hearing
and their constitutional and other legal rights are recognized
and enforced.” The preadjudication hearing on the guardian
ad litem’s motion provides that protection. Finally, § 43-246
does not in any way address appellate jurisdiction over juve-
nile proceedings, and we decline to read into such statute any
modification of the appellate courts’ longstanding aversion to
interlocutory appeals except in limited circumstances, which
are not present here.
cONclusION
[22] The juvenile court’s April 3 order was not a final,
appealable order. In the absence of a final order from which an
appeal may be taken, the appeal must be dismissed for lack of
jurisdiction. In re Adoption of Krystal P. & Kile P., 248 Neb.
907, 540 N.W.2d 312 (1995).
appeal dIsMIssed.
162 	18 NebrAskA APPellATe rePOrTs