Theodore L. Carlson

This case involved the termination of Jose O.'s parental rights to his two U.S. citizen children, Antonio and Gisela, in Nebraska juvenile court proceedings initiated due to domestic violence between Jose and the children's mother, as well as the children's out-of-home placement. Jose, a Mexican national, appealed the termination order, arguing that the state's failure to notify the Mexican consulate under the Vienna Convention on Consular Relations violated his due process rights. The court affirmed the termination, holding that the lack of consular notification did not deprive Jose of due process because he received notice through counsel, participated in proceedings, and suffered no actual prejudice. The decision also rested on the statutory ground that the children had been in out-of-home placement for more than 15 of the prior 22 months and that termination served their best interests given the history of domestic violence and minimal contact.

family lawcivil rightsimmigrationprocedure

This case involved a juvenile, Sylvester L., who had previously been committed to the Youth Rehabilitation Treatment Center (YRTC) and was on parole when the county attorney filed a motion for new disposition citing new behavioral incidents like disturbing the peace and school aggression. Without filing new petitions or charges under the juvenile code, the juvenile court granted the motion and recommitted Sylvester to YRTC. The Nebraska Court of Appeals reversed and vacated that order, concluding that only the Office of Juvenile Services (OJS) within the Department of Health and Human Services holds statutory authority to revoke parole for juveniles committed to YRTC under Neb. Rev. Stat. §§ 43-404 and 43-416. The court explained that using a motion for new disposition effectively bypassed OJS's parole revocation process and the procedural rights afforded to the juvenile under Neb. Rev. Stat. §§ 43-419 to 43-423.

criminal lawprocedurefamily law

In Rousseau v. Zoning Bd. of Appeals of Omaha, a neighboring property owner challenged the Omaha Zoning Board of Appeals' grant of three variances to a developer seeking to construct a four-unit condominium on a vacant urban lot, including reductions in front and side yard setbacks and the number of required off-street parking spaces. The district court upheld the board's decision after a bench trial, finding that the front-yard variance was unnecessary or minimal and that the neighborhood's high density created sufficient hardship to justify the side-yard and parking variances. On appeal, the Nebraska Court of Appeals affirmed, holding that competent evidence supported the district court's conclusion that the existing development density justified the variances under the applicable standard and that the board's action was neither arbitrary nor unsupported by evidence. The court emphasized that zoning boards have discretion to address conflicts between strict zoning rules and pre-existing urban conditions without judicial substitution of judgment.

propertybusiness & regulatory

This case involved the termination of police officer Christopher Parent's employment by the City of Bellevue for allegedly violating a departmental policy on physical, mental, and emotional health due to difficulty during firearms training caused by his weight. The Nebraska Court of Appeals reversed the district court's remand to the Civil Service Commission, which had treated deadlines in the collective bargaining agreement as jurisdictional requirements for the investigation and disciplinary action. On the merits, the court held that the policy contained only one mandatory provision (requiring officers to meet a "fair" level of fitness under the wellness program manual), which Parent satisfied through accumulated activity points, while the other paragraph was merely directory. The court therefore reversed the Commission's decision upholding the termination and remanded with directions to reverse it.

labor & employmentprocedure

This case involved the State of Nebraska seeking to adjudicate three minor children as juveniles under Neb. Rev. Stat. § 43-247(3)(a) due to allegations of medical neglect, domestic violence, and substance abuse by their father, David H., and to place them in out-of-home foster care. The children were eligible for enrollment with the Rosebud Sioux Tribe, triggering requirements under the Nebraska Indian Child Welfare Act (ICWA). The juvenile court adjudicated the children and ordered continued out-of-home placement, relying on testimony from a Department caseworker. The Nebraska Court of Appeals reversed and remanded, holding that the caseworker was not a qualified expert witness under ICWA because the record did not establish her substantial experience with Indian child and family services or knowledge of tribal child-rearing standards, which is required for foster care placement decisions. The court noted that ICWA expert testimony is not needed for the initial adjudication under state law but is mandatory for the placement order.

family lawcivil rights

The case involved David Goodwin, proceeding pro se, who filed a complaint seeking damages for injuries his minor son Desmond sustained in a car accident with defendant Mathias M. Hobza, along with related medical expenses. At trial, Goodwin offered only medical bills as evidence, which the court excluded due to lack of foundation; he then rested, prompting the court to grant Hobza's motion for directed verdict and dismiss the case. On appeal, the Nebraska Court of Appeals affirmed the dismissal, reasoning that no admissible evidence supported the claim and that a nonattorney parent cannot litigate a minor child's negligence action, rendering any such appeal a nullity.

torts & liabilityprocedurefamily law

This case concerned a divorced father's application to terminate his child support obligation for his minor daughter, whom he claimed had become emancipated by moving out and obtaining full-time employment. The district court dismissed the application, and the Nebraska Court of Appeals affirmed. The court reasoned that the father failed to comply with the statutory requirements of Neb. Rev. Stat. § 42-371.01, which mandates that an application for termination be accompanied by a certified court order of emancipation (which did not exist), and that without such compliance the mother's failure to object did not allow summary termination; the application also could not proceed as a modification of the decree without proper service of process.

family lawprocedure

In State v. Sanders, Leon Sanders, Jr. was convicted of one count of theft by shoplifting from a Hy-Vee store and three counts of burglary at other Lincoln businesses, all occurring on February 27, 2005; the charges were based on surveillance video, a witness identification, admissions to private citizens, and observations of a matching vehicle. Sanders appealed, claiming the trial court erred by denying his motions to exclude identification evidence, statements, and the results of a warrantless vehicle search, by granting the State's motion to join the cases for trial, and by denying relief on claims of ineffective assistance of counsel. The Nebraska Court of Appeals affirmed the convictions, holding that the evidentiary rulings were correct, joinder was proper because the offenses were part of a connected series of events, and counsel's performance did not prejudice Sanders. The court reasoned that the statements were voluntary, the identification was reliable, any search issues did not affect the outcome, and prosecutorial remarks were proper deductions from the evidence.

criminal lawprocedure

In this case, the State filed a petition alleging that juvenile Teneko P. had committed sexual assault, leading to a detention hearing where the juvenile court placed him in temporary custody with the Office of Juvenile Services (OJS) within the Department of Health and Human Services (DHHS) prior to adjudication and ordered OJS to cover placement costs. DHHS appealed the detention order, arguing lack of statutory authority for pre-adjudication commitment to OJS and that OJS should not bear the costs. The Nebraska Court of Appeals reversed the order, holding that statutes in the Nebraska Juvenile Code and the Health and Human Services, Office of Juvenile Services Act do not permit committing a juvenile to OJS custody before adjudication or without an evaluation, and that secure detention placements could not be assigned to DHHS, making the county responsible for costs instead.

criminal lawfamily law

In State v. Cervantes, the defendant pled no contest to possession of methamphetamine in two consolidated cases and admitted to being a habitual criminal under Nebraska law as part of a plea agreement that dismissed other charges. The trial court accepted the pleas after establishing a factual basis through direct questioning of Cervantes about his prior felony convictions and confirming he had been represented by counsel in those proceedings, then imposed concurrent sentences including a 10- to 15-year term enhanced by the habitual criminal finding. Cervantes appealed, arguing that the court erred in sentencing him as a habitual criminal, that his prior convictions were invalid due to inadequate proof of counsel, and that the sentence was excessive. The Nebraska Court of Appeals affirmed, holding that the record sufficiently demonstrated a knowing, voluntary, and intelligent plea supported by a proper factual basis regarding the priors and counsel representation, which resolved all assigned errors. The court defined "proceedings" to include both conviction and sentencing stages where counsel was present.

criminal lawprocedure

This case arose from a commercial lease dispute in which Qwest sued Headliners and related entities for breach of lease, unpaid rent, forcible entry and detainer, and related claims after Headliners allegedly acquired the lessee. Headliners filed a pretrial motion to dismiss under Nebraska pleading rules 12(b)(1), (2), and (6), which the district court overruled. On appeal, the Nebraska Court of Appeals dismissed the case for lack of jurisdiction, holding that an order denying a motion to dismiss is not a final order under Neb. Rev. Stat. § 25-1902 because it is merely a step within the overall action rather than a special proceeding or one affecting a substantial right. The court reached this conclusion by applying the statutory definition of final orders and looking to federal case law interpreting analogous rules, while rejecting arguments that the order was immediately appealable.

procedure

In Michel v. Nuway Drug Service, Inc., a worker who suffered a 1973 workplace gunshot wound resulting in permanent total disability from brain injury and left-sided paralysis sought workers' compensation benefits for a 2001 small bowel obstruction. The Nebraska Workers’ Compensation Court trial court awarded benefits for the obstruction and related care, finding it a compensable consequence of the original injury, and a three-judge review panel affirmed. The Nebraska Court of Appeals upheld the decision, ruling that two medical experts' opinions established causation to a reasonable degree of medical certainty by linking the obstruction to the paralysis and immobility from the brain injury, while the employer's expert opinion was outweighed and other assigned errors were not pursued. The court applied the standard of review limiting reversal to cases lacking sufficient evidence or involving legal errors and found no basis to disturb the award.

labor & employment

In State v. Caniglia, the defendant was convicted of fourth-offense DUI, a Class IV felony, and sentenced to 18 months of probation in Sarpy County District Court, to run concurrently with a similar probation term from Douglas County. After violating probation by consuming alcohol, the Douglas County court terminated her probation and imposed 15 days in jail plus a 15-year license revocation, while the Sarpy County court terminated her probation as unsuccessful without imposing any incarceration, fine, or additional revocation. The State appealed under Neb. Rev. Stat. § 29-2320, claiming the sentence was excessively lenient. The appellate court held that the termination resulted in an excessively lenient sentence that failed to reflect the offense's seriousness, promote respect for the law, or provide just punishment given the defendant's repeated alcohol-related offenses and unsuccessful prior treatments, and it vacated the sentence and remanded for resentencing by a different judge.

criminal lawprocedure

Dr. Aziz Anis sued BryanLGH Health System for negligence after he slipped and fell on ice in a parking garage owned by the hospital. At trial the jury found BryanLGH 32 percent negligent and Anis 68 percent negligent, returning a verdict for the defendant; Anis moved for a new trial, claiming the verdict was an improper quotient verdict reached by chance. The district court denied the motion without an evidentiary hearing or specific findings, and the Nebraska Court of Appeals affirmed. The appellate court held that Anis had not met his burden of proving by clear and convincing evidence that any jury misconduct caused prejudice, noting the absence of proof that jurors had agreed in advance to be bound by an averaging process and that post-verdict polling confirmed the result. The court further observed that Nebraska evidence rules limit inquiry into the jury’s internal deliberations.

torts & liabilityprocedure

This case involves the dissolution of the marriage between Richard and Cheryl Nygren, where Richard appealed the district court's division of property, arguing errors in classifying certain assets as marital property. The Nebraska Court of Appeals determined that the trial court had incorrectly applied a disapproved legal rule regarding jointly titled property and abused its discretion by including some of Richard's nonmarital farm-related assets in the marital estate. The court modified the property division to exclude certain farm equipment from the marital estate and to provide Cheryl with compensation for her contributions to a farm loan, resulting in a net payment from Richard to Cheryl of $2,829.20. The decree was affirmed as modified based on a de novo review of the evidence and applicable precedents like Schuman v. Schuman.

family lawproperty

The case involved a meatpacking business, TCP, seeking coverage from its insurer, Union, for damage to compressors caused by a single-phase power disturbance from an outage at a substation away from the premises. The trial court awarded damages to TCP, but on appeal, the court reversed, holding that the policy's exclusion for power failure occurring away from the described premises applied and that no exception restored coverage. The court reasoned that the policy language was unambiguous, the power failure was the direct cause, and it did not result in a covered cause of loss like fire or explosion. The appellate court vacated the judgment and related awards of fees and costs.

propertybusiness & regulatory

This case involved multiple consolidated juvenile proceedings in Scotts Bluff County Court concerning four children (ages 8-12) alleged to be truant, neglected, or lacking parental care under Nebraska statutes, with the children eligible for Oglala Sioux Tribe enrollment triggering ICWA notice and intervention. The mother requested transfer of jurisdiction to tribal court, which the juvenile court denied after hearings, leading to her appeal. The Nebraska Court of Appeals held that the denials were final, appealable orders but affirmed them, finding no abuse of discretion by the trial court. The core reasoning centered on forum non conveniens factors, including the family's long-term residence in Scotts Bluff County since 1984 (not on the reservation), the location of witnesses and evidence there, the distance to tribal court, and uncertainties about subpoena power, while balancing state and tribal interests without mandatory transfer.

family lawcivil rightsfederal powerprocedure

This case involved a dispute between the Westerbuhrs, who held record title to approximately 227 acres of accretion land along the South Platte River in Section 19, and TBT, which claimed ownership through a quitclaim deed and alleged adverse possession or acquiescence to a fence line as the boundary. The trial court had quieted title in TBT, but the appellate court reversed that decision. The court found that TBT failed to establish the elements of adverse possession by a preponderance of the evidence and that there was no mutual acquiescence to the fence as the boundary, as the Westerbuhrs had paid taxes on the land, used it for hunting and recreation, and understood the river to be the true boundary. The fence maintenance was deemed practical for the Westerbuhrs' own purposes rather than an acknowledgment of TBT's ownership. Accordingly, the court remanded with directions to quiet title in the Westerbuhrs, establishing the boundary at the thread of the river.

property

In this case involving the modification of a paternity judgment, the mother sought permission to relocate with the child to Colorado and an adjustment to child support based on changed circumstances including her employment and education plans. The district court denied the relocation request and granted an increase in child support, which the mother appealed. The appellate court affirmed the denial of relocation and the support increase but modified the order to correct the calculation of the father's mandatory retirement deduction and to apply the increased support retroactively. The core reasoning was that the trial court did not abuse its discretion in most determinations under the relevant guidelines and best interests standards, except for the noted errors in support computation.

family law

This case involved the appeal by Pam N. of a juvenile court order terminating her parental rights to her daughters Shannon and Stacey under Neb. Rev. Stat. § 43-292(2), (6), and (7), based on findings that the children had been in out-of-home placement for over 15 of the prior 22 months, that Pam had failed to complete required evaluations and maintain contact, and that termination served the children's best interests. The Nebraska Court of Appeals affirmed the termination of parental rights after a de novo review confirming the statutory grounds and best-interests determination. However, it reversed the juvenile court's denial of Pam's request for post-termination visitation, holding that the court retained jurisdiction to enter orders consistent with the children's best interests, including potential continued contact, and remanded for further findings on that issue.

family lawprocedure