In re Interest of Thomas M.

the caller’s number, where the call came from, and the time
and length of the call. Landell further testified that the com-
puter servers where the records are stored are serviced and
tested by the company on a regular basis to make sure they
are accurate. We determine that Landell’s testimony provided
sufficient authentication to support the admission of the cel-
lular telephone records. Taylor’s arguments to the contrary are
without merit.
VI. ConCLusIon
For the foregoing reasons, the district court committed
reversible error in giving jury instruction no. 9. Accordingly,
we reverse, and remand the cause for a new trial. on remand,
any step jury instruction given should conform to nJI2d Crim.
3.1, as discussed above.
R eveRsed and Remanded foR a new tRial .
in Re inteRest of thomas m., a child
undeR 18 yeaRs of age .
state of nebRaska , appellee , v. thomas m., appellee ,
and nebRaska depaRtment of health and
human seRvices , appellant.
803 n.W.2d 46
Filed september 16, 2011. 	no. s-10-819.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
3. Moot Question. A case becomes moot when the issues initially presented in
litigation cease to exist or the litigants lack a legally cognizable interest in the
litigation’s outcome.
4. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not
prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts
from exercising jurisdiction.
5. Moot Question: Appeal and Error. under the public interest exception, an
appellate court may review an otherwise moot case if it involves a matter affect-
ing the public interest or when other rights or liabilities may be affected by
its determination.
316 	282 nebrAskA reporTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

6. ____: ____. When determining whether a case involves a matter of public inter-
est, an appellate court considers (1) the public or private nature of the question
presented, (2) the desirability of an authoritative adjudication for future guidance
of public officials, and (3) the likelihood of future recurrence of the same or a
similar problem.
7. Courts: Contempt. Generally, a court may punish for contempt as a part of the
court’s inherent contempt powers.
8. Juvenile Courts: Contempt. The juvenile court, as a court of record, has the
statutory authority pursuant to neb. rev. stat. § 25-2121 (reissue 2008) to pun-
ish contemptuous conduct by fine or imprisonment.
9. ____: ____. To find a party in contempt in juvenile court, there must be a finding
of willful violation of a juvenile court’s order.
10. Final Orders: Notice. Whenever a court must determine an uncertain fact before
entering an order, the party affected by the order is entitled to reasonable notice
and an opportunity to be heard.
11. Jurisdiction: Appeal and Error. It is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
12. Juvenile Courts: Appeal and Error. A proceeding before a juvenile court is a
“special proceeding” for appellate purposes.
13. Final Orders: Appeal and Error. To be final and appealable, an order in a spe-
cial proceeding must affect a substantial right.
14. Final Orders: Words and Phrases. A substantial right is an essential legal right,
not a mere technical right.
Appeal from the County Court for Cheyenne County: R andin
Roland, Judge. Appeal dismissed.
eric 	M. 	stott, 	special Assistant Attorney 	General, 	for
appellant.
krista shaul, Deputy Cheyenne County Attorney, for appel-
lee state of nebraska.
sarah Helvey, for amicus curiae nebraska Appleseed Center
for Law in the public Interest.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
milleR-leRman, J.
I. nATure oF CAse
The nebraska Department of Health and Human services
(DHHs) appeals the July 27, 2010, order of the county court
for 	Cheyenne 	County, 	sitting 	as 	a 	juvenile 	court, 	which
found DHHs in contempt of an order requiring it to identify
In re InTeresT oF THoMAs M. 	317
Cite as 282 neb. 316

appropriate placement, including counseling, for Thomas M.,
a juvenile under the court’s jurisdiction. DHHs also appeals
the August 9, 2010, order in which the court stated that DHHs
would be in contempt of court if it did not provide satisfac-
tory evidence that certain future billings related to Thomas’
placement were timely paid. Although the issues surrounding
the July 27 order are moot, we consider them under the public
interest exception. because the August 9 order is not a final,
appealable order, we do not consider it. In view of the forego-
ing, we dismiss this appeal.
II. sTATeMenT oF FACTs
In April 2010, the county court for Cheyenne County, sit-
ting as a juvenile court, adjudicated Thomas to be a juvenile
within the meaning of neb. rev. stat. § 43-247(1), (2), and
(3)(b) (reissue 2008) on the bases that he had committed
acts which would constitute a felony and misdemeanors and
that he was uncontrollable by his parents. The court ordered
Thomas to be placed in the custody of DHHs and commit-
ted to detention. In May 2010, the court further adjudicated
Thomas to be a juvenile who was mentally ill and dangerous
under § 43-247(3)(c). because of the basis of these adjudica-
tions, Thomas was considered under the nebraska Juvenile
Code as both a law violator and a status offender and therefore
subject to statutory provisions relevant to an adjudication under
§ 43-247(1), (2) and (3). see In re Interest of Katrina R., 281
neb. 907, 799 n.W.2d 673 (2011) (distinguishing between
“status offenders” and “law violators” under nebraska Juvenile
Code). The court ordered placement at a youth detention center
in Gering, nebraska.
After a disposition hearing on July 8, 2010, the court filed
an order in which it required, inter alia, that Thomas participate
in counseling no less than three times per week and that DHHs
arrange such counseling. on July 20, the court held another dis-
position hearing and directed DHHs to provide the court with a
list of appropriate placement locations for Thomas after DHHs
had consulted with a doctor regarding recommended options.
In an order filed July 21, the court stated that if no appropri-
ate placement was immediately available and presented to the
318 	282 nebrAskA reporTs

court at the next placement hearing on July 26, then DHHs
“shall be in contempt of court and pay $400.00 per day into the
Court until Thomas is . . . placed appropriately.”
In an order filed July 27, 2010, following the July 26 place-
ment hearing, the court found that Thomas did not have appro-
priate placement, because DHHs had failed to comply with
the court’s July 8 order requiring DHHs to place Thomas at a
facility which would provide Thomas with counseling no less
than three times per week. The court stated that “[p]ursuant
to this court’s contempt order of July 20, 2010, [D]HHs shall
pay into this Court $400.00 per day until it provides writ-
ten verification that THoMAs . . . is receiving counseling as
ordered.” The court also approved Thomas’ proposed place-
ment at a group home when a bed would become available in
2 to 3 weeks.
Following another placement hearing, the court entered an
order on August 9, 2010, in which it ordered that Thomas be
placed at Colorado boys ranch in La Junta, Colorado. The
court ordered that a representative of DHHs transport Thomas
to the ranch, tour the ranch, meet the staff, and report find-
ings to the court. The court also stated that all billings from
the ranch should be paid within 20 days of receipt and that
“[i]f not paid in full as ordered herein, [D]HHs shall be in
contempt of court and pay $500.00 per day into the court until
the court is provided with satisfactory evidence that the bill
has been paid in full.” The court further ordered that copies of
all billings from the ranch be provided to the court, “with the
court setting a contempt hearing on payment of the same about
twenty days thereafter.”
on August 16, 2010, DHHs filed a notice of appeal in
which it stated its intent to appeal the juvenile court’s orders of
July 27 and August 9.
III. AssIGnMenTs oF error
regarding the July 27, 2010, order, DHHs claims that the
juvenile court erred when it found DHHs in contempt, because
(1) sovereign immunity prevented the court from entering a
contempt order against DHHs, which is an agency of the state
of nebraska, and (2) the court failed to give DHHs proper
In re InTeresT oF THoMAs M. 	319
Cite as 282 neb. 316

notice and an opportunity to be heard on the issue of contempt
and the element of willfulness. regarding the August 9 order,
DHHs claims that the juvenile court erred when it ordered
hearings to determine proof of payment of all billings associ-
ated with Thomas’ placement at the Colorado boys ranch,
because such order interfered with DHHs’ right to contract
without interference.
IV. sTAnDArDs oF reVIeW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings. In re Interest of Jorge O., 280 neb. 411,
786 n.W.2d 343 (2010).
[2] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below. Id.
V. AnALYsIs
1. the July 27, 2010, oRdeR
(a) Although the July 27, 2010, Contempt order
Is Moot, It Will be Considered under the
public Interest exception
The juvenile court found DHHs in contempt at the hearing
of July 26, 2010, and the order was later reduced to writing
and filed on July 27. The contempt order was based on DHHs’
failure to adhere to the court’s placement order, which place-
ment was to have included counseling. Although on appeal the
parties did not raise the issue of mootness with respect to this
contempt order, the record shows that DHHs complied with
the court’s order to arrange counseling for Thomas three times
a week later in the day on July 26. The record from the hear-
ing on August 9 shows that the juvenile court acknowledged
that DHHs had satisfied its order. Thus, DHHs purged itself
of contempt almost immediately and DHHs’ interest in seek-
ing relief from the order of contempt was extinguished. The
contempt issue became moot.
[3-6] We have explained mootness and our authority to
review a moot issue as follows:
320 	282 nebrAskA reporTs

A case becomes moot when the issues initially pre-
sented in litigation cease to exist or the litigants lack a
legally cognizable interest in the litigation’s outcome.
Although mootness does not prevent appellate jurisdic-
tion, it is a justiciability doctrine that can prevent courts
from exercising jurisdiction.
but under the public interest exception, we may review
an otherwise moot case if it involves a matter affecting
the public interest or when other rights or liabilities may
be affected by its determination. And when determining
whether a case involves a matter of public interest, we
consider (1) the public or private nature of the question
presented, (2) the desirability of an authoritative adju-
dication for future guidance of public officials, and (3)
the likelihood of future recurrence of the same or a simi-
lar problem.
Evertson v. City of Kimball, 278 neb. 1, 7, 767 n.W.2d 751,
758 (2009).
This appeal presents valid reasons for applying the public
interest exception. previous appellate cases have questioned
the authority of the juvenile court to hold DHHs or individu-
als associated therewith in contempt, but the issue has evaded
review. e.g., In re Interest of Simon H., 8 neb. App. 225, 590
n.W.2d 421 (1999), overruled on other grounds, Smeal Fire
Apparatus Co. v. Kreikemeier, 279 neb. 661, 782 n.W.2d
848 (2010). We believe authoritative guidance is warranted
regarding the power of the juvenile court to hold DHHs in
contempt for violation of its order. Accordingly, this case falls
within the public interest exception and we consider the con-
tempt issue.
(b) The Juvenile Court Had the power
to Hold DHHs in Contempt
on July 27, 2010, the juvenile court issued the following
written order:
THoMAs . . . does not have appropriate placement
at this time at the Youth Detention Center in Gering,
nebraska due to [D]HHs failing to comply with this
court’s prior order of July 8, 2010 requiring [D]HHs
In re InTeresT oF THoMAs M. 	321
Cite as 282 neb. 316

to provide THoMAs . . . with counseling no less than
three times per week. pursuant to this court’s contempt
order of July 20, 2010, [filed July 21,] [D]HHs shall pay
into this Court $400.00 per day until it provides written
verification that THoMAs . . . is receiving counseling
as ordered.
on appeal, DHHs claims that the juvenile court erred when
it found DHHs in contempt, because the juvenile court did not
have jurisdiction to issue a contempt order due to DHHs’ sov-
ereign immunity. We reject this argument.
[7] We have recognized in a juvenile case that generally, a
court may punish for contempt as a part of the court’s contempt
powers. see In re Interest of Krystal P. et al., 251 neb. 320,
557 n.W.2d 26 (1996). In In re Interest of Krystal P. et al.,
we affirmed an award of attorney fees against DHHs where
DHHs had been held in contempt by the county court sitting
as a juvenile court for failure of DHHs to abide by a visitation
order issued by the juvenile court. We recognized a limited
waiver of sovereign immunity with respect to the issue on
appeal. Implicit in our decision in In re Interest of Krystal P. et
al. was the recognition of the juvenile court’s authority to issue
the visitation and contempt orders and to hold DHHs, which
had appeared in the case, in contempt.
DHHs acknowledges that under the nebraska Juvenile Code,
it became a “‘party’” to the action when the juvenile court
awarded Thomas to the care and custody of DHHs. brief for
appellant at 13. The juvenile court has jurisdiction over DHHs
as the “custodian” of Thomas. see § 43-247(5) (providing that
juvenile court has jurisdiction over “[t]he parent, guardian, or
custodian of any juvenile described in this section”). see, also,
neb. rev. stat. §§ 43-284 (reissue 2008) and 43-285 (Cum.
supp. 2010).
In the instant case, the state, through the county attorney,
initiated the action by filing a juvenile petition as supple-
mented, alleging that Thomas was a child within the meaning
of § 43-247(1), (2), and (3)(b). because the state, through the
county attorney, initiated the action under the juvenile code,
the state had elected to sue and waived sovereign immunity to
the extent encompassed by the juvenile code. see neb. Const.
322 	282 nebrAskA reporTs

art. V, § 22 (providing that state “may sue and be sued, and the
Legislature shall provide by law in what manner and in what
courts suits shall be brought”).
It logically follows that where the state has waived sov-
ereign immunity in the case and the agency (DHHs) has
appeared in the case, the breadth of the waiver by the state is
equally applicable to the agency. see In re Interest of Krystal P.
et al., supra. see, also, Doe v. Board of Regents, 280 neb. 492,
788 n.W.2d 264 (2010) (equating agency and state for pur-
poses of waiver of sovereign immunity); County of Lancaster
v. State, 247 neb. 723, 529 n.W.2d 791 (1995). Given that the
juvenile court had contempt power, as we will explain below,
and given that DHHs had appeared in the case and waived
sovereign immunity, the juvenile court had authority to enforce
its contempt order against DHHs. see, also, neb. rev. stat.
§ 43-246 (Cum. supp. 2010) (providing generally for judicial
procedure through which purposes of nebraska Juvenile Code
shall be enforced).
under § 43-285(1), “the assent of the court” is required
regarding “placement, medical services, psychiatric services,
training, and expenditures on behalf of each juvenile” com-
mitted to DHHs. (emphasis supplied.) under § 43-285(2), the
juvenile court has the authority to order DHHs to prepare and
file a placement plan for the court’s approval. see, also, neb.
rev. stat. § 43-286(1) (reissue 2008) (regarding law viola-
tors); § 43-286(2) (regarding status offenders). section 43-285
has been read to grant broad authority to the juvenile courts
to make orders which are in the best interests of juveniles
under their jurisdictions. see In re Interest of Veronica H., 272
neb. 370, 721 n.W.2d 651 (2006). A placement order is one
such order.
[8] In addition, neb. rev. stat. § 25-2121 (reissue 2008)
provides that “[e]very court of record shall have power to
punish by fine and imprisonment . . . persons guilty of” con-
temptuous conduct. We have repeatedly held that under the
nebraska Juvenile Code, separate juvenile courts and county
courts sitting as juvenile courts are courts of record. see, e.g.,
In re Interest of Tyler T., 279 neb. 806, 781 neb. 922 (2010).
Therefore, the juvenile court, as a court of record, has the
In re InTeresT oF THoMAs M. 	323
Cite as 282 neb. 316

statutory authority pursuant to § 25-2121 to punish contemp-
tuous conduct by fine or imprisonment, as it did in this case.
see Hofferber v. Hastings Utilities, ante p. 215, 803 n.W.2d
1 (2011). We read the July 27, 2010, order as an order of
contempt in which the juvenile court determined at the July
26 hearing that DHHs had failed to comply with the juvenile
court’s properly issued placement order. The failure to place
Thomas where he could receive counseling was the specific
manner in which the placement order was breached. In sum,
the juvenile court had authority to find DHHs in contempt
of its properly issued placement order, although for reasons
explained below, the process by which contempt was found
was flawed.
(c) DHHs Did not receive reasonable notice
and opportunity to be Heard regarding
potential Contempt
The juvenile court’s order filed July 21, 2010, notified
DHHs that “[i]f no appropriate placement is presented to the
Court . . . at the next placement Hearing, [scheduled for July
26,] [D]HHs shall be in contempt of court and pay $400.00 per
day into the Court until Thomas . . . is placed appropriately.”
DHHs was found in contempt. DHHs claims that the notice
of the proceedings of July 26, 2010, as well as the proceeding
itself were flawed. We agree.
The written order of July 21, 2010, did not notify DHHs
of the specific attributes of an “appropriate placement” and,
in particular, failed to advise DHHs that the failure to arrange
counseling three times a week for Thomas would be deemed
insufficient and result in contempt. Further, the record does
not contain a show cause order which would have alerted
DHHs that the counseling feature of the placement was criti-
cal to the juvenile court’s assent to placement and that failure
to provide for this attribute of placement without cause would
result in contempt. see In re Contempt of Potter, 207 neb.
769, 301 n.W.2d 560 (1981) (noting importance of show cause
order prior to holding party in contempt). The notice regard-
ing the hearing of July 26 was inadequate. Finally, a review
of the bill of exceptions of the July 26 hearing fails to show a
324 	282 nebrAskA reporTs

meaningful opportunity for DHHs to submit evidence which
would have negated a finding of a willful violation of the juve-
nile court’s order.
u.s. Const. amend. XIV and neb. Const. art. I, § 3, prohibit
the state from depriving any “person” of life, liberty, or property
without due process of law. Rock Cty. v. Spire, 235 neb. 434,
455 n.W.2d 763 (1990). In the instant case, DHHs is neither a
natural nor an artificial “person” and, therefore, cannot invoke
due process protection against the state. see id. see, also, City
of Lincoln v. Central Platte NRD, 263 neb. 141, 638 n.W.2d
839 (2002); Loup City Pub. Sch. v. Nebraska Dept. of Rev., 252
neb. 387, 562 n.W.2d 551 (1997). Although not framed as a
due process issue, DHHs nevertheless contends and we agree
that adequate notice and a meaningful opportunity to be heard
prior to entry of a contempt order are warranted.
[9,10] To find a party in contempt in juvenile court, there
must be a finding of willful violation of a juvenile court’s
order. see In re Contempt of Miller, 212 neb. 864, 326 n.W.2d
680 (1982). The nebraska Court of Appeals has observed that
only a willful failure to abide by the juvenile court’s order
would be contemptuous and, further, that willfulness is a fact
which must be established on the record. see In re Interest of
Simon H., 8 neb. App. 225, 590 n.W.2d 421 (1999), overruled
on other grounds, Smeal Fire Apparatus Co. v. Kreikemeier,
279 neb. 661, 782 n.W.2d 848 (2010). The Court of Appeals
observed: “It seems basic that whenever a court must determine
an uncertain . . . fact before entering an order, the party affected
by the order is entitled to reasonable notice and an opportunity
to be heard.” Id. at 232-33, 590 n.W.2d at 426. In In re Interest
of Simon H., the Court of Appeals concluded that the contempt
order was void for lack of notice and opportunity to be heard.
In a similar manner, we conclude that the process surrounding
the contempt order of July 27, 2010, stemming from the July
26 hearing was deficient.
2. the august 9, 2010, oRdeR R egaRding payment
is not a final , appealable oRdeR
The juvenile court order filed August 9, 2010, provides
as follows:
In re InTeresT oF THoMAs M. 	325
Cite as 282 neb. 316

6. A copy of all billings from the Colorado boys ranch
shall be provided to the court and all interested parties,
with the court setting a contempt hearing on payment of
the same about twenty days thereafter.
7. All billings from the Colorado boys ranch shall be
paid in full within twenty (20) days of receipt. If not paid
in full as ordered herein, [D]HHs shall be in contempt
of court and pay $500.00 per day into the court until the
court is provided with satisfactory evidence that the bill
has been paid in full.
on appeal, DHHs claims that paragraphs 6 and 7 of the
August 9, 2010, order will interfere with its statutory right to
contract with private institutions and that this juvenile court
order should be reversed. based on the record presented,
DHHs has not yet been held in contempt as a result of this
order. Thus, DHHs’ objection to this order is limited to the
terms of the order itself. We conclude that the order appealed
from is not a final, appealable order.
DHHs refers us to neb. rev. stat. §§ 81-3117 (reissue
2008) (providing generally for duties of chief executive officer
of DHHs, including duty to enter into agreements to provide
services) and 68-1206 (reissue 2009) (providing generally for
DHHs to contract with other social agencies for purchase of
social services) as support of its power to contract with private
institutions. To the extent relevant, reference to neb. rev. stat.
§ 43-290 (reissue 2008) is also made. section 43-290 provides
in part: “If the juvenile has been committed to the care and
custody of [DHHs], the department shall pay the costs for the
support, study, or treatment of the juvenile which are not other-
wise paid by the juvenile’s parent.” (emphasis supplied.)
We recognize that DHHs has a right to enter into contracts
and the responsibility to pay its obligations. We do not read
the juvenile court’s order as interfering with DHHs’ ability to
select vendors or enter into contracts. That is, we do not read
the juvenile court’s order as affecting a substantial right.
[11] In juvenile cases, as elsewhere, we have long observed
that “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., 276 neb. 679, 681, 757 n.W.2d 1, 4 (2008). neb.
326 	282 nebrAskA reporTs

rev. stat. § 25-1911 (reissue 2008) provides for appellate
review of final orders. A final order is defined as “[a]n order
affecting a substantial right in an action, when such order in
effect determines the action and prevents a judgment, and an
order affecting a substantial right made in a special proceeding,
or upon a summary application in an action after judgment . .
. .” neb. rev. stat. § 25-1902 (reissue 2008). since the chal-
lenged order of August 9, 2010, neither determines the action
and prevents a judgment nor was made upon a summary appli-
cation in an action after judgment, we must determine whether
the challenged order affects a substantial right and is made in
a special proceeding.
[12-14] A proceeding before a juvenile court is a “special
proceeding” for appellate purposes. In re Interest of Walter W.,
274 neb. 859, 744 n.W.2d 55 (2008). To be final and appeal-
able, an order in a special proceeding must affect a substantial
right. In re interest of Anthony R. et al., 264 neb. 699, 651
n.W.2d 231 (2002). A substantial right is an essential legal
right, not a mere technical right. In re Estate of Muncillo, 280
neb. 669, 789 n.W.2d 37 (2010).
DHHs has the technical right to enter into contracts. The
August 9, 2010, order does not hinder or affect DHHs’ right
to contract or select contractors based on criteria which meet
the obligations of DHHs. because the August 9 order does not
affect a substantial right of DHHs, it is not a final, appeal-
able order.
VI. ConCLusIon
We conclude that the appeal taken from the July 27, 2010,
order is moot, although we discuss it under the public interest
exception to mootness. We conclude that the August 9 order
does not affect a substantial right and is not a final, appealable
order. Accordingly, we dismiss this appeal.
appeal dismissed.
wRight, J., not participating.
In re InTeresT oF THoMAs M. 	327
Cite as 282 neb. 316