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                IN RE INTEREST OF ANGELEAH M. & AVA M.
                          Cite as 23 Neb. App. 324




           In   re I nterest of
                              A ngeleah M. and Ava M.,
                   children under 18 years of age.
                   State of Nebraska, appellee, v.
                      D’A ngelo E., appellant.
                                ___ N.W.2d ___

                     Filed October 6, 2015.   No. A-15-176.

 1.	 Judgments: Jurisdiction. A jurisdictional issue that does not involve a
      factual dispute presents a question of law.
 2.	 Juvenile Courts: Appeal and Error. An appellate court reviews juve-
      nile cases de novo on the record and reaches its conclusions indepen-
      dently 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.
 3.	 Jurisdiction: Judgments: Appeal and Error. If a lower court does not
      have subject matter jurisdiction and, therefore, has no power to entertain
      the proceedings or decide a question, an appellate court lacks jurisdic-
      tion to review or evaluate an evidentiary determination for an act outside
      the jurisdiction of the court whose judgment or order is appealed.
  4.	 ____: ____: ____. Although an extrajurisdictional act of a lower court
      cannot vest the appellate court with jurisdiction to review or evaluate
      an evidentiary determination involved in such act, an appellate court
      has jurisdiction and, moreover, the duty to determine whether the lower
      court had the power to enter the judgment or final order sought to
      be reviewed.
 5.	 Juvenile Courts: Jurisdiction: Appeal and Error. Once an appeal has
      been perfected to an appellate court, the trial court is divested of its
      jurisdiction to hear a case involving the same matter between the same
      parties. However, there is statutory authority allowing the juvenile court
      to retain or continue jurisdiction while appeals are pending.
 6.	 Juvenile Courts: Jurisdiction: Parental Rights. Neb. Rev. Stat.
      § 43-295 (Reissue 2008) generally provides a juvenile court with
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               IN RE INTEREST OF ANGELEAH M. & AVA M.
                         Cite as 23 Neb. App. 324

     continuing jurisdiction over a juvenile and empowers the court to order
     a change in the custody or care of any such juvenile if at any time it is
     made to appear to the court that it would be for the best interests of the
     juvenile to make such change.
 7.	 Juvenile Courts: Jurisdiction: Appeal and Error. Although a juvenile
     court retains jurisdiction over a juvenile while an appeal is pending,
     such continuing jurisdiction is not without limits; orders regarding the
     juvenile pending the resolution of an appeal should be made on a tem-
     porary basis.
 8.	 Juvenile Courts: Jurisdiction: Visitation. Neb. Rev. Stat. § 43-295
     (Reissue 2008) provides for the court’s continuing jurisdiction over the
     custody or care of that child, which includes visitation.
 9.	 Juvenile Courts: Final Orders: Parental Rights. An order in a juve-
     nile special proceeding is final and appealable if it affects a parent’s
     substantial right to raise his or her child.
10.	 Child Custody: Visitation: Final Orders: Appeal and Error. Orders
     which temporarily suspend a parent’s custody and visitation rights do
     not affect a substantial right and are therefore not appealable.

  Appeal from the Separate Juvenile Court of Lancaster
County: Roger J. Heideman, Judge. Appeal dismissed.
   Matt Catlett, of Law Office of Matt Catlett, for appellant.
   Joe Kelly, Lancaster County Attorney, and Shellie D. Sabata
for appellee.
   Moore, Chief Judge, and Pirtle and Bishop, Judges.
   Bishop, Judge.
   D’Angelo E. appeals from the decision of the separate
juvenile court of Lancaster County temporarily suspending
his visitation with his daughters, Angeleah M. and Ava M.
D’Angelo argues that the juvenile court did not have jurisdic-
tion to enter an order suspending his visitation when there
was an appeal pending. He also argues that there was no evi-
dence that suspension of visitation was in the children’s best
interests. We find that the juvenile court had continuing juris-
diction to temporarily suspend D’Angelo’s visitation while an
appeal was pending. However, we also find that the temporary
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               23 Nebraska A ppellate R eports
             IN RE INTEREST OF ANGELEAH M. & AVA M.
                       Cite as 23 Neb. App. 324

order was not a final, appealable order, and we therefore dis-
miss this appeal for lack of jurisdiction.

                         BACKGROUND
   D’Angelo is the father of Angeleah, born in 2008, and Ava,
born in 2009. In November 2013, the girls were adjudicated
under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013), due to the
faults or habits of D’Angelo, and D’Angelo’s parental rights to
the girls were terminated. D’Angelo appealed the termination
of his parental rights. In a memorandum opinion, In re Interest
of Angeleah M. & Ava M., No. A-13-1060, 2014 WL 3489846
(Neb. App. July 15, 2014) (selected for posting to court Web
site), this court reversed the termination of D’Angelo’s parental
rights, but affirmed the adjudication; we remanded the matter
back to the juvenile court for further proceedings.
   In September 2014, the juvenile court issued a disposition
order stating that the primary permanency plan was reunifica-
tion with an alternative plan for adoption. Angeleah and Ava
were to remain in the temporary legal custody of the Nebraska
Department of Health and Human Services (DHHS) and were
to remain in their foster home placement. In addition to order-
ing D’Angelo to cooperate with therapeutic visitation, the
juvenile court ordered D’Angelo to sign releases of informa-
tion as requested by DHHS, not use or possess drugs or alco-
hol, cooperate in a parenting assessment and cooperate with
a pretreatment assessment, cooperate with random drug and
alcohol testing, cooperate with all service providers, inform
DHHS of any change in address or telephone number, and
maintain appropriate housing and a legal means of support for
himself and his children. D’Angelo appealed the dispositional
order. In case No. A-14-860, an unpublished memorandum
opinion filed on April 27, 2015, this court affirmed the dispo-
sitional order of the juvenile court.
   On February 13, 2015, while the dispositional order was on
appeal to this court, DHHS filed a motion in the juvenile court
to suspend D’Angelo’s visitation with Angeleah and Ava. On
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             IN RE INTEREST OF ANGELEAH M. & AVA M.
                       Cite as 23 Neb. App. 324

February 17, the juvenile court entered an order temporarily
suspending D’Angelo’s visits pending further hearing on the
matter. A hearing was held on February 18.
   At the hearing on February 18, 2014, various exhibits were
received into evidence and testimony was given. Heather
Post, the girls’ DHHS caseworker, testified regarding DHHS’
recommendation that continuing therapeutic visitation was
not in the children’s best interests. Post testified that she had
attempted to contact D’Angelo on numerous occasions, but
that he failed to respond.
   Post stated that D’Angelo continues to have a relationship
with Claire M., the girls’ mother, who previously relinquished
her parental rights, despite D’Angelo’s denying having con-
tact with her. Post testified that the two have had multiple
law enforcement contacts together since at least September
2014. Exhibits received into evidence show that in February
2015, D’Angelo was charged with “Domestic Assault, 3rd
degree - subsq offense” for an incident occurring in January
in which Claire was the victim; in December 2014, police
were contacted when Claire and D’Angelo failed to return
a vehicle to an automobile dealership after a “‘test drive’”;
and also in December 2014, police were contacted regarding
damage to a hotel room when D’Angelo and Claire got into
an argument.
   Post testified that there were concerns about what appeared
to be ongoing marijuana use by D’Angelo. In Claire’s police
report regarding the January 2015 domestic assault, she stated
that D’Angelo used and sold narcotics. At a February 2015
therapeutic visitation with the girls, their therapist confronted
D’Angelo about an odor of marijuana about his person;
D’Angelo denied he had been smoking marijuana. Also in
February 2015, during a traffic stop of D’Angelo’s vehicle,
an officer noted an odor of marijuana emanating from the
vehicle and a marijuana “‘blunt’” was subsequently found in
the vehicle; a passenger in the vehicle claimed that the blunt
was his.
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            IN RE INTEREST OF ANGELEAH M. & AVA M.
                      Cite as 23 Neb. App. 324

   Post testified that D’Angelo had canceled two of the last
three visits. One of those visits, which was to occur on
February 12, 2015, was canceled because D’Angelo was in
jail; it was Post’s understanding that D’Angelo’s brother, pre-
tending to be D’Angelo, called to cancel the visit saying he
had to work late. Post testified that other than attending thera-
peutic visitation, D’Angelo had not participated in any ordered
serv­ices to reunify with his daughters.
   Post testified that the girls’ therapist had concerns about
D’Angelo’s continuing to see the girls while he was not
engaged in services and that the therapist believed it was
necessary for D’Angelo to be involved in services that would
enable him to gain placement of the girls in order to con-
tinue visits.
   D’Angelo challenged Post’s testimony through cross-­
examination, and he argued to the juvenile court that the
motion to suspend visitation was punitive. D’Angelo’s posi-
tion was that there was no evidence D’Angelo was in custody
and therefore no evidence to indicate he could not have visita-
tion. Further, D’Angelo argued that he had missed only three
visits in 5 months and that there was no evidence that the
children were actually at risk of harm from having supervised
therapeutic visitation 1 hour per week.
   At the conclusion of the hearing on February 18, 2015, the
juvenile court stated it was ordering the “temporary suspension”
of therapeutic visitation, pending the outcome of a parenting
assessment and psychological evaluation. And in its order filed
on February 19, the juvenile court sustained DHHS’ motion
and suspended the therapeutic visitation between D’Angelo
and the girls “pending further order of the Court.” It is from
this order that D’Angelo now appeals.
                ASSIGNMENTS OF ERROR
   D’Angelo assigns (1) the juvenile court did not have juris-
diction to suspend his visitation and (2) there was no evi-
dence that suspension of visitation was in the children’s
best interests.
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             IN RE INTEREST OF ANGELEAH M. & AVA M.
                       Cite as 23 Neb. App. 324

                   STANDARD OF REVIEW
   [1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law. In re Interest of Octavio B. et
al., 290 Neb. 589, 861 N.W.2d 415 (2015).
   [2] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. Id. 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 ver-
sion of the facts over the other. Id.
                           ANALYSIS
   D’Angelo argues that the juvenile court did not have juris-
diction to suspend his visitation with the children because at
the time that order was made, an appeal of the juvenile court’s
dispositional order was pending and the order suspending
visitation did not pertain to the children’s custody or care.
The State argues that the juvenile court retained jurisdiction to
enter an order suspending visitation during the pendency of an
appeal of the initial dispositional order. The State also argues
that the order suspending visitation on a temporary basis does
not affect a parent’s substantial right and is therefore not a
final, appealable order.
   [3,4] If a lower court does not have subject matter jurisdic-
tion and, therefore, has no power to entertain the proceedings
or decide a question, an appellate court lacks jurisdiction to
review or evaluate an evidentiary determination for an act
outside the jurisdiction of the court whose judgment or order
is appealed. In re Interest of L.D. et al., 224 Neb. 249, 398
N.W.2d 91 (1986). However, although an extrajurisdictional
act of a lower court cannot vest the appellate court with
jurisdiction to review or evaluate an evidentiary determina-
tion involved in such act, an appellate court has jurisdiction
and, moreover, the duty to determine whether the lower court
had the power to enter the judgment or final order sought
to be reviewed. Id. Accordingly, we must initially determine
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             IN RE INTEREST OF ANGELEAH M. & AVA M.
                       Cite as 23 Neb. App. 324

whether the juvenile court had jurisdiction to enter the order
suspending D’Angelo’s visitation.
Did Juvenile Court Have Jurisdiction
to Enter Order?
   D’Angelo challenges the juvenile court’s jurisdiction to enter
an order suspending his visitation with his daughters while
D’Angelo’s appeal of the dispositional order was pending.
   [5,6] Nebraska case law generally holds that once an appeal
has been perfected to an appellate court, the trial court is
divested of its jurisdiction to hear a case involving the same
matter between the same parties. In re Interest of Tabatha
R., 255 Neb. 818, 587 N.W.2d 109 (1998). However, there is
statutory authority allowing the juvenile court to retain or con-
tinue jurisdiction while appeals are pending. Neb. Rev. Stat.
§ 43-295 (Reissue 2008) provides:
         Except when the juvenile has been legally adopted,
      the jurisdiction of the court shall continue over any
      juvenile brought before the court or committed under the
      Nebraska Juvenile Code and the court shall have power
      to order a change in the custody or care of any such juve-
      nile if at any time it is made to appear to the court that
      it would be for the best interests of the juvenile to make
      such change.
And Neb. Rev. Stat. § 43-2,106 (Reissue 2008) provides that
the county court, acting as a juvenile court, shall continue
to exercise supervision over the juvenile until a hearing is
had in the appellate court and the appellate court enters an
order making other disposition. Although this statute does
not specifically set forth that same authority for a separate
juvenile court, our Supreme Court has addressed that omis-
sion. In In re Interest of Jedidiah P., 267 Neb. 258, 263,
673 N.W.2d 553, 557 (2004), the Nebraska Supreme Court
found no reason to treat differently a county court sitting as a
juvenile court and a separate juvenile court, and held that “a
separate juvenile court continues to exercise supervision of
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               23 Nebraska A ppellate R eports
             IN RE INTEREST OF ANGELEAH M. & AVA M.
                       Cite as 23 Neb. App. 324

the juvenile during an appeal until the appellate court enters
an order making other disposition.”
   [7] Although a juvenile court retains jurisdiction over a
juvenile while an appeal is pending, as discussed above, such
continuing jurisdiction is not without limits. For example, the
continuing jurisdiction of a juvenile court pending an appeal
does not include the power to terminate parental rights. See In
re Interest of Joshua M. et al., 4 Neb. App. 659, 548 N.W.2d
348 (1996), reversed in part on other grounds 251 Neb. 614,
558 N.W.2d 548 (1997). Similarly, pending an appeal from
an adjudication, the juvenile court does not have the power to
enter a permanent dispositional order; any order regarding the
disposition of a juvenile pending the resolution of an appeal of
the adjudication can only be made on a temporary basis upon a
finding by the court that such disposition would be in the best
interests of the juvenile. In re Interest of Jedidiah P., supra.
As stated by the Nebraska Supreme Court, “The extent of the
court’s jurisdiction must be determined by the facts of each
case.” Id. at 263, 673 N.W.2d at 557. Accordingly, we must
determine whether the juvenile court had continuing jurisdic-
tion to suspend D’Angelo’s visitation while appeal of the dis-
position order was pending.
   Section 43-295 generally provides a juvenile court with con-
tinuing jurisdiction over a juvenile and empowers the court to
“order a change in the custody or care of any such juvenile if
at any time it is made to appear to the court that it would be for
the best interests of the juvenile to make such change.” In In re
Interest of Joshua M. et al., 4 Neb. App. at 670, 548 N.W.2d at
356, this court said that “[s]ection 43-295 is a statutory analog
to Neb. Rev. Stat. § 42-351 (Reissue 1993), which authorizes
a district court, in dissolution proceedings, to exercise juris-
diction regarding minor children ‘to provide for such orders
regarding custody, visitation, or support or other appropriate
orders in aid of the appeal process.’” (Emphasis supplied.)
See, also, In re Interest of L.D. et al., 224 Neb. 249, 398
N.W.2d 91 (1986); In re Interest of Juan L., 6 Neb. App. 683,
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             IN RE INTEREST OF ANGELEAH M. & AVA M.
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577 N.W.2d 324 (1998). We note that Neb. Rev. Stat. § 42-351
(Reissue 2008) has been amended numerous times since 1993,
the version of the statute relied on in In re Interest of Joshua
M. et al., supra. However, the amendments have expanded, not
limited, the types of orders over which the lower court retains
jurisdiction to enter in aid of the appeal process. Further, at
all times, § 42-351 has provided courts with continuing juris-
diction to protect the best interests of children, including the
authority to enter orders regarding visitation.
   In the area of divorce law, this court has stated that
§ 42-351(2) allows lower courts to retain jurisdiction to
enter visitation orders despite the pendency of an appeal. See
Bayliss v. Bayliss, 8 Neb. App. 269, 592 N.W.2d 165 (1999)
(§ 42-351(2) allows district court to enter support and visita-
tion orders pending appeal, but it does not grant authority to
hear and determine anew those very issues then pending on
appeal and to enter permanent orders addressing these issues
during appeal process); Eisenmann v. Eisenmann, 1 Neb. App.
138, 488 N.W.2d 587 (1992) (implicitly stating district court
retains jurisdiction for orders regarding custody or visitation
notwithstanding fact that support issue was on appeal).
   [8] D’Angelo argues that § 43-295 provides for jurisdiction
over only “custody or care” of the juvenile and that DHHS’
motion did not seek a change in “custody or care”; rather, it
sought to suspend visitation. D’Angelo is apparently suggest-
ing that since the word “visitation” is not specifically stated
in § 43-295, the juvenile court has no authority to modify a
parent’s visitation if an appeal is otherwise pending. We are
unwilling to construe the statute in a way that would prevent a
juvenile court from acting on matters affecting the best inter-
ests of children as the statute otherwise permits it to do. Section
43-295 states that a juvenile court has continuing jurisdiction
over a juvenile and authorizes the court to “order a change
in the custody or care of any such juvenile if at any time it
is made to appear to the court that it would be for the best
interests of the juvenile to make such change.” If a juvenile
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             IN RE INTEREST OF ANGELEAH M. & AVA M.
                       Cite as 23 Neb. App. 324

court is presented evidence “at any time” demonstrating that
the best interests of the children may be adversely impacted
unless parental visitation is temporarily suspended, § 43-295
provides for the court’s continuing jurisdiction over the “cus-
tody or care” of that child, which we determine includes visita-
tion. As previously discussed, we have held that § 43-295 is a
statutory analog to § 42-351, and § 42-351 allows lower courts
to retain jurisdiction to enter visitation orders despite the pend­
ency of an appeal in dissolution proceedings. It follows that
§ 43-295 also allows lower courts to retain jurisdiction to enter
visitation orders despite the pendency of an appeal in juvenile
proceedings. Accordingly, the juvenile court in the instant case
had continuing jurisdiction to temporarily suspend D’Angelo’s
visitation while appeal of the disposition order was pending.
See, In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d
553 (2004); Bayliss v. Bayliss, supra.
Do We Have Jurisdiction to Review
Juvenile Court’s Order?
   Having established that the juvenile court had continu-
ing jurisdiction to temporarily suspend D’Angelo’s visitation
while appeal of the disposition order was pending, we must
now determine whether such order of suspension was a final,
appealable order.
   [9] 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 Octavio B. et al., 290 Neb.
589, 861 N.W.2d 415 (2015). 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. Id. Juvenile court
proceedings are special proceedings under Neb. Rev. Stat.
§ 25-1902 (Reissue 2008), and an order in a juvenile special
proceeding is final and appealable if it affects a parent’s sub-
stantial right to raise his or her child. In re Interest of Octavio
B. et al., supra.
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             IN RE INTEREST OF ANGELEAH M. & AVA M.
                       Cite as 23 Neb. App. 324

   [10] The Nebraska Supreme Court has already held that
orders which temporarily suspend a parent’s custody and visi-
tation rights do not affect a substantial right and are therefore
not appealable. See, In re Interest of Danaisha W. et al., 287
Neb. 27, 840 N.W.2d 533 (2013); Steven S. v. Mary S., 277
Neb. 124, 760 N.W.2d 28 (2009); In re Interest of Nathaniel
P., 22 Neb. App. 46, 51, 846 N.W.2d 681, 685 (2014) (“use
of the word ‘suspend’ denotes its temporary nature”). See,
also, In re Interest of Cassandra B. & Moira B., 290 Neb.
619, 861 N.W.2d 398 (2015) (when neither language of order
nor context in which it was entered denotes temporary inter-
ruption of parent’s substantial right, order may be final and
appealable). In this case, the juvenile court’s oral pronounce-
ment on February 18, 2015, and its written order on February
19 temporarily suspended D’Angelo’s therapeutic visitation
with Angeleah and Ava, pending the outcome of a parenting
assessment and psychological evaluation, and was not a final,
appealable order. Accordingly, we dismiss this appeal for lack
of jurisdiction.
                        CONCLUSION
   For the reasons stated above, we find that the juvenile court
had continuing jurisdiction to temporarily suspend D’Angelo’s
visitation while appeal of the disposition order was pending.
However, the juvenile court’s order temporarily suspending
D’Angelo’s visitation was not a final order affecting a sub-
stantial right. Accordingly, we dismiss this appeal for lack
of jurisdiction.
                                            A ppeal dismissed.
