In re Interest of Carter P. & Isabel P. ( 2017 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF CARTER P. & ISABEL P.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF CARTER P. AND ISABEL P., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
TODD H. AND KELLI H., APPELLANTS.
Filed November 14, 2017. No. A-17-050.
Appeal from the Separate Juvenile Court of Douglas County: ELIZABETH CRNKOVICH,
Judge. Affirmed.
Jeff T. Courtney, P.C., L.L.O., and, on brief, Brian J. Muench for appellants.
No appearance for appellee.
PIRTLE, RIEDMANN, and ARTERBURN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Todd H. and Kelli H. appeal from an order of the separate juvenile court of Douglas County
denying their motion for leave to intervene in the juvenile proceedings for Carter P. and Isabel P.
For the reasons that follow, we affirm.
BACKGROUND
This action arises out of a juvenile proceeding involving Carter P., born in 2009, and Isabel
P., born in 2005. The State filed a petition alleging that the children came within the meaning of
Neb. Rev. Stat. § 43-247(3)(a) in April 2014. On the same day, the State also filed an ex parte
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motion for temporary custody of the children. In the petition, the State alleged that the children’s
mother was deceased and their father had engaged in domestic violence with their mother in the
children’s presence and that he had failed to provide the children with proper parental care,
support, and/or supervision. The juvenile court granted custody of the children to the Nebraska
Department of Health and Human Services (DHHS), with the children to be placed in foster care.
The children were subsequently placed with Todd and Kelli for foster placement. Kelli is related
to the children’s biological mother, although it is not clear from the record whether Kelli is the
children’s aunt or great-aunt. Both children and their biological mother had been living with Todd
and Kelli at the time of the mother’s death in April 2014.
The children’s father subsequently relinquished his parental rights in April 2015. The
children continued in their placement with Todd and Kelli with the permanency objective of
adoption.
At a review hearing on July 13, 2016, following the receipt of unfavorable information
regarding Todd and Kelli, the juvenile court ordered the removal of the children from their foster
care placement and stated it that would not be proceeding with adoption. The children were
subsequently moved to a new foster care placement.
Todd and Kelli filed a motion for leave to intervene in the juvenile case in October 2016.
In their motion, they asserted that they stood in loco parentis to the children and therefore had a
right to intervene as a matter of law. The juvenile court denied the motion to intervene, finding
that they lacked the requisite standing. Todd and Kelli now appeal the denial of their motion.
ASSIGNMENTS OF ERROR
Todd and Kelli assign that the juvenile court erred in denying their motion for leave to
intervene.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches a conclusion
independently of the juvenile court’s findings. In re Interest of Enyce J. & Eternity M., 291 Neb.
965, 870 N.W.2d 413 (2015). Whether a party has the right to intervene is a question of law. Id.
When reviewing questions of law, an appellate court resolves the questions independently of the
conclusions reached by the trial court. Id.
ANALYSIS
Todd and Kelli argue that the juvenile court erred in denying their motion for leave to
intervene. They claim that the record shows that they stood in loco parentis to the children for over
two years and that their actions in regards to caring for the children as well as the bond they have
formed with the children provide a sufficient basis to allow them to intervene in the underlying
matter. We disagree.
The Nebraska Juvenile Code defines “parties” as the juvenile over which the juvenile court
has jurisdiction under Neb. Rev. Stat. § 43-247 (Reissue 2016) and his or her parent, guardian, or
custodian. In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002), disapproved in part,
In re Interest of Enyce J. & Eternity M., supra. While the juvenile code does not contain specific
provisions governing the rights of other persons to intervene in juvenile proceedings, the rules for
intervention in civil cases provide a guidepost in determining whether a person has the right to
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intervene in such proceedings. In re Interest of Enyce J. & Eternity M., supra. As a prerequisite to
intervention, the intervenor must have a direct and legal interest of such character that the
intervenor will lose or gain by the direct operation and legal effect of the judgment which the court
may render in the action. Id. An indirect, remote, or conjectural interest in the result of a suit is not
enough to establish intervention as a matter of right. Id. An intervenor joins the proceedings as a
party to defend his own rights or interests. Id.
Todd and Kelli claim they stood in loco parentis based upon the two years they spent as
foster parents. However, the Nebraska Supreme Court has held that foster parents are not entitled
to intervene as a matter of right. Id. See, also, In re Interest of Destiny S., supra. While foster
parents do have a right to participate in review hearings under Neb. Rev. Stat. § 43-1314 (Reissue
2016), that ability to participate does not give them an interest sufficient to warrant intervention as
a matter of right. In re Interest of Destiny S., supra. Nor is there an equitable right to intervene in
juvenile proceedings. See In re Interest of Enyce J. & Eternity M., supra. Because Todd and Kelli’s
claim of loco parentis stems from their status as prior foster parents, we determine that they had
no statutory right to intervene. As the Supreme Court observed in In re Interest of Enyce J. &
Eternity M., foster parents do not stand in loco parentis to their ward because they do not exercise
the rights, duties, and liabilities of a lawful parent. DHHS’ regulations limit a foster parent’s role
to something decidedly less than that of a lawful parent. Id. Additionally, we note that Todd and
Kelli were no longer foster parents at the time that they filed their petition to intervene; rather, they
were former foster parents. Because it is clear that foster parents do not have a right to intervene,
it follows that former foster parents asserting loco parentis status based on their prior service as
foster parents also do not possess such a right.
Todd and Kelli argue that this court’s findings in In re Interest of Sarah H., 21 Neb. Ct. App.
441, 838 N.W.2d 389 (2013), support finding that they have sufficient legal interest to intervene
in the present case. We disagree.
A person standing in loco parentis to a child is one who has put himself or herself in the
situation of a lawful parent by assuming the obligations incident to the parental relationship,
without going through the formalities necessary to a legal adoption, and the rights, duties, and
liabilities of such person are the same as those of a lawful parent. In re Interest of Destiny S., supra.
The assumption of the relationship is a question of intention, which may be shown by the acts and
declarations of the person alleged to stand in that relationship. Id.
In In re Interest of Sarah H., supra, we upheld the juvenile court’s order allowing a party
who was found to not be the child’s biological father to intervene in the proceedings. While both
that case and the case before us now involve a party’s right to intervene, the facts in In re Interest
of Sarah H. were substantially different than those here.
In In re Interest of Sarah H., supra, the party seeking to intervene had been married to the
child’s mother at the time of birth, was listed as the father on her birth certificate, was ordered to
pay child support and was given parenting time following the dissolution of his marriage to the
child’s mother, and was held out to be the biological father until the child was 15 years old. Id. We
found that he stood in loco parentis for the first 15 years of the child’s life and that, “[o]n the
narrow facts of this case,” he possessed sufficient interest to be entitled to intervene. Id. at 454,
838 N.W.2d at 399.
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Here, it is undisputed that neither Todd nor Kelli has ever been held out to be the biological
parent of either child. Todd and Kelli assert that in In re Interest of Sarah H., this court noted the
amount of time that the individual had stood in loco parentis and they argue that they stood in loco
parentis to the children here for more than two years. While the length of time for which a party
has stood in loco parentis is a relevant consideration, it is not dispositive. Furthermore, Todd and
Kelli were foster parents. Nebraska law is clear that foster parents do not have a right to intervene
and therefore their status as such cannot be a basis for allowing intervention under a claim of loco
parentis. Accordingly, we find no merit to this assignment of error.
CONCLUSION
Based upon our review of the record, we affirm the juvenile court’s denial of Todd and
Kelli’s motion for leave to intervene.
AFFIRMED.
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