Miller v. Money ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
MILLER V. MONEY
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).
DAMION R. MILLER, APPELLEE AND CROSS-APPELLEE,
V.
AMY M. MONEY, APPELLEE AND CROSS-APPELLANT, AND RACHEL COOKE, APPELLANT.
Filed March 22, 2016. No. A-15-745.
Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge.
Reversed and remanded with directions.
Jamie C. Cooper, of Cooper Law, L.L.C., for appellant.
Amy M. Money, pro se.
No appearance for appellee Damion R. Miller.
INBODY, PIRTLE, and RIEDMANN, Judges.
PIRTLE, Judge.
FACTUAL BACKGROUND
Rachel Cooke appeals the order of the district court for Douglas County, in which the court
denied her complaint to intervene, and ordered placement of the juvenile, Violet Money, with
Damion R. Miller, the biological father. For the reasons that follow, we reverse, and remand with
directions.
PROCEDURAL BACKGROUND
Violet is the minor child of Miller and Amy M. Money, an unmarried couple. Shortly after
Violet’s birth in December 2012, Money voluntarily placed Violet with Cooke, a family friend.
Miller completed a DNA test in March 2013 which concluded he was Violet’s father. After
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receiving the DNA results he began visiting Violet on weekends while she resided with Cooke. In
March 2015, the Cooke family moved to Florida and Violet moved with them.
Miller filed a complaint to establish paternity against Money on April 24, 2015, seeking
physical and legal custody of the minor child. On April 28, Miller filed a motion for an ex parte
order. The motion alleged Miller exercised parenting time with Violet every weekend and that
Cooke “thwarted” Miller’s attempts to spend more time with Violet. He alleged Cooke had
recently moved to Florida with Violet without the permission or consent of Miller or Money, and
without informing him of her intention to relocate permanently. He alleged that he feared for
Violet’s safety, and feared that he would not see Violet again if she was not returned to Nebraska.
Miller sought legal and physical custody of Violet, an order for Cooke to return Violet to Nebraska,
and a warrant for Cooke’s arrest should she fail to abide by the terms of the order. The district
court denied Miller’s motion for an ex parte order.
On May 1, Miller filed a motion for a temporary order requesting, among other things, the
return of Violet to the State of Nebraska. On May 8, Cooke filed a complaint to intervene alleging
she stood in loco parentis over Violet. Cooke alleged that she was given placement of Violet when
she was six days old, and Violet continued to reside with her. Cooke alleged that she was Violet’s
primary caretaker and provided for the child’s day-to-day needs, including medical care, housing,
and food. Cooke also alleged she and her husband provided for Violet emotionally, and Violet
views Cooke and her husband as her parents, and Cooke’s children as her siblings.
A hearing on Cooke’s complaint to intervene was held on May 18, 2015. Cooke’s counsel
asserted Cooke had a direct and legal interest in the custody matter as she had maintained
placement of Violet since birth and stood in loco parentis over Violet. Money, appearing without
a lawyer, did not object to Cooke’s complaint to intervene. Miller’s counsel objected stating that
she had no legal right to Violet because she was not biologically related to the child. The court
took the matter under advisement, but ordered Violet to be returned to Nebraska no later than June
7, 2015. The court encouraged the parties to work together to maintain regular telephone or Skype
contact “with Ms. Cooke and her children just due to the nature of Violet being in that home for
the last almost three years.”
On July 17, 2015, the court denied Cooke’s complaint to intervene. Cooke timely appealed.
Miller did not file a brief, and Money, as appellee, filed a pro se “cross-brief” wherein she
supported Cooke’s proposed intervention.
ASSIGNMENTS OF ERROR
Cooke asserts the district court abused its discretion in denying her complaint to intervene.
STANDARD OF REVIEW
Whether a party has the right to intervene in a proceeding is question of law. Jeffrey B. v.
Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012).When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion reached by the
trial court. Id.
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ANALYSIS
Cooke asserts the district court erred in denying her petition to intervene. Under Neb. Rev.
Stat. § 25-328 (Reissue 2008):
Any person who has or claims an interest in the matter in litigation, in the success of either
of the parties to an action, or against both, in any action pending or to be brought in any of
the courts of the State of Nebraska, may become a party to an action between any other
persons or corporations, either by joining the plaintiff in claiming what is sought by the
complaint, or by uniting with the defendants in resisting the claim of the plaintiff, or by
demanding anything adversely to both the plaintiff and defendant, either before or after the
issue has been joined in the action, and before the trial commences.
Cooke asserts she should have been allowed to intervene in the paternity action involving
Violet, even though she does not share a biological link to her. She alleges she has a direct legal
interest in the custody proceedings as she stands in loco parentis to Violet.
In Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (2011), the Nebraska Supreme
Court applied the in loco parentis doctrine in a custody dispute involving unmarried domestic
partners who had separated. The plaintiff was found to have standing under the doctrine to seek
custody and visitation of the child born to the other partner during the parties’ relationship. The
court explained that in loco parentis is a common-law doctrine that gives standing to a nonparent
to exercise the rights of a natural parent when the evidence shows that the nonparent’s exercise of
such rights is in the child’s best interests.
This case does not involve standing, but rather the right of a nonparent to intervene in an
existing action. However, the threshold for determining whether a person stands in loco parentis
is the same. 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 the lawful parent. In re Interest of Destiny S.,
263 Neb. 55, 639 N.W.2d 400 (2002). 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 relation.
Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991).
It is clear from the pleadings that Cooke has placed herself in the position of a lawful
parent. While the care she provided for Violet was never formalized as a guardianship, Miller and
Money both allowed Cooke to discharge the duties of a parent for over two years before either
party sought custody of Violet. Miller’s biological relationship to Violet was confirmed in 2013,
yet he did not make any attempt to exercise his parental rights until it became clear that Cooke
intended to relocate to Florida, with Violet, in 2015. Cooke assumed the obligation of caring for
Violet’s physical and emotional needs on a daily basis when Violet was just six days old. Cooke
provided food, shelter, medical care, and emotional support, demonstrating her intention to stand
in loco parentis to Violet. The remaining question is whether, as a non-biological custodian, her in
loco parentis status affords her the right to intervene in a paternity action affecting the minor child.
The Nebraska appellate courts have recognized that certain rights and responsibilities may
arise where a husband elects to stand in loco parentis to his wife’s child. In re Interest of Sarah H.,
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21 Neb. Ct. App. 441, 838 N.W.2d 389 (2013). In In re Interest of Sarah H., this court affirmed the
juvenile court’s finding that the child’s ex-stepfather, Brian, was allowed to intervene as he had
acted in the role of father for the child for a significant portion of the child’s life. The juvenile
court had found that there was a clear showing that Brian possessed an interest as a legal parent
“‘under the doctrine of parens patriae.’” Id. at 451, 838 N.W.2d at 398. Thus, there is a precedent
for allowing intervention of a non-biological custodian who stands in loco parentis to a child. Like
Brian, Cooke has acted in the role of a parent to Violet for nearly her entire life, and continued to
do so at the time Miller’s action was filed.
The in loco parentis doctrine gives standing to a nonparent to exercise the rights of a natural
parent when the evidence shows that the nonparent’s exercise of such rights is in the child’s best
interests. The Nebraska Supreme Court has stated:
[While] it is presumed that a child’s best interest is served by maintaining the family’s
privacy and autonomy, that presumption must give way where the child has established
strong psychological bonds with a person who, although not a biological parent, has lived
with the child and provided care, nurture, and affection, assuming in the child’s eye a
statute like that of a parent. Where such a relationship is shown, our courts recognize that
the child’s best interest requires that the third party be granted standing so as to have the
opportunity to litigate fully the issue of whether the relationship should be maintained even
over a natural parent’s objection.
In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (emphasis in original).
The decision of the district court in this case denied Cooke the right to be heard and to
participate in all proceedings affecting Violet’s welfare and best interests, although she has
assumed this duty of care for the majority of Violet’s life. Further, the district court encouraged
the parties to maintain regular telephone or Skype contact with Cooke and her children “just due
to the nature of Violet having been in that home for the last almost three years.” The court clearly
recognized a psychological bond had been established and found it would be in Violet’s best
interests to maintain the relationship she had built with Cooke and her family. In light of this fact,
we find the district court erred in denying Cooke’s complaint to intervene.
CONCLUSION
For the reasons discussed hereinabove, we conclude that the district court erred in denying
Cooke’s complaint to intervene. We reverse, and remand the cause with directions to grant Cooke
leave to intervene in this matter.
REVERSED AND REMANDED WITH DIRECTIONS.
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