In re Interest of Joseph C. ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/22/2018 08:17 AM CDT
- 848 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSEPH C.
Cite as 299 Neb. 848
In re I nterest of Joseph C., a child
under 18 years of age.
State of Nebraska, appellee,
v. Tina E., appellant.
___ N.W.2d ___
Filed May 4, 2018. No. S-17-961.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion indepen-
dently of the juvenile court’s findings.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
3. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, before reaching 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.
4. Standing: Words and Phrases. Standing involves a real interest in the
cause of action, meaning some legal or equitable right, title, or interest
in the subject matter of the controversy.
5. Standing. Under the doctrine of standing, a court may decline to deter-
mine merits of a legal claim because the party advancing it is not prop-
erly situated to be entitled to its judicial determination.
6. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case, because only a party who has standing may invoke the
jurisdiction of a court.
7. Juvenile Courts: Standing: Appeal and Error. In assessing standing,
the right of appeal in a juvenile case in Nebraska is purely statutory.
8. Statutes: Legislature: Intent. A court gives statutory language its
plain and ordinary meaning and will not look beyond the statute to
determine the legislative intent when the words are plain, direct, and
unambiguous.
- 849 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSEPH C.
Cite as 299 Neb. 848
Appeal from the County Court for Lincoln County: K ent D.
Turnbull, Judge. Appeal dismissed.
James R. Korth and Brock J. Pohlmeier, of Reynolds, Korth
& Samuelson, P.C., L.L.O., for appellant.
Rebecca Harling, Lincoln County Attorney, for appellee.
Michael L. Nozicka, of Nozicka Law Office, guardian
ad litem.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Derr and Urbom, District Judges.
Derr, District Judge.
INTRODUCTION
This appeal arises from termination proceedings for Joseph
C. in the county court for Lincoln County, sitting as a juve-
nile court. Tina E., the biological aunt and adoptive sister of
Joseph’s father, appeals the juvenile court’s order which held
that Joseph’s placement with his nonrelative foster parents and
permanency through adoption by them was in his best inter-
ests. Because Tina lacks standing pursuant to Neb. Rev. Stat.
§ 43-2,106.01(2) (Reissue 2016), her appeal is dismissed.
BACKGROUND
Joseph, born in May 2009, is the biological child of Dana
C. and Michael E. On June 10, 2015, the State, represented
by the county attorney, filed a petition alleging that Joseph,
then age 6, was a child within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Cum. Supp. 2014). Following an adjudica-
tion hearing on September 1, the juvenile court determined
Joseph to be a child as defined by § 43-247(3)(a) (Supp. 2015).
The State later initiated proceedings to terminate Dana’s and
Michael’s parental rights.
After being removed from the care and custody of his
parents, Joseph had two different family placements. Joseph
- 850 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSEPH C.
Cite as 299 Neb. 848
was initially placed with his maternal grandparents, but that
placement was disrupted when the grandparents’ home study
was denied. Subsequently, Joseph was placed in Colorado with
his maternal aunt and uncle. He remained there from August
28, 2015, to June 18, 2016. However, Joseph exhibited behav-
ioral issues at home and at school, and he was removed at the
request of the maternal aunt and uncle, who could not handle
Joseph’s needs.
On June 18, 2016, Joseph was placed in the agency-based
foster home of Heather F. and Kevin F. in Nebraska. Ten days
later, on June 28, the juvenile court filed its order terminating
the parental rights of Joseph’s biological parents pursuant to
Neb. Rev. Stat. § 43-292(1), (2), and (6) (Reissue 2016) and in
accordance with Joseph’s best interests.
On June 30, 2016, 2 days after the termination of parental
rights, Tina was located through a “Family Finding” contract
with the Nebraska Department of Health and Human Services
(the Department). Tina, who lives in Wyoming with her hus-
band, Rodney E., is the biological aunt of Joseph’s father,
Michael. Tina’s parents adopted Michael; therefore, in addition
to being Michael’s biological aunt, Tina is Michael’s adop-
tive sister.
Tina was unaware of Joseph’s existence until July 2016, not
long after Dana’s and Michael’s parental rights were termi-
nated. Tina immediately made efforts through the Department
to be involved in Joseph’s life.
In December 2016, the Department completed a home study
for Tina and Rodney, and they were approved for placement
in January 2017. Upon the recommendation of Joseph’s thera-
pist, Joseph was slowly introduced to the concept of Tina and
Rodney through their letters and pictures. Tina was allowed to
meet Joseph in person for the first time on February 7, 2017, 7
months after she learned of his existence.
Following a status hearing on February 7, 2017, the juve-
nile court adopted the Department’s recommendation that
Joseph remain in his current placement with Heather and
- 851 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSEPH C.
Cite as 299 Neb. 848
Kevin and that the matter be continued to allow the integra-
tion of Tina and Rodney into his life with the goal of placing
him with them. Tina and Rodney continued to have periodic
visitation with Joseph.
On May 2, 2017, the juvenile court conducted a review hear-
ing. It adopted the case plan and court report recommending
eventual placement with Tina and Rodney, modified to include
the recommendations of Joseph’s therapist as to the process of
working toward placement with them.
On June 21, 2017, the juvenile court held a placement
hearing. The Department sought a change in Joseph’s place-
ment based on a material change in circumstances, i.e., the
discovery of Tina, a family member willing and qualified
to adopt Joseph. The State and Joseph’s guardian ad litem
opposed placement with Tina. Tina attended the hearing with-
out counsel and made no motion to intervene. Following
the hearing, the juvenile court took the matter of placement
under advisement.
On August 4, 2017, the juvenile court filed an order find-
ing that, even assuming the Department had proved a material
change in circumstances, the “current placement is in Joseph’s
best interest and that permanency through adoption with his
foster parents [is] in Joseph’s best interest.” In so finding, the
juvenile court noted that it was not concerned about any fault
or infirmity of relative placement and that Joseph’s time in
foster care was not a reason, in and of itself, to deny placement
with Tina. However, the juvenile court observed that “allow-
ing a change of placement is the real and present danger to
Joseph’s long term mental stability due to his current mental
health fragility as a result of multiple changes in placements
relative to his Post Traumatic Stress Disorder.” The juvenile
court determined that any further delay in permanency would
destabilize Joseph’s mental health. The juvenile court set the
matter for review on October 3 and ordered the Department to
prepare a case plan consistent with the order.
Tina timely filed her notice of appeal.
- 852 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSEPH C.
Cite as 299 Neb. 848
ASSIGNMENTS OF ERROR
Tina assigns that the juvenile court erred in (1) changing the
permanency objective from “reunification” with her to adop-
tion by Heather and Kevin and (2) failing to change Joseph’s
placement from Heather and Kevin to Tina.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches a conclusion independently of the juve-
nile court’s findings.1
[2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.2
ANALYSIS
[3] On appeal, Tina challenges the order of the juvenile
court that found it was in Joseph’s best interests to continue
placement with Heather and Kevin and to change the perma-
nency plan from adoption by Tina and Rodney to adoption by
Heather and Kevin. In a juvenile case, as in any other appeal,
before reaching the legal issues presented for review, it is the
duty of an appellate court to determine whether it has juris-
diction over the matter before it.3 The State and the guardian
ad litem argue that Tina lacks standing to appeal the juvenile
court’s order. This court agrees.
[4-6] Standing involves a real interest in the cause of action,
meaning some legal or equitable right, title, or interest in the
subject matter of the controversy.4 Under the doctrine of stand-
ing, a court may decline to determine merits of a legal claim
because the party advancing it is not properly situated to be
1
In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d 413
(2015).
2
In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017).
3
In re Interest of Zachary B., 299 Neb. 187, 907 N.W.2d 311 (2018).
4
In re Interest of Jackson E., 293 Neb. 84, 875 N.W.2d 863 (2016).
- 853 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSEPH C.
Cite as 299 Neb. 848
entitled to its judicial determination.5 Standing is a jurisdic-
tional component of a party’s case, because only a party who
has standing may invoke the jurisdiction of a court.6
[7] In assessing standing, this court has stated that the right
of appeal in a juvenile case in Nebraska is purely statutory.7
This court’s recent cases have made clear that § 43-2,106.01,
the juvenile code’s appeal statute, controls who has the right
to appeal from a juvenile court’s placement order.8 Under
§ 43-2,106.01(2), an appeal from a final order entered by a
juvenile court may be taken by
(a) The juvenile;
(b) The guardian ad litem;
(c) The juvenile’s parent, custodian, or guardian. For
purposes of this subdivision, custodian or guardian shall
include, but not be limited to, the Department . . . , an
association, or an individual to whose care the juvenile
has been awarded pursuant to the Nebraska Juvenile
Code; or
(d) The county attorney or petitioner . . . .
Tina is not expressly included in any of these categories.
This court has previously addressed whether relatives not
listed in § 43-2,106.01(2) have standing to appeal a juvenile
court order.9 In In re Interest of Nettie F.,10 this court concluded
that § 43-2,106.01 controlled the matter but did not authorize
an adjudicated child’s sibling to appeal from a juvenile court’s
adverse placement order. In In re Interest of Jackson E.,11
5
In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
6
In re Interest of Jackson E., supra note 4.
7
See id.
8
In re Interest of Nettie F., 295 Neb. 117, 887 N.W.2d 45 (2016); In re
Interest of Jackson E., supra note 4.
9
See, In re Interest of Nettie F., supra note 8; In re Interest of Jackson E.,
supra note 4; In re Interest of Meridian H., supra note 5.
10
In re Interest of Nettie F., supra note 8.
11
In re Interest of Jackson E., supra note 4.
- 854 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSEPH C.
Cite as 299 Neb. 848
this court observed that the right to appeal in a juvenile
case is purely statutory and that neither foster parents nor
grandparents, as such, have a statutory right to appeal from
a juvenile court order pursuant to § 43-2,106.01(2). Further,
this court determined that because the appealing parties, as
former foster parents, were never awarded custody of the
child, they were not custodians or guardians for the purposes
of § 43-2,106.01(2) and did not have standing to appeal on
that basis.
Here, Tina cannot claim a right to appeal under
§ 43-2,106.01(2) as Joseph’s “custodian,” because she has
never had custody of him. Nor can she appeal based on her sta-
tus as the biological aunt and adoptive sister of Joseph’s father,
Michael. Tina’s familial link to Joseph is more remote than
the relationships this court found insufficient to provide stand-
ing in In re Interest of Nettie F. and In re Interest of Jackson
E. This is especially true considering that Michael’s parental
rights to Joseph have been terminated.12 Yet, even if Michael’s
parental rights to Joseph had remained intact, § 43-2,106.01(2)
would not support regarding Tina as one who may appeal a
juvenile court order. Accordingly, Tina has no standing to
invoke the jurisdiction of this court.
Tina argues that the Legislature did not intend § 43-2,106.01(2)
to exclusively govern standing to appeal juvenile matters.
She relies on that section’s provision that “custodian or
guardian shall include, but not be limited to, the Department
. . . , an association, or an individual to whose care the juve-
nile has been awarded pursuant to the Nebraska Juvenile
Code.”13 This court has already considered the Legislature’s
12
In re Interest of Meridian H., supra note 5 (holding, in context of
appeal from juvenile placement order, that grandparents lacked standing,
because any interest or right that they may have had via their biological
relationship to adjudicated child ceased to exist when parental rights of
grandparents’ child, that is, adjudicated child’s parent, were terminated).
13
§ 43-2,106.01(2)(c) (emphasis supplied).
- 855 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSEPH C.
Cite as 299 Neb. 848
purpose in defining “custodian or guardian.” In In re Interest
of Artharena D.,14 this court held that through the language
defining “custodian or guardian,” the Legislature “expressed an
intention to expand the definition of ‘custodian’ . . . to extend
the right of appeal to individuals having the care of a juvenile
by means other than an award under the Juvenile Code.” Thus,
by defining “custodian or guardian,” “the Legislature intended
. . . to ensure that those with alternative custody arrangements,
bestowed outside the courts, have standing to appeal.”15 As
noted above, this court’s recent cases clarify that § 43-2,106.01
alone controls who may appeal from a juvenile court’s place-
ment order,16 and the language defining “custodian or guard-
ian” in § 43-2,106.01(2) does not establish an extrastatutory
path to standing in juvenile appeals, as Tina suggests.
[8] Further, Tina contends that under the facts of this case,
a narrow construction of § 43-2,106.01(2) that denies her and
similarly situated individuals the right to appeal, while allow-
ing only the county attorney and guardian ad litem to appeal,
does not ensure the advancement of the child’s best interests
in all cases and could not represent the Legislature’s intent. A
court gives statutory language its plain and ordinary meaning
and will not look beyond the statute to determine the legisla-
tive intent when the words are plain, direct, and unambigu-
ous.17 The plain language of § 43-2,106.01(2), supplemented
by this court’s interpretation of “custodian,” clearly limits the
right to appeal juvenile orders to a select few, and as explained
above, such language does not encompass Tina, regardless of
her good intentions.
14
In re Interest of Artharena D., 253 Neb. 613, 618, 571 N.W.2d 608, 612
(1997).
15
In re Interest of Jackson E., supra note 4, 293 Neb. at 90, 875 N.W.2d at
868.
16
In re Interest of Nettie F., supra note 8.
17
In re Interest of Nizigiyimana R., 295 Neb. 324, 889 N.W.2d 362 (2016).
- 856 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF JOSEPH C.
Cite as 299 Neb. 848
Finally, Tina points out that Neb. Rev. Stat. § 43-533(4)
(Reissue 2016) provides, “[W]hen a child cannot remain with
parents, [it shall be the policy of the State] to give preference
to relatives as a placement resource.” She asserts that she has
a personal stake in the outcome of Joseph’s case as a conse-
quence of this preference, coupled with the affirmative steps
she and Rodney have taken toward eventual adoption. Tina’s
argument hearkens back to In re Interest of Meridian H.,18
where this court noted that the adjudicated child’s siblings were
not in the categories listed in § 43-2,106.01; but, “[a]ssuming
without deciding that a person who is not statutorily authorized
to appeal from such an order could nevertheless do so,” this
court went on to consider whether the siblings had “a personal
stake in the controversy in order to have standing necessary to
invoke appellate jurisdiction.” However, as stated above, this
court’s more recent opinions have clarified that § 43-2,106.01
exclusively controls who has the right to appeal from a juvenile
court’s placement order.19 The preference for relative place-
ment remains a guiding principle for those involved in perma-
nency planning for adjudicated children,20 and the efforts that
Tina and Rodney have made on Joseph’s behalf are indeed
commendable. But these factors offer no basis to alter this
court’s conclusion that Tina is not entitled to the statutory right
to appeal delineated in § 43-2,106.01(2).
CONCLUSION
For the foregoing reasons, Tina lacks standing, and her
appeal is dismissed.
A ppeal dismissed.
18
In re Interest of Meridian H., supra note 5, 281 Neb. at 476, 798 N.W.2d
at 105.
19
See, In re Interest of Nettie F., supra note 8; In re Interest of Jackson E.,
supra note 4.
20
See § 43-533.