In re Interest of Enyce J. & Eternity M. ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF ENYCE J. & ETERNITY M.
Cite as 291 Neb. 965
In re I nterest of
Enyce J. and Eternity M.,
children under18 years of age.
State of Nebraska, appellee, v. Erica J.,
appellee, M ark S., appellant, and
Roberta S., appellee.
___ N.W.2d ___
Filed October 16, 2015. No. S-14-1168.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Judgments: Jurisdiction. A jurisdictional question that does not involve
a factual dispute is a question of law.
3. Interventions. Whether a party has the right to intervene is a question
of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the conclusions
reached by the trial court.
5. 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.
6. Standing: Parties. The purpose of the standing inquiry is to determine
whether a person has a legally protectable interest or right in the contro-
versy that would benefit by the relief to be granted.
7. Standing: Proof. Persons claiming standing must show that their claim
is premised on their own legal rights and not the rights of another.
8. Parent and Child: Words and Phrases. Persons stand in loco parentis
to a child if they put themselves in the position of lawful parents by
assuming the obligations incident to the parental relationship without
formally adopting the child.
9. Parent and Child. The rights, duties, and liabilities of persons standing
in loco parentis to a child are the same as those of the lawful parents.
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IN RE INTEREST OF ENYCE J. & ETERNITY M.
Cite as 291 Neb. 965
10. Parent and Child: Standing: Appeal and Error. Foster parents,
as such, do not have standing to appeal from an order changing a
child’s placement.
11. Interventions: Juvenile Courts. The rules for intervention in civil
cases provide a guidepost in determining whether a person has the right
to intervene in juvenile proceedings.
12. Interventions. 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.
13. ____. An indirect, remote, or conjectural interest in the result of a suit is
not enough to establish intervention as a matter of right.
14. Interventions: Parties. An intervenor joins the proceedings as a party
to defend his own rights or interests.
15. Parent and Child: Interventions: Juvenile Courts. Foster parents, as
such, do not have an interest that entitles them to intervene in a juvenile
case as a matter of right.
16. Interventions: Jurisdiction: Equity. Independent of the intervention
statutes, a court with equitable jurisdiction may allow intervention as a
matter of equity in a proper case.
17. Juvenile Courts: Jurisdiction: Statutes. A juvenile court is a statuto-
rily created court of limited and special jurisdiction, and it has only the
authority which the statutes confer on it.
18. Juvenile Courts: Interventions: Equity: Statutes. A juvenile court
cannot allow persons to equitably intervene independent of the statutes.
Appeal from the Separate Juvenile Court of Douglas County:
Wadie Thomas, Judge. Affirmed.
Nicholas E. Wurth, of Law Offices of Nicholas E. Wurth,
P.C., for appellant Mark S. and appellee Roberta S.
Donald W. Kleine, Douglas County Attorney, Shakil Malik,
and Jocelyn Brasher, Senior Certified Law Student, for appel-
lee State of Nebraska.
Patrick A. Campagna and Britt H. Dudzinski, of Lustgarten
& Roberts, P.C., L.L.O., for appellee Erica J.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
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IN RE INTEREST OF ENYCE J. & ETERNITY M.
Cite as 291 Neb. 965
Connolly, J.
SUMMARY
The juvenile court determined that it had jurisdiction over
a minor child, Eternity M., because of the faults or hab-
its of her mother, Erica J. The Nebraska Department of
Health and Human Services (Department) placed Eternity
with foster parents Mark S. and Roberta S. The court later
dismissed Mark and Roberta’s complaint to intervene and
ordered the Department to place Eternity with her maternal
aunt in Nevada.
Mark appeals. He argues that the court should have allowed
him and Roberta to intervene and that a change of placement
was not in Eternity’s best interests. Erica argues that we do
not have jurisdiction to review the placement order because
Mark—as a foster parent—does not have standing. We con-
clude that Mark lacks standing to appeal the order changing
Eternity’s placement and that the court did not err by dismiss-
ing Mark and Roberta’s complaint to intervene. We affirm.
BACKGROUND
The Douglas County Sheriff arrested Erica in August 2013
regarding a homicide. Erica had one child, Enyce J., at the
time of her arrest. In September 2013, the State petitioned
to adjudicate Enyce under Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008).
Erica gave birth to a daughter, Eternity, in April 2014.
A Department employee spoke with Erica, who was under
police restraint, at the hospital within 24 hours of the birth.
Erica declined to identify the father but suggested that her
sister, Deseyre M., who lived in Nevada, might be a place-
ment resource.
On April 4, 2014, the State filed a second supplemental
petition alleging that Eternity was within the juvenile court’s
jurisdiction under § 43-247(3)(a) (Supp. 2013). The court gave
the Department temporary custody of Eternity.
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IN RE INTEREST OF ENYCE J. & ETERNITY M.
Cite as 291 Neb. 965
One day later, the Department placed Eternity with Mark
and Roberta. Six days later, the court ordered the Department
to start background checks on several relatives for possible
placement, including Deseyre.
In August 2014, the court held a hearing on the sec-
ond supplemental petition. A family permanency specialist
testified that she contacted Deseyre, gathered information
from her, and requested an investigation under the Interstate
Compact for the Placement of Children (ICPC).1 The special-
ist explained that an ICPC investigation had to be completed
because Deseyre did not live in Nebraska.
Later in August, the court determined that it had jurisdiction
under § 43-247(3)(a). The court continued the Department’s
temporary custody and stated that the permanency objective
was reunification.
In October 2014, Mark and Roberta filed a complaint to
intervene. They alleged that they had been the “sole pri-
mary care takers, physical custodians and foster parents” of
Eternity “since her birth.” As a result, they had bonded with
Eternity and stood in loco parentis to her. Mark and Roberta
claimed that they wanted to intervene to object to any place-
ment change.
About a week later, Erica moved to place Eternity with
Deseyre. Erica was sentenced to 60 to 100 years’ imprisonment
for two felony convictions shortly thereafter. Mark and Roberta
filed an objection to Erica’s placement motion because the
change would not be in Eternity’s best interests.
In November 2014, the court held a hearing on Erica’s
motion to change placement. An attorney appeared for Mark
and Roberta. The county attorney indicated that the ICPC
report was not finished. The Department’s attorney said that
the Department favored placement with Deseyre “pending the
ICPC results.” On November 25, the court stated that it would
1
Neb. Rev. Stat. § 43-1103 (Cum. Supp. 2014).
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IN RE INTEREST OF ENYCE J. & ETERNITY M.
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sustain the placement motion subject to the completion of the
ICPC investigation.
About a week later, the court held a review hearing and a
hearing on Mark and Roberta’s complaint to intervene. Mark
and Roberta’s attorney was again present. The court told him
that “foster parents are entitled to present evidence related to
the issue of their fitness to serve as foster parents” and asked
him if he had any evidence to offer. Mark and Roberta’s
attorney offered exhibit 30, an affidavit of Mark. The court
received Mark’s affidavit and asked the county attorney if the
ICPC investigation was done. The county attorney said that
it was, so the court decided to “combine the hearings.” The
court received several exhibits offered by the State, including
the ICPC report. The court stated that Mark’s affidavit “will
be considered for purposes of all matters set today.” Mark and
Roberta’s attorney did not offer any other evidence.
In Mark’s affidavit, he averred that he was an accountant and
that his wife, Roberta, was an elementary school teacher. Mark
said that Eternity had bonded with him and Roberta. Mark did
not think that removing Eternity from his and Roberta’s home
was in Eternity’s best interests.
The ICPC report approved Deseyre for placement. Deseyre
lives in Las Vegas, Nevada, with her mother. The report
found that Deseyre was financially stable and had “the desire,
resources and ability to provide a safe, nurturing home to
a child.”
On December 4, 2014, the court dismissed Mark and
Roberta’s complaint to intervene. The court stated that it had
received an approved ICPC report for Deseyre and that Deseyre
was Eternity’s maternal aunt. It ordered the Department to
“take immediate steps for placement of the child Eternity pur-
suant to and consistent with this Court’s order today.”
Mark appealed from the November 25 and December 4,
2014, orders.
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IN RE INTEREST OF ENYCE J. & ETERNITY M.
Cite as 291 Neb. 965
ASSIGNMENTS OF ERROR
Mark assigns, restated and renumbered, that the juvenile
court erred by (1) determining that he lacked standing, (2)
dismissing the complaint to intervene as a matter of right, (3)
dismissing the complaint to intervene under equity principles,
and (4) changing Eternity’s placement.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings.2
[2-4] A jurisdictional question that does not involve a factual
dispute is a question of law.3 Whether a party has the right to
intervene is a question of law.4 When reviewing questions of
law, an appellate court resolves the questions independently of
the conclusions reached by the trial court.5
ANALYSIS
Placement
Erica argues that we do not have jurisdiction to review the
change of placement because, among other reasons, Mark
does not have standing to appeal. Before reaching the legal
issues presented for review, we must decide if we have
jurisdiction.6
[5-7] Standing involves a real interest in the cause of
action, meaning some legal or equitable right, title, or inter-
est in the subject matter of the controversy.7 The purpose of
the standing inquiry is to determine whether a person has a
2
In re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015).
3
Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015).
4
Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012).
5
Id.
6
Murray v. Stine, supra note 3.
7
See Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015).
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IN RE INTEREST OF ENYCE J. & ETERNITY M.
Cite as 291 Neb. 965
legally protectable interest or right in the controversy that
would benefit by the relief to be granted.8 Persons claiming
standing must show that their claim is premised on their own
legal rights and not the rights of another.9
So, the standing issue turns on Mark and Roberta’s rights, if
any, and how the placement order affected their rights.10 A par-
ent has a fundamental liberty interest in the care, custody, and
management of the child.11 And the State has an interest in the
placement of a child derived from its role as parens patriae.12
Eternity’s interests are represented by her guardian ad litem.13
But what right or interest in a child’s placement does a foster
parent have?
Nearly 20 years ago, we held that a pair of foster parents
had standing in In re Interest of Jorius G. & Cheralee G.14
There, the children’s mother relinquished her parental rights
to the foster parents and entered into an open adoption with
them. But the Department formed a negative opinion of the
foster parents and sought to change the children’s placement.
The foster parents offered evidence in opposition to the change
of placement, and the juvenile court decided to leave the chil-
dren with them. The State appealed, arguing that the foster
parents did not have standing to object to the proposed place-
ment change.
We concluded that the foster parents did have standing.
Under Neb. Rev. Stat. § 43-285(3) (Reissue 1993), a juvenile
court could review a proposed change of placement “on its
8
Id.
9
See id.
10
See In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
11
In re Interest of Artharena D., 253 Neb. 613, 571 N.W.2d 608 (1997).
12
See In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
13
In re Interest of Jassenia H., 291 Neb. 107, 864 N.W.2d 242 (2015).
14
In re Interest of Jorius G. & Cheralee G., 249 Neb. 892, 546 N.W.2d 796
(1996).
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IN RE INTEREST OF ENYCE J. & ETERNITY M.
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own motion or upon the filing of an objection to the change by
an interested party.” Furthermore, Neb. Rev. Stat. § 43-1314
(Reissue 1993) gave foster parents the right to notice of and
participation in court reviews of a child’s placement.
Furthermore, the foster parents had standing because the
mother had relinquished her parental rights to them. We had
previously held that in a private adoption, the adoptive family
stands on equal ground with a natural mother with respect to
a determination of custody. So the foster parents had standing
as “prospective adoptive parents.”15
Relying on In re Interest of Jorius G. & Cheralee G., the
Nebraska Court of Appeals recently held in In re Interest of
Montana S.16 that a child’s grandmother, who was the foster
parent and successful intervenor, had standing to appeal from
an order changing the child’s placement. The Court of Appeals
emphasized that the State had considered the grandmother for
adoptive placement.
But we believe that In re Interest of Jorius G. & Cheralee
G. and this case are distinguishable for several reasons. First,
the relevant statutes have changed. For example, § 43-1314(2)
(Cum. Supp. 2014) now cautions that notice to the foster parent
of a hearing “shall not be construed to require that such foster
parent . . . is a necessary party to the review or hearing.”
And, after we decided In re Interest of Jorius G. & Cheralee
G., we held that the foster parent’s right of participation
under § 43-1314 is a narrow one.17 The foster parent’s right
to participate does not extend to discovery, questioning, cross-­
examining, or calling witnesses beyond what is personally
applicable to the foster parent’s own qualifications.18 Section
43-1314 gives foster parents a role in the proceeding, but it
15
Id. at 896, 546 N.W.2d at 799.
16
In re Interest of Montana S., 21 Neb. Ct. App. 315, 837 N.W.2d 860 (2013).
17
See In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002).
18
Id.
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IN RE INTEREST OF ENYCE J. & ETERNITY M.
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does not confer on them a right, title, or interest in the subject
matter of the controversy.
Finally, unlike the mother in In re Interest of Jorius G.
& Cheralee G., Erica has emphatically not relinquished her
parental rights to Mark and Roberta. We have said that one
with parental authorization to assume even the temporary care
of a child has standing to appeal the State’s interference with
that parentally created relationship.19 The right of a parent
to authorize another to assume the care of a child is part of
the bundle of fundamental rights which the federal constitu-
tion confers to parents.20 The foster parents in In re Interest
of Jorius G. & Cheralee G. came to court with some of the
mother’s fundamental rights. Erica did not share her bundle of
rights with Mark and Roberta.
[8,9] Mark argues that he and Roberta could neverthe-
less exercise the rights of parents because they stood in loco
parentis to Eternity. Persons stand in loco parentis to a child
if they put themselves in the position of lawful parents by
assuming the obligations incident to the parental relationship
without formally adopting the child.21 And the rights, duties,
and liabilities of such persons are the same as those of the
lawful parents.22
But Mark and Roberta did not stand in loco parentis to
Eternity. Foster care is generally a short-term placement: It is
a temporary measure for maintaining the child until the court
can make a permanent disposition.23 In fact, Mark averred that
he knew of the request to place Eternity with Deseyre because
the family permanency specialist “informed us early on that a
potential relative existed.”
19
In re Interest of Artharena D., supra note 11.
20
See id.
21
Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (2011).
22
Id.
23
In re Interest of Hastings, 211 Neb. 209, 318 N.W.2d 80 (1982).
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IN RE INTEREST OF ENYCE J. & ETERNITY M.
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Furthermore, the Department’s regulations limit a foster
parent’s role to something that is decidedly less than that of a
lawful parent. For example, the caseworker, the parents, and
the court decide if a ward who is at least 17 years of age can
marry.24 Foster parents do not have a say.25 The caseworker,
with the involvement of the parents, is responsible for making
decisions about the child’s medical treatment.26 Foster parents
can obtain emergency or routine medical treatment for the
child only with the caseworker’s consent.27 Foster parents can-
not require the child to practice their religious faith.28 The child
can change his religious faith to that of the foster parents only
if the child’s parents approve or, if the court has terminated
parental rights, the caseworker believes that the religious con-
version is in the child’s best interests.29 Foster parents cannot
discipline a ward with “[p]hysical punishment of any kind”30
or let the child be included on a hunting trip without the case-
worker’s approval.31 And they absolutely cannot give the child
a “BB gun.”32
[10] In conclusion, Mark and Roberta—as foster parents—
do not have a legal or equitable right, title, or interest in the
subject matter of the controversy that gives them standing
to appeal from the order changing Eternity’s placement. So,
we do not have jurisdiction to review the placement change.
Foster parents have a statutory right to participate in review
hearings, but this does not give them an interest in the child’s
24
390 Neb. Admin. Code, ch. 11, § 002.01N (1998).
25
See id.
26
390 Neb. Admin. Code, ch. 11, § 002.04F (2000).
27
Id.
28
390 Neb. Admin. Code, ch. 11, § 002.01S (1998).
29
Id.
30
390 Neb. Admin. Code, ch. 11, § 002.01E (1998).
31
390 Neb. Admin. Code, ch. 11, § 002.01H (1998).
32
Id.
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placement akin to the interest of a parent or the State. We
disapprove of In re Interest of Jorius G. & Cheralee G.33 and
In re Interest of Montana S.34 to the extent that they are incon­
sistent with this opinion.
Intervention
Although Mark does not have standing to appeal the order
changing Eternity’s placement, we do have jurisdiction over
the order dismissing the complaint to intervene.35 We note
that the record betrays some confusion about the relationship
between Mark and Roberta’s statutory right to participate as
foster parents and their complaint to intervene. Foster parents
have a right to participate in review hearings under § 43-1314,
and they may so participate whether or not they are parties.36
But their ability to participate under the statute is less than
that of a party. Particularly, the statutory right does not go
beyond adducing evidence of the foster parent’s own qualifi-
cations.37 Mark and Roberta sought to intervene in the case,
and if successful, they would have become parties and been
able to participate beyond the narrow limits of § 43-1314.
Mark argues that the juvenile court erred by not letting him
and Roberta do so.
[11-14] The rules for intervention in civil cases provide a
guidepost in determining whether a person has the right to
intervene in juvenile proceedings.38 As a prerequisite to inter-
vention, the intervenor must have a direct and legal interest
of such character that the intervenor will lose or gain by
33
In re Interest of Jorius G. & Cheralee G., supra note 14.
34
In re Interest of Montana S., supra note 16.
35
See Basin Elec. Power Co-op v. Little Blue N.R.D., 219 Neb. 372, 363
N.W.2d 500 (1985).
36
See In re Interest of Destiny S., supra note 17.
37
See id.
38
See id.
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the direct operation and legal effect of the judgment which
the court may render in the action.39 An indirect, remote, or
conjectural interest in the result of a suit is not enough to
establish intervention as a matter of right.40 An intervenor
joins the proceedings as a party to defend his own rights
or interests.41
[15] We held that foster parents are not entitled to intervene
as a matter of right in In re Interest of Destiny S.42 We are not
inclined to overrule that decision, and as we understand from
oral argument, Mark is not asking us to do so. As discussed,
Mark and Roberta did not have a right, title, or interest in the
subject matter of the controversy that gave them standing.
Similarly, they did not have an interest that entitled them to
intervene in the juvenile case as a matter of right.
[16] Nevertheless, Mark argues that the juvenile court
should have let him and Roberta intervene as a matter of
equity. Independent of the intervention statutes, a court with
equitable jurisdiction may allow persons to intervene as a
matter of equity in a proper case.43 We review for an abuse
of discretion a court’s decision to allow or disallow equitable
intervention.44
[17,18] But a juvenile court is a statutorily created court
of limited and special jurisdiction.45 It has only the authority
39
State ex rel. Lanman v. Board of Cty. Commissioners, 277 Neb. 492, 763
N.W.2d 392 (2009).
40
Spear T Ranch v. Knaub, 271 Neb. 578, 713 N.W.2d 489 (2006).
41
See In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
42
In re Interest of Destiny S., supra note 17.
43
See, Jeffrey B. v. Amy L., supra note 4; Colman v. Colman Foundation,
Inc., 199 Neb. 263, 258 N.W.2d 128 (1977); State ex rel. City of Grand
Island v. Tillman, 174 Neb. 23, 115 N.W.2d 796 (1962); 59 Am. Jur. 2d
Parties § 148 (2012).
44
Colman v. Colman Foundation, Inc., supra note 43.
45
In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011).
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which the statutes confer on it.46 So, the juvenile court could
not allow Mark and Roberta to equitably intervene indepen-
dent of the statutes. We recognize that we discussed equitable
intervention in the context of a juvenile court in In re Interest
of Destiny S.47 To the extent that In re Interest of Destiny S.
suggests that juvenile courts may allow persons to equitably
intervene, we disapprove of it.
CONCLUSION
We do not have jurisdiction to review the order changing
Eternity’s placement because Mark and Roberta, as foster par-
ents, lack standing. We also conclude that Mark and Roberta
were not entitled to intervene as of right and that the juvenile
court lacked the power to allow them to equitably intervene.
A ffirmed.
46
Id.
47
In re Interest of Destiny S., supra note 17.