In re Interest of Sarah H. ( 2013 )

Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SARAH H. 441
Cite as 21 Neb. App. 441VI. CONCLUSION
The trial court did not err in removing Theodore from his
positions as the personal representative and as the trustee,
because his actions reveal that his interests irreconcilably con-
flicted with the interests of the estate and the Trust. Accordingly,
the decision of the trial court is affirmed.
Affirmed.
In re I nterest of Sarah H., a child under 18 years of age.
State of Nebraska, appellee, v. Alicia F., appellant,
and Brian H., intervenor-appellee.
___ N.W.2d ___
Filed October 22, 2013. No. A-12-1197.
1. Juvenile Courts: Judgments: Appeal and Error. Cases arising under the
Nebraska Juvenile Code, Neb. Rev. Stat. §§ 43-245 through 43-2,129 (Reissue
2008 & Cum. Supp. 2012), are reviewed de novo on the record, and an appellate
court is required to reach a conclusion independent of the trial court’s findings.
However, when the evidence is in conflict, the appellate court will consider and
give weight to the fact that the lower court observed the witnesses and accepted
one version of the facts over the other.
2. Juvenile Courts: Appeal and Error. In reviewing questions of law arising under
the Nebraska Juvenile Code, an appellate court reaches conclusions independent
of the lower court’s rulings.
3. Juvenile Courts: Jurisdiction: Words and Phrases. The Nebraska Juvenile
Code defines “parties” as the juvenile over which the juvenile court has jurisdic-
tion under Neb. Rev. Stat. § 43-247 (Reissue 2008) and his or her parent, guard-
ian, or custodian.
4. Interventions: Pleadings. 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 demand-
ing anything adversely to both the plaintiff and defendant, either before or after
issue has been joined in the action, and before the trial commences.
5. Interventions. Neb. Rev. Stat. § 25-328 (Reissue 2008) provides a right to inter-
vene before trial has commenced.
6. Interventions: Time. A right to intervene should be asserted within a reasonable
time, and the applicant must be diligent and not guilty of unreasonable delay after
knowledge of the suit.
Decisions of the Nebraska Court of Appeals
442 21 NEBRASKA APPELLATE REPORTS
7. Judgments: Interventions: Trial: Time. An intervenor may not unreasonably
delay the original parties, unduly retard the trial of the case, or render nugatory
a judgment without a compelling cause, and persons who otherwise would be
granted leave to intervene are denied consideration where they sit by and allow
litigation to proceed without timely requesting leave to enter the case.
8. Interventions. The language of Neb. Rev. Stat. § 25-328 (Reissue 2008) does not
absolutely bar an otherwise entitled applicant from seeking to intervene after trial
has commenced.
9. Interventions: Juvenile Courts. Intervention may be proper after the adjudica-
tion in a juvenile proceeding.
10. Paternity: Presumptions. In Nebraska, a child born during wedlock is presumed
to be the legitimate offspring of the married parties.
11. Paternity: Presumptions: Proof. The presumption of legitimacy is not an irre-
buttable presumption, and it may be rebutted by clear, satisfactory, and convinc-
ing evidence.
12. ____: ____: ____. Blood tests may be used to rebut the presumption that the
husband is the biological father of children born during wedlock.
13. Divorce: Paternity: Child Support: Res Judicata. When a dissolution decree
includes an order of child support, the issue of paternity is considered adjudicated
and the issue of paternity cannot be relitigated between the parties because of the
doctrine of res judicata, absent certain limited circumstances.
14. Paternity: Child Support. Neb. Rev. Stat. § 43-1412.01 (Reissue 2008) provides
a means to set aside an otherwise final legal determination of paternity, including
an obligation to pay child support.
15. Paternity: Evidence: Res Judicata. Neb. Rev. Stat. § 43-1412.01 (Reissue
2008) overrides res judicata principles and allows, in limited circumstances, an
adjudicated father to disestablish a prior, final paternity determination based on
genetic evidence that the adjudicated father is not the biological father.
16. Parent and Child. In the absence of a biological or adoptive relationship
between a husband and his wife’s child, certain rights and responsibilities may
arise where a husband elects to stand in loco parentis to his wife’s child.
17. Parent and Child: Intent: Proof: Words and Phrases. 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 relation-
ship, 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. The assumption of the relation is a question of intention, which
may be shown by the acts and declarations of the person alleged to stand in
that relation.
18. Parent and Child. It is a husband’s desire to remain in an in loco parentis
relationship with his wife’s child that gives rise to the rights and corresponding
responsibilities usually reserved for natural or adoptive parents.
19. ____. Termination of the in loco parentis relationship also terminates the corre-
sponding rights and responsibilities afforded thereby.
Appeal from the Separate Juvenile Court of Lancaster
County: Linda S. Porter, Judge. Affirmed.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SARAH H. 443
Cite as 21 Neb. App. 441Joseph E. Dalton, of Dalton Law Office, P.C., L.L.O., for
appellant.
Michael A. Greenlee, of Law Office of Michael Greenlee,
for intervenor-appellee.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
Irwin, Judge.
I. INTRODUCTION
Alicia F. appeals an order of the separate juvenile court
of Lancaster County, Nebraska, in which the juvenile court
granted a petition to intervene filed by Brian H. and ordered
placement of a juvenile, Sarah H., with Brian. We find no merit
to Alicia’s assertions on appeal, and we affirm.
II. BACKGROUND
Alicia and Brian began dating in September 1994 and were
married in June 1995. Sarah was born in July 1995, and Brian
was listed as Sarah’s father on her birth certificate. Alicia and
Brian were divorced in 1997.
Brian was ordered to pay child support to Alicia, and he was
granted visitation rights with Sarah. The record suggests that
Alicia and Brian had disagreements concerning visitation on
more than one occasion, and the two participated in mediation
on at least two occasions.
Sometime during mediation in 2004 or 2005, Alicia revealed
that Brian was not Sarah’s biological father. It appears that
Brian continued to be obligated to pay child support and con-
tinued to enjoy visitation rights. During a second mediation,
in 2009, Alicia again raised the issue of paternity, and Brian
agreed to participate in voluntary genetic testing. The voluntary
genetic testing revealed a 0-percent possibility that Brian was
Sarah’s biological father. At that point in time, Sarah was 14
years of age.
The record presented to us is conflicting concerning Brian’s
potential knowledge that he was not Sarah’s biological father.
The Department of Health and Human Services (DHHS) report
filed in this case indicates that Alicia had been in a “bad
Decisions of the Nebraska Court of Appeals
444 21 NEBRASKA APPELLATE REPORTS
relationship” prior to her dating Brian, that she had told Brian
she had been raped, that Brian “could tell that Alicia was
pregnant from the beginning,” and that “he always knew”
she was pregnant. The DHHS report, however, also indicates
that Brian told the caseworker that he had “always [been]
under the impression that Sarah was his daughter.” Brian
also testified that Alicia had always held out that Brian was
Sarah’s biological father until she first raised the issue in
September 2010, approximately 13 years after the parties’ mar-
riage was dissolved.
In January 2011, the district court that had jurisdiction over
Alicia and Brian’s marital dissolution entered a temporary
order suspending Brian’s child support obligation and parent-
ing time with Sarah. The temporary order was specifically
captioned as “temporary” and was entered pending a sched-
uled trial to be held later in January. The record presented to
us does not indicate that any further action ever occurred in
the district court, and there is no evidence to indicate that any
parental rights Brian may have possessed were ever formally
terminated or relinquished.
Brian testified that after the temporary order was entered,
he did not have “any physical contact” with Sarah until July
2012, but that he did continue to maintain verbal contact
with her.
In July 2012, the State filed a petition in the juvenile court,
alleging that Sarah and three other juveniles were within the
jurisdiction of the court because of the fault or habits of Alicia
and her husband, Frederick F. The State alleged that Frederick
had engaged in sexual touching of Sarah and that all four
juveniles were in danger. The State also filed a motion for
emergency custody, alleging that all four juveniles were seri-
ously endangered. The court entered an ex parte order granting
temporary custody of all four children to DHHS. At that point
in time, Sarah was 17 years of age.
The record presented to us on appeal includes two different
placement orders, both file stamped on the same date, which
appear to conflict concerning placement of the four juveniles.
One order, dated 4 days before the other, suggests that the other
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SARAH H. 445
Cite as 21 Neb. App. 441three juveniles were being placed with Alicia and Frederick;
the other order, however, suggests that all four juveniles were
to be placed in out-of-home placements. In any event, DHHS
placed Sarah in Brian’s home.
The State filed an amended petition concerning Sarah, in
which the State amended its assertions to indicate that Sarah
was within the jurisdiction of the juvenile court through no
fault of Alicia and Frederick. In the amended petition, the State
indicated that the allegations that Frederick had engaged in
sexual touching could not be proven.
In September 2012, an adjudication hearing was held and
Alicia and Frederick entered no contest pleas to the assertion
that Sarah was within the jurisdiction of the juvenile court. The
adjudication order entered by the juvenile court indicates that
Brian appeared at the adjudication hearing. The adjudication
order indicated that a disposition hearing would be held on
November 6.
On November 1, 2012, Brian filed a petition to intervene
in the juvenile court proceedings. Brian alleged that he was
Sarah’s father, that his name appeared on her birth cer-
tificate, that she was born during Brian’s marriage to Alicia,
that he had a fundamental interest in the care and raising of
Sarah, and that there had been no allegations made concern-
ing himself.
The juvenile court conducted a hearing at which it con-
sidered both Brian’s petition to intervene and the appropriate
placement and disposition for Sarah. Concerning the peti-
tion to intervene, Brian testified that Sarah was born during
Brian’s marriage to Alicia, that his name appears on Sarah’s
birth certificate, that he parented Sarah and had a lasting rela-
tionship with her, and that Sarah was, at that time, placed in
his home. He acknowledged that the voluntary genetic testing
had demonstrated he was not Sarah’s biological father and
that a temporary order had been entered by the district court
temporarily suspending his obligation to pay support and his
rights to visitation, but he also testified that he had maintained
verbal contact with Sarah since that temporary order was
entered. The court sustained the petition to intervene, finding
Decisions of the Nebraska Court of Appeals
446 21 NEBRASKA APPELLATE REPORTS
that Brian had acted in the role of father to Sarah for a signifi-
cant part of her life.
Concerning the appropriate placement and disposition for
Sarah, the State presented evidence which included a report
and live testimony from a DHHS caseworker and a report from
a guardian ad litem. The caseworker testified that the State
was not spending any money on Sarah’s placement with Brian
and that Brian, his mother, and Sarah herself paid for Sarah’s
needs. The caseworker testified that Sarah was enrolled in
college and was working full time. The caseworker testified
that Sarah wanted to remain placed with Brian or to live on
her own and that Sarah did not want visitation with Alicia.
The State’s recommendation was that Sarah remain placed
with Brian.
Alicia testified that she did not agree with the recommenda-
tion for Sarah to remain placed with Brian. Alicia alleged that
the placement was not safe and that Brian had been abusive
and was unable to support himself. She expressed concern that
Sarah had obtained a vehicle since being placed with Brian and
that Sarah had gone to a doctor for “things that she’s never
been sick with before.” Alicia testified that she would prefer
Sarah be placed with a relative in the State of Georgia or be
placed in an apartment on her own, rather than remaining
placed with Brian.
At the conclusion of the hearing, the juvenile court noted
that there were “a lot of holes” in the evidence concerning
what was going on with Sarah and concluded that she should
continue to be placed with Brian. The court ultimately entered
a disposition order, in which the court indicated that Brian
was being allowed to intervene, indicated that Sarah’s place-
ment would remain with Brian, and set forth other disposition
findings concerning therapy and services for Sarah that are not
relevant to the appeal. Alicia appeals from that order.
III. ASSIGNMENTS OF ERROR
On appeal, Alicia has assigned two errors. First, she asserts
that the juvenile court erred in allowing Brian to intervene.
Second, she asserts that the court erred in continuing Sarah’s
placement with Brian.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SARAH H. 447
Cite as 21 Neb. App. 441IV. ANALYSIS
1. Standard of R eview
[1,2] Cases arising under the Nebraska Juvenile Code, Neb.
Rev. Stat. §§ 43-245 through 43-2,129 (Reissue 2008 & Cum.
Supp. 2012), are reviewed de novo on the record, and an appel-
late court is required to reach a conclusion independent of the
trial court’s findings. However, when the evidence is in con-
flict, the appellate court will consider and give weight to the
fact that the lower court observed the witnesses and accepted
one version of the facts over the other. In re Interest of Justine
J. et al., 286 Neb. 250, 835 N.W.2d 674 (2013). In reviewing
questions of law arising under the Nebraska Juvenile Code, an
appellate court reaches conclusions independent of the lower
court’s rulings. In re Interest of Candice H., 284 Neb. 935, 824
N.W.2d 34 (2012).
2. P etition to Intervene
Alicia first assigns error to the juvenile court’s granting of
Brian’s petition to intervene. She challenges both the timeli-
ness of Brian’s petition to intervene and the sufficiency of his
legal interest in the proceedings to warrant granting interven-
tion. We find that the petition was not untimely and that the
juvenile court did not err in concluding that Brian had a suf-
ficient interest to grant intervention.
[3] The Nebraska Juvenile Code defines “parties” as
the juvenile over which the juvenile court has jurisdiction
under § 43-247 and his or her parent, guardian, or custodian.
§ 43-245(12). The language of the statute, however, is not
exclusive; it merely identifies necessary parties to a juvenile
proceeding. In re Interest of Kayle C. & Kylee C., 253 Neb.
685, 574 N.W.2d 473 (1998).
[4] The question of whether Brian has a right to intervene
in this action is governed by Neb. Rev. Stat. § 25-328 (Reissue
2008), which provides:
Any person who has or claims an interest in the mat-
ter 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
Decisions of the Nebraska Court of Appeals
448 21 NEBRASKA APPELLATE REPORTS
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 issue has been joined in
the action, and before the trial commences.
(a) Timeliness of Petition
to Intervene
Alicia first asserts that this statutory language renders
Brian’s petition to intervene untimely and that, as a result,
it should be barred. She argues that the statutory language
indicates the right to intervene must be exercised “before
the trial commences” and that because Brian did not file his
petition to intervene until after the adjudication hearing and
adjudication order, it was untimely. Brief for appellant at 8.
We disagree.
[5-7] In civil proceedings, the Nebraska Supreme Court
has long recognized that § 25-328 provides a right to inter-
vene before trial has commenced. See, Pribil v. French, 179
Neb. 602, 139 N.W.2d 356 (1966) (right to intervene may be
exercised any time before trial commences); Lincoln Bonding
& Ins. Co. v. Barrett, 179 Neb. 367, 138 N.W.2d 462 (1965)
(petition in intervention may be filed as matter of right before
trial). The court has noted that a right to intervene should be
asserted within a reasonable time and that the applicant must
be diligent and not guilty of unreasonable delay after knowl-
edge of the suit. Lincoln Bonding & Ins. Co. v. Barrett, supra.An intervenor may not unreasonably delay the original parties,
unduly retard the trial of the case, or render nugatory a judg-
ment without a compelling cause, and persons who otherwise
would be granted leave to intervene are denied consideration
where they sit by and allow litigation to proceed without timely
requesting leave to enter the case. Id.[8,9] Nonetheless, the Nebraska Supreme Court has also
long recognized that the language of § 25-328 does not abso-
lutely bar an otherwise entitled applicant from seeking to
intervene after trial has commenced. See, State ex rel. City of
Grand Island v. Tillman, 174 Neb. 23, 115 N.W.2d 796 (1962)
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SARAH H. 449
Cite as 21 Neb. App. 441(intervention under statute is matter of right but does not pre-
vent court of equity from allowing intervention after trial has
begun); County of Nance v. Thomas, 146 Neb. 640, 20 N.W.2d
925 (1945) (party intervened in tax foreclosure proceeding
after judgment of foreclosure but prior to confirmation of
judicial sale); Conkey v. Knudsen, 143 Neb. 5, 8 N.W.2d 538(1943) (trial court has discretion to allow intervention after
commencement of trial). Most pertinent to the present proceed-
ing, however, is that the Nebraska Supreme Court has recog-
nized that intervention may be proper after the adjudication in
a juvenile proceeding. See In re Interest of Kayle C. & Kylee
C., 253 Neb. 685, 574 N.W.2d 473 (1998).
In In re Interest of Kayle C. & Kylee C., supra, a petition
was filed in the juvenile court in November 1994 concerning
two sisters. The juvenile court adjudicated that it had jurisdic-
tion over the sisters in December, and held disposition hearings
and entered disposition orders throughout 1995 and 1996. In
November 1996, nearly 2 years after adjudication and after a
number of other disposition hearings and orders, the sisters’
grandparents filed a motion for leave to intervene in the pro-
ceedings. The juvenile court denied the motion.
On appeal, the Nebraska Supreme Court discussed at length
the legal sufficiency of the grandparents’ interest in the liti-
gation to support a claim of intervention. After finding the
legal interest sufficient, the court specifically held that “under
Nebraska law, grandparents have a sufficient legal interest in
dependency proceedings involving their biological or adopted
minor grandchildren to entitle them to intervene in such pro-
ceedings prior to final disposition.” Id. at 691, 574 N.W.2d
at 477 (emphasis supplied). The Supreme Court reversed the
juvenile court’s denial of the motion to intervene which was
filed nearly 2 years after adjudication.
In the present case, Brian did not unreasonably delay the
proceedings and did not sit by and allow litigation to proceed
without timely seeking to intervene. Adjudication occurred in
October 2012, and Brian filed his petition to intervene less
than 1 month later, prior to the first disposition and place-
ment hearing. He acted diligently and asserted his rights in
Decisions of the Nebraska Court of Appeals
450 21 NEBRASKA APPELLATE REPORTS
a timely fashion. The juvenile court did not err in rejecting
Alicia’s assertion that the petition to intervene should be barred
as untimely.
(b) Sufficiency of Legal Interest
for Intervention
Alicia next asserts that the juvenile court erred in granting
Brian’s petition to intervene because he is not Sarah’s biologi-
cal father, is not Sarah’s stepfather, and did not enjoy a rela-
tionship in loco parentis to Sarah. We do not find error in the
juvenile court’s conclusion that Brian possessed a sufficient
legal interest to intervene.
[10-12] In Nebraska, a child born during wedlock is pre-
sumed to be the legitimate offspring of the married parties.
Quintela v. Quintela, 4 Neb. App. 396, 544 N.W.2d 111 (1996).
The presumption of legitimacy is not an irrebuttable presump-
tion, however, and it may be rebutted by clear, satisfactory, and
convincing evidence. Id. Blood tests may be used to rebut the
presumption that the husband is the biological father of chil-
dren born during wedlock. Id.[13] The Nebraska Supreme Court has held that when a
dissolution decree includes an order of child support, the issue
of paternity is considered adjudicated and the issue of pater-
nity cannot be relitigated between the parties because of the
doctrine of res judicata, absent certain limited circumstances.
Devaux v. Devaux, 245 Neb. 611, 514 N.W.2d 640 (1994)
(superseded by statute on other grounds as stated in Alisha
C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012)).
The court noted as a matter of policy that there is no more
forceful example of the rationale underlying the doctrine of
finality of judgments than the potential chaos and humiliation
that would follow from allowing persons to challenge, long
after a final judgment, the legitimacy of children born dur-
ing their marriages. Alisha C. v. Jeremy C., supra; Devaux v.
Devaux, supra.
[14,15] Subsequent to the court’s decision in Devaux v.
Devaux, supra, the Legislature passed 2008 Neb. Laws,
L.B. 1014, and Neb. Rev. Stat. § 43-1412.01 (Reissue 2008),
derived from that bill, provides a means to set aside an
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SARAH H. 451
Cite as 21 Neb. App. 441otherwise final legal determination of paternity, including an
obligation to pay child support. Alisha C. v. Jeremy C., supra.
The Nebraska Supreme Court has concluded that § 43-1412.01
clearly overrides res judicata principles and allows, in limited
circumstances, an adjudicated father to disestablish a prior,
final paternity determination based on genetic evidence that
the adjudicated father is not the biological father. Alisha C. v.
Jeremy C., supra.
In the present case, Sarah was born during Brian’s mar-
riage to Alicia. As such, Sarah was initially presumed to be
the legitimate offspring of Brian and Alicia. When Brian and
Alicia were divorced, Brian was ordered to pay child sup-
port and was granted parenting time with Sarah. The issue of
paternity was first raised, by Alicia, more than 13 years later.
A blood test demonstrated that Brian is not the biological
father, but the record before us does not demonstrate that his
parental rights or responsibilities were ever finally terminated
or relinquished; although a temporary order suspending support
and parenting time was entered in the district court, the record
before us does not indicate that a further hearing or final order
was ever entered. On the record presented to us, it is not clear
whether Brian’s paternity was disestablished, consistent with
§ 43-1412.01 or Alisha C. v. Jeremy C., supra.
The juvenile court, in sustaining the motion to intervene,
indicated that it believed there had been a clear showing that
Brian possessed an interest as a legal parent “under the doctrine
of parens patriae.” The court found that Brian had acted “in the
role of a parent for at least a significant part of [Sarah’s] life.”
[16,17] In the absence of a biological or adoptive relation-
ship between a husband and his wife’s child, Nebraska appel-
late courts have recognized that certain rights and responsibili-
ties may arise where a husband elects to stand in loco parentis
to his wife’s child. Quintela v. Quintela, 4 Neb. App. 396,
544 N.W.2d 111 (1996). A person standing in loco parentis
to a child is one who has put himself or herself in the situa-
tion of a lawful parent by assuming the obligations incident to
the parental relationship, without going through the formali-
ties necessary to a legal adoption, and the rights, duties, and
liabilities of such person are the same as those of the lawful
Decisions of the Nebraska Court of Appeals
452 21 NEBRASKA APPELLATE REPORTS
parent. In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d
400 (2002); Hickenbottom v. Hickenbottom, 239 Neb. 579, 477
N.W.2d 8 (1991); Quintela v. Quintela, supra. The assumption
of the relation 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, supra; Quintela v.
Quintela, supra.[18,19] It is a husband’s desire to remain in an in loco
parentis relationship with his wife’s child that gives rise to the
rights and corresponding responsibilities usually reserved for
natural or adoptive parents. In re Interest of Destiny S., supra;
Quintela v. Quintela, supra. See Cavanaugh v. deBaudiniere,
1 Neb. App. 204, 493 N.W.2d 197 (1992) (case remanded for
determination of ex-husband’s desire to continue in loco paren-
tis relationship with ex-stepchild). As a corollary, termination
of the in loco parentis relationship also terminates the corre-
sponding rights and responsibilities afforded thereby. Quintela
v. Quintela, supra. See, e.g., Cavanaugh v. ­eBaudiniere,
d
supra; Jackson v. Jackson, 278 A.2d 114 (D.C. 1971) (trial
court erred in ordering support when husband demonstrated
intent to end in loco parentis relationship).
When Sarah was born, Brian and Alicia were married.
Brian’s name appears on Sarah’s birth certificate. Brian and
Alicia remained married until Sarah was approximately 2 years
of age, and at the time of dissolution of the marriage, Brian
was ordered to pay child support and granted parenting time.
No issue of paternity was raised for approximately 13 years,
until Alicia raised the issue in the course of mediation con-
cerning Brian’s parenting time. Then a temporary order was
entered by the district court suspending support and parenting
time, but the record before us does not indicate any final reso-
lution of those matters and does not reveal that Brian took any
steps to relinquish or have his parental rights terminated or to
evince an intent to cease acting as Sarah’s legal parent. The
record does not establish that his paternity was disestablished.
See, § 43-1412.01; Alisha C. v. Jeremy C., 283 Neb. 340, 808
N.W.2d 875 (2012).
From the time the temporary order was entered in January
2011 until DHHS placed Sarah with Brian in July 2012, Brian
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SARAH H. 453
Cite as 21 Neb. App. 441did not have physical contact with Sarah. He testified, however,
that he did maintain verbal contact and that he maintained a
lasting relationship with her. From July 2012 through the time
of the hearing on Brian’s petition to intervene in November,
Sarah was in Brian’s home and care.
In In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d
400 (2002), the Nebraska Supreme Court noted that once the
person alleged to be in loco parentis no longer discharges all
duties incident to the parental relationship, the person is no
longer in loco parentis. Termination of the in loco parentis rela-
tionship also terminates the corresponding rights and responsi-
bilities afforded thereby. Id.In In re Interest of Destiny S., supra, the juvenile’s biologi-
cal maternal great-grandmother sought to intervene in juvenile
proceedings in 2001. The juvenile’s biological parents had
relinquished their parental rights in 1998, and the juvenile
had been adopted by another couple. In 2000, the State filed a
petition alleging physical abuse of the juvenile by the adoptive
father, and the adoptive parents subsequently also relinquished
their parental rights. While DHHS explored potential adoptive
placements for the juvenile, the juvenile was placed in her
great-grandmother’s care on a short-term basis pending future
resolution of placement issues. The Nebraska Supreme Court
determined that this placement did not give rise to in loco
parentis status, emphasizing that it was clear the placement was
intended to be a short-term foster placement pending profes-
sional evaluation of prospective adoptive parents and that the
court had clearly informed the great-grandmother on the record
of such. Id.
In the present case, Brian undoubtedly enjoyed in loco
parentis status for the first 15 years of Sarah’s life. She was
born while Brian was married to Alicia, his name appears on
her birth certificate, and it does not appear that any issue con-
cerning paternity was raised until approximately 13 years after
Brian and Alicia’s divorce. The record indicates that Brian
represented to the caseworker in this case that Alicia had rep-
resented that he was the biological father until she raised the
issue in 2010. The parties’ dissolution decree obligated him
to pay child support and granted him parenting time, and the
Decisions of the Nebraska Court of Appeals
454 21 NEBRASKA APPELLATE REPORTS
record does not reflect that he has ever demonstrated any intent
or desire to cease acting as a parent.
In July 2012, when she was 17 years of age, Sarah was
placed in Brian’s care by DHHS. She was in his care through
the time of the hearing on Brian’s petition to intervene in
November. The evidence adduced at the hearing indicated that
the State was not providing any financial assistance to Brian
for any of Sarah’s needs during that time. Instead, Brian, his
mother, and Sarah herself were providing all necessary finan-
cial support. Unlike the factual situation in In re Interest of
Destiny S., supra, the State in the present case was recom-
mending that Sarah continue to be placed with Brian; the
guardian ad litem concurred with this recommendation, and
the record indicates that Sarah—who was 17 years of age at
the time, and is 18 years of age now—desired to continue in
the placement with Brian.
On the narrow facts of this case, where Sarah was born
during Brian’s marriage to Alicia, Brian was held out to be
her biological father for the first 15 years of her life, and
DHHS had placed Sarah with Brian for several months prior
to the intervention hearing and was recommending continued
placement with Brian for the foreseeable future, we do not
find reversible error in the juvenile court’s determination that
Brian possessed a sufficient interest to be entitled to inter-
vene in the proceedings. We find this assignment of error to
lack merit.
3. P lacement
Alicia next asserts that the juvenile court erred in placing
Sarah with Brian. We disagree.
Alicia relies on Neb. Rev. Stat. § 71-1902 (Cum. Supp.
2012), which provides that “no person shall furnish or offer to
furnish foster care for one or more children not related to such
person by blood, marriage, or adoption without having in full
force and effect a written license” to provide foster care. She
asserts that Brian is not related to Sarah by blood, marriage,
or adoption and that he does not possess a license to provide
foster care.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF SARAH H. 455
Cite as 21 Neb. App. 441The present case, however, does not present a typical foster
care situation. As discussed above, Brian was Sarah’s legal
father for at least the first 15 years of her life as a result of
Sarah’s being born during the marriage and the issue of pater-
nity never being raised by anyone. He has also stood in loco
parentis to Sarah for the vast majority of her life. The place-
ment with Brian, under the facts of this case, was not a foster
care placement as contemplated by § 71-1902.
The evidence adduced in this case supported a determina-
tion by the juvenile court that Brian’s home was an appropri-
ate placement for Sarah. At the time of the hearing on place-
ment, Sarah was 17 years of age, was enrolled in college full
time, and was also employed full time. The State determined
that Brian’s home was a safe placement, and Sarah was doing
well in it.
We find no merit to Alicia’s assertion that “it is a scary
proposition to allow ex husbands/wives who were stepparents
to be allowed to care for a child who is not theirs and make
the day to day decisions for that minor child.” Brief for appel-
lant at 14. Brian is not simply an ex-husband who was a step-
parent and is caring for a child who is not his. He was and
acted as the legal parent for at least 15 years and has stood in
loco parentis.
The State recommended continuing placement with Brian.
The guardian ad litem concurred with this recommendation.
Alicia testified that her preference would be for Sarah to be
placed with a relative in the State of Georgia or to be placed
in an independent living situation in an apartment of her own.
Based on the record presented to us, we do not find any revers-
ible error in the juvenile court’s determination that continuing
Sarah’s placement with Brian is in her best interests. We find
no merit to Alicia’s assertions to the contrary.
V. CONCLUSION
We find no reversible error concerning the juvenile court’s
granting of Brian’s petition to intervene or the court’s place-
ment of Sarah with Brian. We affirm.
Affirmed.