In re Interest of Artamis G.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/23/2019 01:05 AM CDT
- 135 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE INTEREST OF ARTAMIS G. ET AL.
Cite as 27 Neb. Ct. App. 135
In re I nterest of
A rtamis G. et al.,
18 years of age.
children under
State of Nebraska, appellee, v. K rysta G.,
appellee, and Auburne G., appellant.
___ N.W.2d ___
Filed April 16, 2019. No. A-18-743.
1. Interventions. Whether a party has the right to intervene in a proceed-
ing is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusions reached by the trial court.
3. Interventions. As a prerequisite to intervention under Neb. Rev. Stat.
§ 25-328 (Reissue 2016), 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 may be rendered
by the action.
4. ____. An indirect, remote, or conjectural interest in the result of a suit is
not enough to establish intervention as a matter of right.
5. Interventions: Final Orders. The denial of a motion to intervene is a
final, appealable order.
6. Parental Rights: Interventions. Grandparents have a sufficient legal
interest in dependency proceedings involving their biological or adopted
minor grandchildren to entitle them to intervene in such proceedings
prior to final disposition.
7. Statutes: Presumptions: States. Where the applicable law of a sister
state is not presented to a Nebraska court, it is presumed to be the same
as the law of Nebraska.
Appeal from the Separate Juvenile Court of Douglas County:
Douglas F. Johnson, Judge. Affirmed.
- 136 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE INTEREST OF ARTAMIS G. ET AL.
Cite as 27 Neb. Ct. App. 135
Andrea Finegan McChesney, of McChesney & Farrell Law
Offices, for appellant.
No appearance for appellee.
Anne E. Troia, P.C., L.L.O., guardian ad litem.
R iedmann, Bishop, and Welch, Judges.
R iedmann, Judge.
INTRODUCTION
Auburne G. asserts that she is the grandmother of Krysta
G.’s six children. She appeals the order of the separate juvenile
court of Douglas County denying her complaint to intervene
in proceedings to adjudicate Krysta’s children. For the reasons
set out below, we affirm.
BACKGROUND
In February 2017, the State filed a petition in the sepa-
rate juvenile court of Douglas County, seeking to adjudicate
Krysta’s six children under Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2016). In August, Auburne filed a complaint to inter-
vene in the adjudication proceedings, alleging that she was
the “in loco grandparent” of the children and therefore had an
interest in the adjudication proceedings under Neb. Rev. Stat.
§ 25-328 (Reissue 2016). Following a hearing, the juvenile
court denied Auburne’s complaint “for the reason that the
Complainant is not a biological relative, she is not [Krysta’s]
stepmother, and, additionally, [Auburne] resides in Texas.”
Auburne did not appeal this decision.
In May 2018, Auburne filed a second complaint to inter-
vene, alleging that she was the grandmother of the children
and therefore had a right to intervene. It appears that at least
one objection to the complaint was filed, but it is not con-
tained in our record. At the hearing on her second complaint,
Auburne attempted to prove that she had adopted Krysta by
- 137 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE INTEREST OF ARTAMIS G. ET AL.
Cite as 27 Neb. Ct. App. 135
offering into evidence a copy of Krysta’s birth certificate,
but the court sustained objections to the exhibit on the basis
that it was not authenticated. Krysta then testified that she
was adopted by Auburne in Texas in December 2017. Krysta
admitted that she was 33 years old at the time of the adop-
tion. On cross-examination, Krysta stated that she has lived
in Omaha, Nebraska, for approximately 8 years and, prior to
that, lived in Leander, Texas, for 2 years. She confirmed that
Auburne currently lives in Leander and has lived there over 10
years. Krysta further admitted that her biological mother was
still living and that her parental rights to Krysta had not been
terminated, nor had she relinquished those rights. Auburne
offered no further evidence.
Following Krysta’s testimony, the guardian ad litem for the
minor children objected to Auburne’s complaint to intervene,
arguing that there was no testimony that Auburne had any
relationship with the children. Counsel for the Department of
Health and Human Services also objected to the complaint
to intervene, alleging there was no evidence that Auburne
was the parent of Krysta or that she was a grandparent of
any of the children. The juvenile court subsequently denied
Auburne’s second complaint to intervene, stating that “[t]here
is no evidentiary basis to grant the relief sought.” Auburne
timely appealed.
ASSIGNMENT OF ERROR
Auburne assigns, restated, that the juvenile court abused its
discretion in denying her complaint to intervene.
STANDARD OF REVIEW
[1,2] Whether a party has the right to intervene in a pro-
ceeding is a 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 ques-
tions independently of the conclusions reached by the trial
court. Id.
- 138 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE INTEREST OF ARTAMIS G. ET AL.
Cite as 27 Neb. Ct. App. 135
ANALYSIS
Auburne asserts that the juvenile court abused its discretion
in denying her complaint to intervene. We do not review the
juvenile court’s decision for abuse of discretion; rather, as a
question of law, we resolve the question independently of the
lower court’s decision. See id. Auburne’s ability to intervene
is governed by § 25-328, which states:
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 per-
sons 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.
[3,4] Thus, as a prerequisite to intervention under § 25-328,
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 may be ren-
dered by the action. Wayne L. Ryan Revocable Trust v. Ryan,
297 Neb. 761, 901 N.W.2d 671 (2017). An indirect, remote,
or conjectural interest in the result of a suit is not enough to
establish intervention as a matter of right. Id. Therefore, a per-
son seeking to intervene must allege facts showing that he or
she possesses the requisite legal interest in the subject matter
of the action. Id.
On appeal, Auburne argues that she has a direct legal inter-
est in the adjudication proceedings because she stands in
loco parentis over the minor children. Additionally, Auburne
asserts that she has a direct legal interest in the adjudication
proceedings because she adopted Krysta and therefore has the
same legal rights as if she were Krysta’s biological mother.
We find each claim to be without merit.
- 139 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE INTEREST OF ARTAMIS G. ET AL.
Cite as 27 Neb. Ct. App. 135
[5] First, Auburne claims she stands in loco parentis over
the minor children. However, in loco parentis status was the
basis for Auburne’s first complaint to intervene. The juvenile
court denied that complaint, and Auburne did not appeal that
decision. The denial of a motion to intervene is a final, appeal-
able order. Streck, Inc. v. Ryan Family, 297 Neb. 773, 901
N.W.2d 284 (2017). See, also, In re Interest of Kayle C. &
Kylee C., 253 Neb. 685, 574 N.W.2d 473 (1998). Having failed
to appeal the denial of her complaint to intervene on an in loco
parentis basis, Auburne has waived this argument.
The operative pleading upon which this appeal is brought
is Auburne’s second complaint to intervene, in which she
asserts that as the children’s grandmother, she should be made
a party as a matter of right.
[6] The Nebraska Supreme Court has held that grandparents
have a sufficient legal interest in dependency proceedings
involving their biological or adopted minor grandchildren to
entitle them to intervene in such proceedings prior to final
disposition. In re Interest of Kayle C. & Kylee C., supra.
However, Auburne failed to prove that she is Krysta’s mother.
The only evidence adduced to support her assertion is Krysta’s
testimony that Auburne adopted her in December 2017 at the
age of 33. The birth certificate offered by Auburne, which
purportedly supported this assertion, was not an authenticated
copy and was not admitted into evidence.
[7] Moreover, Auburne did not submit to the court Texas’
adoption law; thus, the juvenile court could properly pre-
sume Texas adoption law to be the same as Nebraska’s.
See, Gruenewald v. Waara, 229 Neb. 619, 428 N.W.2d 210
(1988) (where applicable law of sister state is not presented
to Nebraska court, it is presumed to be same as law of
Nebraska); Quintela v. Quintela, 4 Neb. Ct. App. 396, 544 N.W.2d
111 (1996). Therefore, in order for this court to determine that
Auburne successfully adopted Krysta, Krysta’s testimony must
establish that the adoption was valid under Nebraska’s adop-
tion statute.
- 140 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE INTEREST OF ARTAMIS G. ET AL.
Cite as 27 Neb. Ct. App. 135
Adoption of an adult in Nebraska is governed by Neb.
Rev. Stat. § 43-101(2) (Reissue 2016), which states, in rel-
evant part:
The adoption of an adult child by another adult or adults
who are not the stepparent of the adult child may be per-
mitted if the adult child has had a parent-child relation-
ship with the prospective parent or parents for a period
of at least six months next preceding the adult child’s age
of majority and (a) the adult child has no living parents,
(b) the adult child’s parent or parents had been deprived
of parental rights to such child by the order of any court
of competent jurisdiction, (c) the parent or parents, if
living, have relinquished the adult child for adoption by
a written instrument, (d) the parent or parents had aban-
doned the child for at least six months next preceding the
adult child’s age of majority, or (e) the parent or parents
are incapable of consenting.
Assuming, without deciding, that Auburne could establish
she had a parent-child relationship with Krysta for the 6
months prior to Krysta’s age of majority, the record does not
support any of the circumstances set forth in § 43-101(2)(a)
through (e). Krysta testified that she has a living biological
mother and that her biological mother’s parental rights were
not terminated prior to Krysta’s adoption, nor did she relin-
quish her parental rights to Krysta. Further, there is no evi-
dence in the record before us indicating that Krysta was aban-
doned by her biological mother before she reached the age of
majority or that her biological mother is incapable of consent-
ing to Krysta’s adoption. Therefore, Auburne failed to prove
that she was Krysta’s mother and, thus, the children’s grand-
mother. Absent such relationship, Auburne did not have a legal
right to intervene as a grandparent.
At oral argument, Auburne’s counsel asserted that the evi-
dence was sufficient to find a beneficial relationship between
Auburne and the children and that, therefore, proof of a
grandparent relationship was not required. We note, however,
- 141 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE INTEREST OF ARTAMIS G. ET AL.
Cite as 27 Neb. Ct. App. 135
that Auburne presented no evidence at the hearing on her sec-
ond motion to intervene regarding her relationship with the
children; rather, only argument of her counsel was made on
this issue. The only evidence offered was the birth certificate
(which was not received) and Krysta’s testimony regarding the
purported adoption. Denial of the second complaint to inter-
vene was therefore proper.
CONCLUSION
For the foregoing reasons, we conclude that the juvenile
court did not err in denying Auburne’s complaint to intervene.
A ffirmed.