In re Interest of Destiny S.

• Decision Date: 22 February 2002
• Docket Number: No. S-01-170.,S-01-170.
• Citation: 263 Neb. 255,639 N.W.2d 400
• Parties: IN RE INTEREST OF DESTINY S., a child under 18 years of age. State of Nebraska, Appellee. v. Randall S. and Linda S., Appellees, and Dorothy B., Appellant.
• Court: Nebraska Supreme Court

639 N.W.2d 400

263 Neb. 255

IN RE INTEREST OF DESTINY S., a child under 18 years of age.

State of Nebraska, Appellee. v. Randall S. and Linda S., Appellees, and Dorothy B., Appellant.

No. S-01-170.

Supreme Court of Nebraska.

February 22, 2002.

David C. Mitchell, Fremont, of Yost, Schafersman, Lamme, Hillis, Mitchell, Schulz & Twidwell, P.C., L.L.O., and, on brief, Catherine L. Shugrue-Schaffner, Omaha, P.C., L.L.O., for appellant.

Joe Stecher, Dodge County Attorney, and Kevin J. Slimp for appellee State of Nebraska.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, Justice.

Dorothy B. appeals from an order of the county court for Dodge County, sitting as a juvenile court, overruling her motion for leave to intervene in a juvenile dependency proceeding to determine the final placement of her great-granddaughter, an adjudicated child, and further overruling her motion for discovery.

BACKGROUND

Destiny S. was born on December 24, 1993. Dorothy is the child's biological maternal great-grandmother. On December 12, 1996, the Dodge County Court, sitting as a juvenile court, conducted a detention hearing and concluded that Destiny should be removed from her mother's home and placed in the temporary custody of the Nebraska Department of Social Services, now the Nebraska Department of Health and Human Services (DHHS). On January 13, 1997, the court adjudicated Destiny to be a child within the meaning of Neb. Rev.Stat. § 43-247(3)(a) (Cum.Supp.1996) and ordered that she remain in the temporary custody of DHHS. Upon removal from her mother's home in December 1996, Destiny resided with Dorothy at her home in Fremont, Nebraska.

On October 9, 1998, after both of her biological parents relinquished their parental rights, Destiny was adopted by Randall S. and Linda S. Destiny resided in Fremont with Randall and Linda from March 27, 1998, until May 5, 2000, when the State filed a petition alleging that Destiny was a child as defined in § 43-247(3)(a) due to physical abuse by Randall. At that time, Destiny was removed from Randall and Linda's home and placed in the temporary custody of DHHS, which placed her in the care of foster parents.

At an adjudication hearing on May 31, 2000, the court accepted relinquishments of parental rights executed by Randall and Linda, Destiny's adoptive parents. Thereupon, the court adjudicated Destiny to be a child within the meaning of § 43-247(3)(a) and directed that she remain in the custody of DHHS pending further proceedings. The court ordered DHHS to submit a permanency plan within 30 days and further directed that Dorothy be included in planning and given notice of all further proceedings. The judge referred to Dorothy as "one person that Destiny has had as a constant in her life." Dorothy's counsel entered an appearance on June 13.

At a dispositional hearing held on July 5, 2000, DHHS filed a plan recommending that Destiny remain in its custody with a permanency goal of placement with an adoptive family. Dorothy appeared with counsel. Referring to Dorothy as "the one stable influence family connection that [Destiny has] had consistently throughout her life," the court inquired as to whether Dorothy was being considered for adoptive placement. The DHHS caseworker replied that Dorothy, as well as several other persons, was under consideration. Through counsel, Dorothy expressed her strong desire to be considered as an adoptive parent. The court approved the plan to place Destiny for adoption and continued the hearing for 60 days to permit a professional evaluation of the various adoptive placements under consideration.

Another hearing was held on August 16, 2000, to consider a request by DHHS for a change in Destiny's foster placement. The guardian ad litem recommended, on a "short term basis only," that Destiny be placed with Dorothy subject to substantial and regular visitation with other persons who were being considered as prospective foster parents. At the conclusion of the hearing, the court advised Dorothy, who was present with counsel, that Destiny would be placed with her "as a grandmother" pending future resolution of placement issues. An order approving temporary placement with Dorothy was entered on August 24. The order included a requirement of liberal visitations by other prospective adoptive parents and a requirement that neither Dorothy nor the other prospective adoptive parents discuss the issue of permanent placement with Destiny.

On January 5, 2001, another hearing was held to change Destiny's temporary placement. Based upon testimony from a caseworker who was attempting to place Destiny for adoption, the court approved the change recommended by DHHS and placed Destiny with Destiny's cousin, a prospective adoptive parent, finding that the change was in Destiny's best interests. Dorothy was given notice of all the juvenile proceedings described above and was represented by counsel at such proceedings.

On January 4, 2001, prior to the second hearing on the temporary placement change, Dorothy filed a motion for leave to intervene and a motion for discovery. In the motion to intervene, Dorothy asserted her biological relationship to Destiny and her role as Destiny's "primary caretaker" and "the only individual with whom Destiny... has established a meaningful bond." Dorothy further alleged that DHHS was "embarking on a course which will, if adopted by the Court, effectively eliminate [Dorothy's] role as primary caretaker as well as any rights which [Dorothy] may otherwise have as to be considered as an adoptive parent or have meaningful visitation rights." Finally, Dorothy alleged that permitting her to intervene in the juvenile proceeding would be in Destiny's best interests.

The State filed an objection to Dorothy's motion asserting that she lacked legal standing to intervene. Evidence concerning the motion was received at the January 5, 2001, temporary placement hearing. On January 12, the court entered an order overruling Dorothy's motion to intervene, as well as her motion for discovery. The court determined that Dorothy and Destiny's cousin were

parties of interest, only as it applies to their qualification to serve as placement for Destiny, and therefore, may present evidence regarding their qualifications. They are not parties of interest allowing discovery, questioning, cross-examining, or calling witnesses beyond that that is personally applicable to their qualifications for consideration of the Court.

From this order, Dorothy perfected this timely appeal, which we removed to our docket on our own motion pursuant to our authority to regulate the dockets of the appellate courts of this state. See Neb. Rev.Stat. § 24-1106(3) (Reissue 1995).

ASSIGNMENTS OF ERROR

Dorothy assigns that the juvenile court erred in (1) failing to recognize that she was an interested party as a matter of law as Destiny's great-grandmother, who is of good moral character and was "suitable family"; (2) failing to recognize her right to intervene as a foster parent; (3) failing to allow her to intervene as a person who stood in loco parentis to Destiny; (4) failing to recognize that she had a justiciable interest in the controversy, thus giving her the right to intervene; (5) failing to allow her to intervene as a matter of equitable discretion; (6) failing to find that any combination of the foregoing provided a basis for intervention; (7) failing to receive evidence in support of her motion for leave to intervene; and (8) overruling her motion for discovery.

STANDARD OF REVIEW

Cases arising under the Nebraska Juvenile Code, Neb.Rev.Stat. §§ 43-245 through 43-2,129 (Reissue 1998), are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the trial court's findings. In re Interest of Kayle C. & Kylee C., 253 Neb. 685, 574 N.W.2d 473 (1998). In reviewing questions of law arising in such proceedings, an appellate court reaches a conclusion independent of the lower court's ruling. Id.

ANALYSIS

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(11). The juvenile code contains no specific provisions governing the rights of other persons to intervene in juvenile proceedings. However, juvenile proceedings are civil in nature. See, In re Interest of A.M.H., 233 Neb. 610, 447 N.W.2d 40 (1989); In re Interest of Theodore W., 4 Neb.App. 428, 545 N.W.2d 119 (1996). Moreover, such proceedings must be fundamentally fair. See In re Interest of Kassara M., 258 Neb. 90, 601 N.W.2d 917 (1999). We therefore look to the rules governing intervention in civil proceedings as a guidepost in determining whether an individual has a right to intervene in juvenile proceedings.

Generally, intervention in civil actions is governed by Neb.Rev.Stat. § 25-328 (Reissue 1995), which permits intervention by one "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." The interest required as a prerequisite to intervention under this statute is 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 in the action. Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001); In re Interest of Kayle C. & Kylee C., supra. One seeking to intervene in an action must submit a petition setting forth the facts on which the intervention rests. Ruzicka v. Ruzicka, supra; In re Interest of Kiana T.,

262 Neb. 60, 628 N.W.2d 242 (2001); Neb.Rev.Stat. § 25-330 (Reissue 1995). Here, Dorothy filed a pleading styled as a "motion" alleging specific facts upon which she bases her claimed right to intervene. It appears that the parties and the juvenile court treated this document as a petition, as do we.

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