In re Interest of Meridian H.

• Decision Date: 06 May 2011
• Docket Number: No. S–10–905.,S–10–905.
• Citation: 798 N.W.2d 96,281 Neb. 465
• Parties: In re Interest of MERIDIAN H., a child under 18 years of age.State of Nebraska and Department of Health and Human Services, appellees and cross-appellees,v.Jeffrey H. and Karen H., on behalf of Damon H. and Aleeah H., minor children, intervenors-appellants,andMark H. and Tammy H., intervenors-appellees and cross-appellants,andShane K. and Brandi K., intervenors-appellees.
• Court: Nebraska Supreme Court

281 Neb. 465

798 N.W.2d 96

In re Interest of MERIDIAN H., a child under 18 years of age.State of Nebraska and Department of Health and Human Services, appellees and cross-appellees,

v.Jeffrey H. and Karen H., on behalf of Damon H. and Aleeah H., minor children, intervenors-appellants,andMark H. and Tammy H., intervenors-appellees and cross-appellants,andShane K. and Brandi K., intervenors-appellees.

No. S–10–905.

Supreme Court of Nebraska.

May 6, 2011.

OPINION TEXT STARTS HEREWest CodenotesRecognized as Unconstitutional42 U.S.C.A. § 671.

Syllabus by the Court

1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent 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, which requires the appellate court to reach a conclusion independent of the lower court's decision.

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: Jurisdiction. Standing relates to a court's power, that is, jurisdiction, to address issues presented and serves to identify those disputes which are appropriately resolved through the judicial process.

5. Standing. Under the doctrine of standing, a court may decline to determine merits of a legal claim because the party advancing it is not properly situated to be entitled to its judicial determination. The focus is on the party, not the claim itself.

6. Standing: Jurisdiction. Standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify exercise of the court's remedial powers on the litigant's behalf.

7. Standing: Claims: Parties. To have standing, a litigant must assert the litigant's own rights and interests, and cannot rest a claim on the legal rights or interests of third parties.

8. Child Custody. The effect of a particular placement on a child's relationship with siblings is but one factor, albeit an important one, which a court should consider in determining whether the placement is in the child's best interests.

Christine P. Costantakos, Omaha, for intervenors-appellants.

Sandra K. Markley, Deputy Sarpy County Attorney, for appellee State of Nebraska.Carla Heathershaw Risko, Special Assistant Attorney General, for appellee Department of Health and Human Services.Karen S. Nelson, of Schirber & Wagner, L.L.P., for intervenors-appellees Mark H. and Tammy H.Patrick A. Campagna, Omaha, and Stephanie M. Nevins, Senior Certified Law Student, of Lustgarten & Roberts, P.C., L.L.O., for intervenors-appellees Shane K. and Brandi K.Daniel J. Hill, of Stinson, Morrison & Hecker, L.L.P., Omaha, and Sarah Helvey for amicus curiae Nebraska Appleseed Center for Law in the Public Interest.Ann W. Davis, P.C., guardian ad litem.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER–LERMAN, JJ.STEPHAN, J.

Meridian H. is a 3–year–old girl who was adjudicated pursuant to Neb.Rev.Stat. § 43–247(3)(a) (Reissue 2008) and has been in foster care in Nebraska for all but a few weeks of her life. Her presumed biological father died before she was born, and her biological mother's parental rights have been terminated. She has two older siblings, both minors, who were adopted before her birth upon relinquishment of parental rights by their biological parents. The adoptive parents, on behalf of the siblings, intervened in the juvenile court proceedings and requested that Meridian be placed in their home in the State of Minnesota. The separate juvenile court of Sarpy County denied the request, and the adoptive parents now appeal. Meridian's maternal grandparents, who also intervened in the juvenile proceedings, have filed a cross-appeal.

FACTS AND PROCEDURAL BACKGROUND

Tiffani H. is the biological mother of Damon H., born in 2002, and Aleeah H., born in 2003. Their biological father was Isaiah J. Upon relinquishment of parental rights, Damon and Aleeah were adopted in the State of Minnesota by Jeffrey H. and Karen H. in December 2004. The family currently resides in Minnesota.

Isaiah died in June 2007. Nine days later, Tiffani gave birth to Meridian. Although Isaiah's name did not appear on the birth certificate, Tiffani “strongly believed” that he was Meridian's father. Paternity was never definitively established, but genetic testing excluded another man who thought he might be Meridian's father. For purposes of this appeal, we assume that Isaiah was Meridian's father and that Meridian, Damon, and Aleeah are full biological siblings.

Although it is unclear from the record, the parties indicate in their briefs that Tiffani resided in Nebraska at the time of Meridian's birth. When Meridian was approximately 2 weeks old, Tiffani took her to Minnesota to visit Meridian's siblings' family and Meridian's paternal grandmother.

On or about September 17, 2007, Tiffani was involved in a motor vehicle accident in Nebraska and was cited for driving under the influence and several other offenses for which she was jailed. Meridian, who was in the vehicle at the time of the accident, was initially placed with a family member. On September 20, Meridian was taken into the custody of the Nebraska Department of Health and Human Services (DHHS) and placed in a foster home. When Jeffrey and Karen learned of this development sometime during the fall of 2007, they notified DHHS that they were willing and interested in providing a foster home for Meridian.

The State initiated abuse and neglect proceedings in the separate juvenile court for Sarpy County on September 26, 2007, and on October 3, the court continued Meridian's placement in the temporary custody of DHHS and ordered that Tiffani have supervised visitation. In December 2007, the State amended its petition and Meridian was adjudicated a child pursuant to § 43–247(3)(a) based upon Tiffani's admission of the allegations of the amended petition.

After a disposition hearing on February 20, 2008, the juvenile court found that reasonable efforts had been made to eliminate the need for Meridian's removal from her home, but that because Tiffani was incarcerated and unable to care for Meridian, returning her to the parental home at that time was contrary to her best interests. The tentative permanency plan was for eventual reunification with Tiffani. Pursuant to that plan, the court ordered Tiffani to complete a parenting program and a chemical dependency evaluation.

After a brief placement in another foster home, on March 10, 2008, DHHS placed Meridian in the foster home of Shane K. and Brandi K., who reside in La Vista, Nebraska. On April 10, noting that the tentative permanency plan was still reunification, the juvenile court ordered Tiffani to complete a specific residential chemical dependency treatment program, and it placed Meridian in Tiffani's custody at the treatment facility. On May 13, DHHS returned Meridian to the foster parents' home, and she has resided there continuously since then.

Following a hearing on July 23, 2008, the court ordered Meridian to remain in the custody of DHHS, and Tiffani was allowed supervised visitation. The court also ordered DHHS to obtain a home study of Jeffrey and Karen's home under the Interstate Compact on Placement of Children.¹ In an order entered on September 11, the court noted that the permanency plan for reunification with Tiffani continued to be appropriate because Tiffani had entered a treatment program, but it noted that the concurrent plan was adoption. The court ordered custody to remain with DHHS, and again ordered Tiffani to complete a parenting program and a residential chemical dependency treatment program.

In December 2008, Tiffani informed a DHHS case manager that she still desired reunification with Meridian. At about the same time, a man contacted DHHS and stated that he might be Meridian's biological father. On December 17, the court continued custody with DHHS and ordered it to conduct an expedited home study of Jeffrey and Karen's home in Minnesota.

In February 2009, DHHS arranged for paternity testing, which results excluded the person who had indicated that he might be Meridian's father. In the same month, Tiffani informed DHHS that she wished to relinquish parental rights with respect to Meridian. The juvenile court ordered that DHHS continue to have custody of Meridian and also ordered an evaluation to determine her best interests with respect to placement. At this point, DHHS considered both the foster parents and Jeffrey and Karen to be potential adoptive families for Meridian. In June, DHHS obtained the court-ordered home study which “highly recommended” placement of Meridian with Jeffrey and Karen.

In April 2009, DHHS retained Glenda Cottam, Ph.D., J.D., to conduct a placement suitability assessment for Meridian. Based upon this evaluation, Cottam concluded: “Although either the [foster parents'] home or [Jeffrey and Karen's] home would be an excellent adoptive home for Meridian, the undersigned psychologist believes that Meridian should grow up with the opportunity to have a close and loving relationship with her two biological siblings and extended family.” Cottam noted that Meridian “could experience some difficulties in adjusting/transitioning” to Jeffrey and Karen's home, but that they appeared “able and willing” to assist Meridian with respect to “issues related to attachment problems.” On June 14, DHHS advised the court that it agreed with Cottam's recommendation. It recommended that the permanency objective be changed to adoption and that Meridian be placed in Jeffrey and Karen's home. The guardian ad litem approved this plan “reluctantly,” noting that...