Interest of Jorius G., In re
| Decision Date | 19 April 1996 |
| Docket Number | No. S-95-709,S-95-709 |
| Citation | 249 Neb. 892,546 N.W.2d 796 |
| Parties | In re Interest of JORIUS G. & Cheralee G., children under 18 years of age. STATE of Nebraska, Appellee, v. LEANN G. and Dee and Leonard Brown, Appellees, and Department of Social Services, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Parental Rights: Appeal and Error. Juvenile cases are reviewed de novo on the record, and the appellate court is required to reach a conclusion independent of the trial court's findings; however, where the evidence is in conflict, the appellate court will consider and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.
2. Parental Rights: Words and Phrases. Children without proper support under Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993) meet the definition of "neglected" or "dependent" children under Neb.Rev.Stat. § 43-1301(4) (Reissue 1993).
Appeal from the Juvenile Review Panel, DANIEL BRYAN, JR., CURTIS L. MASCHMAN, and AUGUST F. SCHUMAN, Judges, on appeal thereto from the County Court for Lincoln County, KENT E. FLOROM, Judge. Judgment of Juvenile Review Panel affirmed.
Don Stenberg, Attorney General, Royce Harper, and Beth Tallon, Special Assistant Attorney General, for appellant.
Joy Shiffermiller, of Ruff, Nisley & Lindemeier, North Platte, for appellees Brown.
The Department of Social Services (DSS) appeals the decision of a juvenile review panel which affirmed the Lincoln County Court's denial of a change of placement recommended by DSS.
Juvenile cases are reviewed de novo on the record, and the appellate court is required to reach a conclusion independent of the trial court's findings; however, where the evidence is in conflict, the appellate court will consider and may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another. In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994).
This case involves the foster care placement of Jorius G. and Cheralee G., children who have been adjudicated to be within the meaning of Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993) as being without proper support through no fault of their parent. Prior to adjudication, the children's mother had custody of them. After adjudication, the Lincoln County Court, sitting as a juvenile court, placed the care and custody of the children with DSS for foster care placement. The children were subsequently placed by DSS with Dee and Leonard Brown on January 6, 1992.
On December 17, 1993, the mother entered into an open adoption agreement which purported to relinquish her parental rights to the Browns. The father was not involved because his parental rights were terminated. The adoption agreement had the initial support of DSS, which began a home study of the Browns.
Dennis O'Brien, a DSS caseworker, was assigned to the children in April or May 1994, and thereafter, DSS requested an evaluation of the Browns' appropriateness as adoptive parents. A psychological evaluation of the Browns was performed by Dr. Stephen Skulsky on September 10, 1994. Skulsky's conclusion was that
Following this evaluation, DSS determined that the Browns should not be permitted to adopt the children. Instead, DSS sought to change placement from the Browns to placement with a sister of the children's father. DSS filed a notice of change of placement, and on April 6, 1995, a hearing was held for an immediate review of placement by the Lincoln County Court. Present at the hearing were the deputy county attorney, the children's guardian ad litem, the mother and her counsel, and the Browns and their counsel.
Evidence in support of the change of placement was adduced by the deputy county attorney. The Browns presented evidence in opposition to the change of placement, and the guardian ad litem questioned witnesses from both sides. After reviewing the evidence, the county court held that a change of placement was not in the children's best interests. Upon review, a juvenile review panel affirmed the judgment of the county court. DSS now appeals.
DSS assigns the following errors to the juvenile review panel: (1) The panel did not address the issue of whether foster parents have standing to object to a change of placement and (2) the panel erred in affirming the April 6, 1995, order of the county court.
DSS argues that the Browns, as foster parents, do not have standing to object to DSS' plan to change placement of the children from the Browns' foster care. DSS claims that the parties who have standing to object to DSS' actions with respect to a change of placement are limited to those parties listed in Neb.Rev.Stat. § 43-285(2) (Reissue 1993), which provides:
Following an adjudication hearing at which a juvenile is adjudged to be under subdivision (3) of section 43-247, the court may order the department to prepare and file with the court a proposed plan for the care, placement, and services which are to be provided to such juvenile and his or her family.... If any other party, including, but not limited to, the guardian ad litem, parents, county attorney, or custodian, proves by a preponderance of the evidence that the department's plan is not in the juvenile's best interests, the court shall disapprove the department's plan.
DSS points out that foster parents are not specifically included in § 43-285(2) and that, therefore, the court should not have admitted any evidence offered by the Browns at the dispositional hearing. DSS claims that without the evidence introduced on behalf of the Browns, its plan would have been adopted. DSS was not present at the hearing, and the record does not indicate that DSS requested a continuance in order to secure legal counsel. Nevertheless, DSS complains that because it had no legal representation at the hearing, the county court should have on its own motion considered the issue of standing.
Section 43-285(3) provides:
The department ... shall file a report and notice of placement change with the court and shall send copies of the notice to all interested parties ... before the placement of the juvenile is changed from what the court originally considered to be a suitable family home or institution to some other custodial situation.... The court, on its own motion or upon the filing of an objection to the change by an interested party, may order a hearing to review such a change in placement and may order that the change be stayed until completion of the hearing.... The department or any other party may request a review of the change in placement by a juvenile review panel in the manner set out in section 43-287.04.
Considering the language of § 43-285(2) and (3), we conclude that foster parents are interested parties. Section 43-285(2) states: "If any other party, including, but not limited to, the guardian ad litem, parents, county attorney, or custodian, proves by a preponderance of the evidence that the department's plan is not in the juvenile's best interests, the court shall disapprove the department's plan." (Emphasis supplied.)
The Foster Care Review Act, Neb.Rev.Stat. §§ 43-1301 to 43-1318 (Reissue 1993), addresses the "placements of neglected, dependent, or delinquent children." See § 43-1301(4). In the case at bar, the children were adjudicated to be without proper support through no fault of their parent under § 43-247(3)(a). Children without proper support under § 43-247(3)(a) meet the definition of "neglected" or "dependent" children under § 43-1301(4). Thus, the standing provisions of the Foster Care Review Act aid our determination of who is an interested party under § 43-285.
To this end, § 43-1314 provides:
Except as otherwise provided in the Nebraska Indian Child Welfare Act, notice of the court review and the right of participation in all court reviews pertaining to a child in a foster care placement shall be provided by the court having jurisdiction over such child for the purposes of foster care placement either in court, by mail, or in such other manner as the court may direct. Such notice shall be provided to: (1) The person charged with the care of such child; (2) the child's parents or guardian unless the parental rights of the parents have been terminated by court action as provided in section 43-292 or 43-297; (3) the foster child if age fourteen or over; (4) the foster parent or parents of the foster child; (5) the guardian ad litem of the foster child; and (6) the state board.
Section 43-1314 states that foster parents shall have notice and the right to participate in all court reviews pertaining to a child in foster placement. Therefore, we conclude that the Browns have standing to participate in the foster care placement review as foster parents.
There is another reason why the Browns have standing. The children's mother has consented to an open adoption by the Browns and has signed a relinquishment to that effect. We have held that in a private adoption, the adoptive family stands on equal ground with a natural mother with respect to a determination of custody. For example, in Lum v. Mattley, 208 Neb. 789, 305 N.W.2d 878 (1981), a natural mother had relinquished custody of her child and sought return through a writ of habeas corpus. We held that after the valid relinquishment of the child by the natural mother, the adoptive family stood on equal ground with the natural mother with respect to determining custody. Likewise, in Yopp v. Batt, 237 Neb. 779, 467 N.W.2d 868 (1991), we...
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