Interest of Kayle C., In re, S-97-013

• Decision Date: 02 January 1998
• Docket Number: No. S-97-013,S-97-013
• Citation: 253 Neb. 685,574 N.W.2d 473
• Parties: In re INTEREST OF KAYLE C. and Kylee C., children under 18 years of age. STATE of Nebraska, Appellee, v. MICHELLE C. and Donald Y., Appellees, and Danny Y. and Louise Y., Appellants.
• Court: Nebraska Supreme Court

Page 473

574 N.W.2d 473

253 Neb. 685

In re INTEREST OF KAYLE C. and Kylee C., children under 18 years of age.

STATE of Nebraska, Appellee, v. MICHELLE C. and Donald Y., Appellees, and Danny Y. and Louise Y., Appellants.

No. S-97-013.

Supreme Court of Nebraska.

Jan. 2, 1998.

Syllabus by the Court

1. Juvenile Courts: Appeal and Error. Cases arising under the Nebraska Juvenile Code, Neb.Rev.Stat. §§ 43-245 through 43-2,129 (Reissue 1993), are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the trial court's findings.

2. Juvenile Courts: Judgments: Appeal and Error. In reviewing questions of law arising in juvenile proceedings, an appellate court reaches a conclusion independent of the lower court's ruling.

3. Interventions. The interest required as a prerequisite to intervention under Neb.Rev.Stat. § 25-328 (Reissue 1995) 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.

4. Interventions: Pleadings. A person seeking to intervene in an action must allege facts showing that he or she possesses the requisite legal interest in the subject matter of the action.

5. Interventions. For purposes of ruling on a motion for leave to intervene, a 6. Parental Rights: Interventions. 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 proceedings prior to final disposition.

court must assume that the intervenor's factual allegations are true.

James Walter Crampton, Omaha, for appellants.

James S. Jansen, Douglas County Attorney, and Vernon Daniels, Omaha, for appellee State.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

STEPHAN, Justice.

Danny Y. and Louise Y. (hereinafter the grandparents) appeal from an order of the separate juvenile court of Douglas County denying their motion for leave to intervene. We determine, as a matter of first impression, that grandparents of a juvenile who is the subject of a dependency proceeding have a direct legal interest in the subject matter of the action which entitles them to intervene as a matter of right, and we therefore reverse the judgment and remand the cause to the juvenile court for further proceedings.

BACKGROUND

On November 9, 1994, the Douglas County Attorney, on behalf of the State of Nebraska, filed a petition in the separate juvenile court of Douglas County alleging that the court had jurisdiction over sisters Kayle C. and Kylee C., pursuant to Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1993), because they lacked proper parental care by reason of the faults or habits of their mother. The State alleged that "[o]n or about November 6, 1994 said children were dropped off by their mother at the home of Barbara Ross, and since that date, [the mother's] whereabouts are unknown." The court granted the State's motion for temporary custody pending adjudication as a matter of "immediate and urgent necessity for the protection of said children" and ordered the then Nebraska Department of Social Services (DSS) to retain custody of the children for placement in foster care or other appropriate placement with DSS. On November 10, 1994, the State filed an amended petition naming Donald Y. as the father of Kayle. He was subsequently permitted to intervene in the action as the father of Kayle. The identity of the father of Kylee does not appear in the record.

After conducting a detention hearing on November 22, 1994, the juvenile court ordered the children to remain in the temporary custody of DSS. At a pretrial hearing on December 13, 1994, the children's mother appeared and admitted the allegations in the amended petition. Based on this admission, the juvenile court adjudicated the children to be within its jurisdiction pursuant to § 43-247(3)(a) and ordered them to remain in the temporary custody of DSS.

On January 19, 1995, the juvenile court held a disposition hearing and ordered the children to remain in the temporary custody of DSS while the parents took steps necessary to comply with a plan designed to correct the conditions which led to the adjudication. Review hearings were conducted on April 18 and October 17, 1995, and April 29, 1996. DSS retained custody of the children, but the parents were granted visitation.

The grandparents attended the detention and disposition hearings held by the juvenile court and are identified in the orders entered by the court following those hearings as "Grandfather" and "Grandmother." On November 19, 1996, the grandparents filed a motion for leave to intervene in which they alleged that they were the paternal grandparents of Kayle and Kylee, that they had a "stable and positive relationship" with the children, and that they wished to have custody of them. The grandparents requested that "they be granted leave to intervene so that they may present evidence in support of their allegations that custody or placement of the minor children with them would be in the best interests of the children."

At a hearing on November 26, 1996, the juvenile court denied the grandparents' motion based upon a finding that there was "no

legal basis" upon which it could grant the motion. The grandparents perfected a timely appeal. Pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals, we removed this matter to our docket on our own motion.

ASSIGNMENT OF ERROR

The grandparents contend that the juvenile court erred in holding, as a matter of law, that they had no right to intervene in this proceeding.

SCOPE OF REVIEW

Cases arising under the Nebraska Juvenile Code, Neb.Rev.Stat. §§ 43-245 through 43-2,129 (Reissue 1993), are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the trial court's findings. See, In re Interest of Borius H. et al., 251 Neb. 397, 558 N.W.2d 31 (1997); In re Interest of D.W., 249 Neb. 133, 542 N.W.2d 407 (1996). In reviewing questions of law arising in such proceedings, an appellate court reaches a conclusion independent of the lower court's ruling. In re Interest of Tabatha R., 252 Neb. 687, 564 N.W.2d 598 (1997); In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996).

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(2). The State argues that since grandparents are not included within this statutory definition, they are precluded from intervening in dependency proceedings. We do not read § 43-245(2) so narrowly. The language of the statute is not exclusive; it merely identifies necessary parties to a juvenile proceeding. See In re E.I., 653 N.E.2d 503 (Ind.App.1995).

The question of whether the grandparents have a right to intervene in this action is governed by Neb.Rev.Stat. § 25-328 (Reissue 1995), which provides:

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 petition, 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.

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. Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537 (1992); Geer-Melkus Constr. Co., Inc. v. Hall County Museum Board, 186 Neb. 615, 185 N.W.2d 671 (1971). A person seeking to intervene in an action must allege facts showing that he or she possesses the requisite legal interest in the subject matter of the action. See Noble v. City of Lincoln, 158 Neb. 457, 63 N.W.2d 475 (1954). For purposes of ruling on a motion for leave to intervene, a court must assume that the intervenor's factual allegations are true. Basin Elec. Power Co-op. v. Little Blue N.R.D., 219 Neb. 372, 363 N.W.2d 500 (1985).

We have not previously addressed the issue of whether the grandparents of a juvenile who is the subject of proceedings under the Nebraska Juvenile Code possess a legal interest in such proceedings sufficient to permit them to intervene as a matter of right pursuant to § 25-328 prior to final disposition. We have examined grandparents' rights in juvenile proceedings following termination of parental rights. In In re Interest of Ditter, 212 Neb. 855, 859, 326 N.W.2d 675, 677 (1982), we held that "once parental rights of a child have been terminated as to a natural parent, the natural parents of such parent whose rights have been terminated are not entitled to continue visitation as a matter of right." We reasoned that since the intent of terminating parental rights was to divest any tie between the parent and child so that placement with an adoptive family could occur as quickly as possible, "little purpose would be served in continuing family ties between the grandparents and the child to be adopted." Id. at 857, 326 N.W.2d at 676. We specifically limited our holding to the facts of the case, noting that "[h]ad termination [of parental rights] not occurred, we would be confronted with a different question which we do not now decide." Id. at 859, 326 N.W.2d at 677.

Relying upon In re Interest of Ditter, we held in In re Interest of S.R., 217 Neb. 528, 352 N.W.2d 141...