State v. Leah B. (In re Interest Jordon B.)
| Decision Date | 04 November 2022 |
| Docket Number | S-22-019. |
| Citation | 312 Neb. 827,981 N.W.2d 242 |
| Parties | IN RE Interest of JORDON B., a child under 18 years of age. State of Nebraska and Nebraska Department of Health and Human Services, appellees, v. Allen B. and Leah B., appellees, Christina Boydston, guardian ad litem for Jordon B., appellee and cross-appellant, Jason D. on behalf of J.D. and L.D., intervenor-appellee, and Andrew Todd and Alicia Todd, appellants and cross-appellees. |
| Court | Nebraska Supreme Court |
Linsey A. Camplin, Lincoln, and Sam Baue, of McHenry, Haszard, Roth, Hupp, Burkholder, Blomenberg & Camplin, P.C., L.L.O., for appellants.
Leslie E. Remus and Trevor J. Rogers, Senior Certified Law Student, for appellee Nebraska Department of Health and Human Services.
Brianna L. McLarty, Deputy Dodge County Attorney, for appellee State of Nebraska.
Timothy E. Sopinski, of Sopinski Law Office, for appellee Allen B.
Adam R. Tripp, of Tripp Law Office, Fremont, for appellee Leah B.
Pamela Lynn Hopkins, of Hopkins Law Office, L.L.C., for guardian ad litem.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Andrew Todd and Alicia Todd appeal the order of the juvenile court for Dodge County which granted a change of placement for Jordon B. They claim that they have certain rights as foster parents, and they claim error in, inter alia, the juvenile court's determination that Andrew did not have standing to intervene as an adult sibling of Jordon. In addition, Christina Boydston, Jordon's guardian ad litem, cross-appeals and claims that the juvenile court erred when it found that Andrew was a "sibling" of Jordon and when it failed to appoint counsel to represent her or new counsel to represent Jordon after Andrew challenged the credibility and veracity of her guardian ad litem report.
We determine that as foster parents, the Todds do not have standing to appeal the juvenile court's placement order or the right to intervene as parties. We further determine that Andrew is not a "sibling" to Jordon, and for that reason, the juvenile court did not err when it denied Andrew's petition to intervene. We further determine that the record does not show the guardian ad litem requested appointment of counsel for herself or new counsel for Jordon and that therefore, the juvenile court did not err when it failed to make such appointments. We therefore affirm the juvenile court's order.
Jordon was born in September 2020, and his biological parents were Leah B. and Allen B. The Nebraska Department of Health and Human Services (DHHS) removed Jordon from Leah and Allen's home on September 25. The juvenile court for Dodge County granted temporary custody of Jordon to DHHS based on concerns that Leah and Allen were not able to care for him and provide an accurate feeding schedule. Such concerns were based in part on the fact that two older sons of Leah and Allen had been removed from their custody for similar reasons. The court appointed Boydston as Jordon's guardian ad litem.
Jordon was initially placed with Jason D. and Lesley D. Jason is Leah's father, and Lesley is Leah's stepmother by virtue of her marriage to Jason. Jason and Lesley had adopted Jordon's two older brothers after Leah's and Allen's parental rights to the two were terminated.
After Jason and Lesley advised DHHS that they could not provide permanency or long-term care to Jordon, DHHS placed Jordon with the Todds. Andrew is Lesley's adult biological son. Andrew is not biologically related to Leah, but he is her stepbrother by virtue of his mother Lesley's marriage to Leah's father, Jason. Andrew is also a sibling to Jordon's two older brothers by virtue of Lesley's adoption of the two boys.
In an order filed December 9, 2020, the court adjudicated Jordon to be a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). The court later approved a case plan with a primary permanency plan of reunification, but the court determined that custody should remain with DHHS and that Jordon should remain in out-of-home placement.
On July 14, 2021, Leah filed a motion for change of placement in which she requested that Jordon's placement be changed to the residence of Rita Pospishil, who is Allen's cousin. On the same day, Jason, as biological grandfather and adoptive father, filed a complaint on behalf of Jordon's two older brothers requesting that they be allowed to intervene in this case to seek a joint-sibling placement of Jordon with them in Jason and Lesley's home. The court allowed Jason to intervene on behalf of the brothers, and it set a hearing on the request for joint-sibling placement and on Leah's motion to change placement to Pospishil. The court ordered submission of reports prior to the hearing, including, inter alia, a home study with regard to Pospishil and a guardian ad litem report. The hearing was set for September 16.
On September 9, 2021, the Todds filed a motion to intervene in the case. They sought to intervene as Jordon's foster parents, and they alleged that Jordon had been placed with them for most of his life and that it was in Jordon's best interests to continue placement with them. Andrew also alleged that he was a relative of Jordon. He alleged that he was a stepuncle to Jordon based on his stepsibling relationship with Leah and that he was also a stepbrother to Jordon based on his mother Lesley's adoption of Jordon's two older brothers. Andrew alleged that he was a sibling of Jordon under the Foster Care Review Act (the Act) and that as a sibling he had an interest in the case.
After the hearing, the juvenile court filed an order on October 27, 2021, in which it ruled on pending motions. The court first addressed the Todds’ motion to intervene. The court determined that the Todds did not have standing to intervene on the basis that they were Jordon's foster parents. The court cited In re Interest of Enyce J. & Eternity M. , 291 Neb. 965, 870 N.W.2d 413 (2015), for the proposition that although foster parents have a statutory right to participate in review hearings, their ability to participate was less than that of a party, and that foster parents do not have an interest that entitles them to intervene in a juvenile case as a matter of right.
The court then turned to Andrew's request to intervene on the basis that he was a sibling of Jordon. The court defined the issue as being "whether Andrew ... has standing to intervene as an adult stepbrother to Jordon pursuant to Neb. Rev. Stat. [§] 43-1311.02." The court cited Neb. Rev. Stat. § 43-1311.02(1)(a) (Cum. Supp. 2020), which provides as follows:
Reasonable efforts shall be made to place a child and the child's siblings in the same foster care placement or adoptive placement, unless such placement is contrary to the safety or well-being of any of the siblings. This requirement applies even if the custody orders of the siblings are made at separate times and even if the children have no preexisting relationship.
The court cited In re Interest of Nizigiyimana R. , 295 Neb. 324, 889 N.W.2d 362 (2016), in which we held that the duty to make reasonable efforts to implement a joint-sibling placement existed even if a court had terminated a parent's relationship with each child and even if the siblings had not previously lived together and that the duty extended to joint-sibling placements with unadjudicated siblings. The court also referenced § 43-1311.02(9), which generally provides that a sibling of a juvenile has a right to intervene for limited purposes. The court noted that § 43-1311.02(1)(a) referred specifically to situations in which the "children" have no preexisting relationship. The court read this reference to mean that § 43-1311.02 applied only to siblings who were children, and it noted that the statute made no reference to adult siblings. The court therefore concluded that "the limited right to seek ‘joint-sibling placement, sibling visitation, or ongoing interaction with their sibling’ in subsection (9) belongs to minor siblings only." The court therefore denied Andrew's motion to intervene as a sibling of Jordon.
In its October 27, 2021, order, the court next addressed Leah's motion to change Jordon's placement to Pospishil and the older brothers’ request for placement with them in Jason and Lesley's home. The court noted that DHHS had complied with § 43-1311.02(1)(a) when it initially placed Jordon in Jason and Lesley's home. The court, however, further noted the testimony of a DHHS caseworker that Jordon's placement had been changed because Jason and Lesley were "incapable or unwilling to provide care for Jordon" and that therefore, "it was not in Jordon's best interest to put him in a home ... that was unable to provide for his basic needs due to the reported issues of the other children in the home." The caseworker further testified that Jason and Lesley had not subsequently asked that DHHS place Jordon back in their home and that the caseworker did not become aware they were interested in taking placement until the motion in this case was filed.
The court found that the primary permanency plan in this case was reunification of Jordon with Leah and Allen and that Leah and Allen were making progress toward reunification. The court noted that the caseworker had testified that it was in Jordon's best interests to be in a placement that was more conducive to the plan of reunification and that the caseworker opined that Pospishil's relationship with Leah and Allen was conducive to that goal although Jason and Lesley's relationship was less conducive and could negatively affect the goal of reunification.
The court stated that another witness who had supervised Leah and Allen's visitations with Jordon agreed that they were making good progress and that it was in Jordon's best interests to be in a placement with Pospishil, who would be conducive to the goal of reunification. The court further noted that the home study showed that Pospishil had a...
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