State v. Kristopher E. (In re Interest of Nizigiyimana R.)

295 Neb. 324

889 N.W.2d 362

IN RE INTEREST OF NIZIGIYIMANA R., a child under 18 years of age.

State of Nebraska, appellee,

v.Kristopher E. and Stephanie E., appellants.

No. S-15-975.

Supreme Court of Nebraska.

Filed December 16, 2016

Bruce E. Stephens, of Stephens Law Offices, P.C., L.L.O., York, for appellants.

Megan Alexander, Deputy Hall County Attorney, for appellee.

Stacie A. Goding, of Myers & Goding, P.C., L.L.O., guardian ad litem.

Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Funke, J.

I. NATURE OF CASE

The appellants, Kristopher E. and Stephanie E., appeal from the juvenile court's order that denied them leave to intervene, on their daughter's behalf, to seek the placement and eventual adoption of Nizigiyimana R. (Ziggy). They had privately adopted Ziggy's younger sister, who was born after Ziggy was removed from her mother's home and placed in the custody of the Nebraska Department of Health and Human Services (Department), but before the court terminated the parental rights of Ziggy's parents. Kristopher and Stephanie sought Ziggy's placement and adoption to maintain and foster Ziggy's relationship with their daughter. But the juvenile court determined the Nebraska statutes implementing the federal Fostering Connections to Success and Increasing Adoptions Act of 2008 (FCA)¹ did not give them or their daughter any cognizable interests in the dependency proceeding. Kristopher and Stephanie appealed. We affirm.

We conclude that Neb. Rev. Stat. §§ 43–1311.01 and 43–1311.02 (Reissue 2016) do not permit a nonparty to seek a joint-sibling placement or define an adjudicated child's sibling as a party. Instead, the plain language of § 43–1311.02(3) permits only a party to move for a joint-sibling placement. We further conclude that Kristopher and Stephanie were not preadoptive parents with a right to participate in review hearings. Accordingly, we conclude that the juvenile court did not err in denying them leave to intervene on their daughter's behalf to seek a joint-sibling placement.

II. BACKGROUND

1. FACTS PRECEDING INTERVENTION HEARING

On October 1, 2013, the State sought Ziggy's adjudication under Neb. Rev. Stat. § 43–274(3)(a) (Reissue 2008), when he was about 6 months old. In its December 2013 disposition order, the court continued Ziggy's placement with his foster parents with a goal of reunification. Ziggy had four older half siblings, ranging in age from 6 to 12, whom the Department placed with their great-grandmother and her husband. The couple adopted the older siblings in May 2014. That same month, Ziggy's parents had another child, who was Ziggy's full sister and about a year younger than him. She was born about 5 months after the court entered the disposition order calling for Ziggy's reunification with his parents.

Ziggy's younger sister, however, left the hospital in the custody of Kristopher and Stephanie because Ziggy's parents had consented to her private adoption. Ziggy's mother testified that she had asked Ziggy's great-grandmother for help in finding someone to adopt Ziggy's younger sister because she was not ready to have another child. Stephanie was a distant cousin to Ziggy and his siblings, and Ziggy's mother and father chose Kristopher and Stephanie as the adoptive parents. Ziggy's great-grandmother testified that she and her husband did not accept placement of Ziggy or his younger sister because of their ages and because she did not want their placement to interfere with the couple's adoption of Ziggy's older siblings.

Stephanie testified that shortly after Ziggy's parents gave her and Kristopher custody of Ziggy's sister in May 2014, they asked the Department to place Ziggy with them because they were licensed foster care providers. The Department denied their request. On November 17, they adopted Ziggy's younger sister. On December 11, the State moved to terminate the parental rights of Ziggy's parents.

Stephanie and Ziggy's great-grandmother arranged regular visits or contacts between Ziggy's younger sister and his four older half siblings to maintain their relationships. Beginning in January 2015, the Department allowed Ziggy to visit with his siblings as well. Ziggy's great-grandmother believed that Ziggy and his younger sister had developed a bond in the times they had visited.

On April 7, 2015, the State filed an amended motion to terminate the parental rights of Ziggy's parents. The next day, the court entered the termination order. The court ordered the Department to prepare a new permanency plan for adoption and scheduled a review hearing for the end of May. After the court terminated parental rights in April, the Department ceased Ziggy's visitations with his siblings.

On April 17, 2015, Kristopher and Stephanie filed a complaint to intervene. They alleged that they had adopted Ziggy's younger sister and wished to have Ziggy placed with them for adoption to preserve the siblings' familial relationship. They claimed a right to intervene because § 43–1311.02 requires the Department to make reasonable efforts for a joint-sibling placement. Alternatively, they sought equitable intervention for the same reason and because their intervention was in Ziggy's best interests. They attached a copy of the Department's regulations that required placement teams to give preference to adult relatives and siblings.

The Department objected to intervention by Kristopher and Stephanie. Regarding their daughter, it argued that she and Ziggy had no relationship before he was removed (because she was born after his removal) and that they had no legal relationship solely because Ziggy's sister had been adopted. Regarding Kristopher and Stephanie, it argued that if a great-grandparent and foster parent cannot intervene under this court's prior holdings, then distant relatives also cannot. It argued that Kristopher and Stephanie did not have a substantial relationship with Ziggy or a sufficient interest to intervene because they had only received supervised visitations with him for a short period when he visited his siblings. It argued that the juvenile court was not bound by the Department's regulations but must consider a child's best interests and that Ziggy had bonded with his foster parents.

In May 2015, the court approved a case plan, which is not part of the record, calling for Ziggy's adoption. It scheduled a permanency hearing for November and a hearing on Kristopher and Stephanie's motion to intervene for July. In June, they moved to reinstate Ziggy's visitation with their daughter. They alleged that after they filed their complaint to intervene, the Department immediately discontinued the siblings' visitation. In July, they moved to have Ziggy placed with them and for an order permitting him to visit their daughter throughout the proceedings.

2. INTERVENTION HEARING

At the July intervention hearing, the court sustained the State's objection to Kristopher and Stephanie's offers of proof regarding their initial request to have Ziggy placed with them. For their offer of proof, Stephanie stated that she was related to Ziggy and that the Department did not provide her with a statutory notice about a relative's options to participate in a child's care and placement. The court agreed with the State that this proof was beyond the scope of whether she and Kristopher could intervene.

A caseworker testified that she had assisted another caseworker to place Ziggy with foster parents when he was removed from parental custody. She stated that to the best of her knowledge, when Ziggy was removed, his mother did not mention Kristopher and Stephanie as possible relatives for placement. Similarly, she denied any knowledge that Ziggy's great-grandmother had identified them as a relative placement.

Kristopher and Stephanie argued that the Legislature had implemented the FCA through statutes that required the Department to (1) exercise due diligence to find a removed child's adult relatives and the parents of a sibling and (2) provide a specified notice to these persons that explains their options to participate in the care and placement of the child. They argued the new statutes required the Department to make reasonable efforts to place siblings in the same foster care or adoption placement and that those new statutes had superseded this court's decision in In re Interest of Meridian H.² They claimed standing to intervene as Ziggy's adult relatives and as the adoptive parents of his sister.

3. COURT'S ORDER

In its order, the court denied Kristopher and Stephanie's leave to intervene for six reasons. First, the court concluded their kinship relationship to Ziggy was too distant to warrant their intervention.

Second, the court implicitly concluded that the Department had complied with its duties under these facts. It stated that the Department's placement policies "were applicable at the time of the initial placement of the juvenile ... where the juvenile remains currently, and that the Department is under no constraints at the present time to effect a change in placement in order to comply with regulations." The court reasoned that the Department had not placed Ziggy with a nonrelative until after the great-grandmother and her husband had declined Ziggy's placement with them: "The [FCA] arguments advanced by [Kristopher and Stephanie] are not appropriate to the present facts."

Third, the court agreed with the State that even if Kristopher and Stephanie had a sufficient legal interest to intervene. they had not sought intervention before the trial started and had filed a complaint only after the parents' parental rights to Ziggy were terminated. It implicitly concluded that they had not complied with the requirement under Neb. Rev. Stat. § 25–328 (Reissue 2016) to seek intervention before the trial commenced.

Fourth, the court ruled that Kristopher and Stephanie did not have standing to intervene as preadoptive parents. Fifth, it determined that their daughter did not have any cognizable rights...