838 N.W.2d 389
Neb. Ct. App.2013Background
- Sarah born July 1995 during Alicia and Brian’s marriage; Brian listed on birth certificate and later ordered to pay child support and receive visitation after 1997 divorce.
- Paternity not challenged until mediation in 2004–2005 and again in 2009; voluntary genetic test in 2009 showed 0% probability Brian is biological father.
- A 2011 temporary district court order suspended Brian’s support and visitation pending trial; no final district-court termination of parental rights appears in the record.
- In July 2012 DHHS removed Sarah (then 17) from Alicia’s home and placed her with Brian; State recommended continued placement with Brian.
- Brian filed to intervene in November 2012 (after adjudication but before disposition); juvenile court granted intervention and continued Sarah’s placement with Brian.
- Alicia appealed, arguing (1) Brian’s intervention was untimely and he lacked a legal interest to intervene; and (2) placing Sarah with Brian violated foster-care licensing law and was not in Sarah’s best interests.
Issues
| Issue | Alicia's Argument | Brian's Argument | Held |
|---|---|---|---|
| Timeliness of intervention | Petition untimely because filed after adjudication; §25‑328 requires intervention before trial commences | Filed shortly after adjudication and before first disposition hearing; acted diligently | Intervention not barred as untimely; juvenile court may allow intervention after adjudication and Brian acted promptly |
| Legal interest to intervene (paternity / in loco parentis) | Brian is not biological father, not stepfather, and not in loco parentis so lacks standing to intervene | Born during marriage, held out as father for ~15 years, had custody placement and ongoing relationship; in loco parentis status exists | Brian had sufficient legal interest (presumption of legitimacy; in loco parentis over long period); juvenile court did not err |
| Placement with Brian (licensing / best interests) | Placement violates foster-care licensing statute (§71‑1902) because Brian is not related by blood/marriage/adoption and lacks a foster license | Not a foster placement: Brian was Sarah’s legal/functional parent for most of her life; DHHS and guardian ad litem recommended placement and Sarah preferred it | Placement with Brian was appropriate and in Sarah’s best interests; statute did not apply on these facts |
Key Cases Cited
- In re Interest of Kayle C. & Kylee C., 253 Neb. 685, 574 N.W.2d 473 (Neb. 1998) (grandparents may have sufficient legal interest to intervene in juvenile proceedings, intervention may be proper after adjudication)
- In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (Neb. 2002) (in loco parentis terminates when duties cease; placement alone may not create in loco parentis)
- Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (Neb. 2012) (§43‑1412.01 allows disestablishment of prior paternity determinations in limited circumstances)
- Quintela v. Quintela, 4 Neb. App. 396, 544 N.W.2d 111 (Neb. Ct. App. 1996) (presumption of legitimacy; blood tests may rebut presumption)
- Pribil v. French, 179 Neb. 602, 139 N.W.2d 356 (Neb. 1965) (§25‑328 provides right to intervene before trial; timeliness and diligence are relevant)