In re Interest of Joseph C.

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In re Interest of Joseph C.

Caselaw No.
No. S-17-961
Filed on
Friday, May 4, 2018

Summary:

Tina E., the biological aunt of Joseph, appeals an order out of the Lincoln County Court which found that Joseph’s nonrelative foster placement and permanency through adoption by them is in his best interests. This case is dismissed for lack of standing pursuant to Neb. Rev. Stat. § 43-2,106.01(2).

The State filed a petition on behalf of Joseph in June of 2015. Eventually, the State filed to TPR both of his parents. Joseph stayed with both his maternal grandparents and a maternal aunt and uncle before being placed in an agency based foster home with Heather and Kevin. Ten days after being placed in the agency based foster home, in June of 2016, the Court terminated his biological parents’ rights. Two days after the TPR, Tina was located through family finding. Tina lives in Wyoming and is the biological aunt and adoptive sister of Joseph’s father, Michael. Until she was located through family finding, Tina was not aware that Joseph existed. She immediately made efforts to be involved.

In February of 2017, Tina was granted visitation with Joseph. During Review Hearings, the Court continued to allow Tina and her husband to have visits with Joseph with the goal of eventual placement with Tina. DHHS asked to change Joseph’s placement to Tina in June of 2017, but the State and GAL opposed this change. After a hearing, the Court took the matter under advisement. In August of 2017, the Court ordered that Joseph’s current placement was in his best interests and that it would be unhealthy to Joseph to change placement due to his diagnosis of PTSD.

Tina appeals the change in permanency goal from “reunification” with her to adoption by the foster parents and refusing to change Joseph’s placement to her home.

An appellate court reviews cases de novo on the record. In re Interest of Enyce J. & Eternity M., 291 Neb. 965 (2015). A jurisdictional question is a matter of law. In re Interest of Becka P. et al., 296 Neb. 365 (2017).

The Court first addresses the jurisdictional question of standing. The right to appeal a juvenile case is statutory. Neb. Rev. Stat. § 43-2,106.01(2) states that an appeal may be taken by:

The juvenile;
The guardian ad litem;
The juvenile’s parent, custodian, or guardian. For purposes of this subdivision, custodian or guardian shall include, but not be limited to, the Department…, an association, or an individual to whose care the juvenile has been awarded pursuant to the Nebraska Juvenile Code; or
The county attorney or petitioner…

Tina does not fit into any of the enumerated categories.

This Court previously found that the right to appeal is purely statutory and foster parents and grandparents do not have the right to appeal pursuant to Neb. Rev. Stat. § 43-2,106.01(2). In re Interest of Jackson E., 293 Neb. 84 (2016). Tina is not a custodian under Neb. Rev. Stat. § 43-2,106.01(2) because she never had custody of Joseph. Her family relationship also does not provide standing.

Tina makes an argument based on legislative intent, but this Court already addressed that argument in In re Interest of Artharena D., 253 Neb. 613 (1997). There, the Court found that the Legislature intended custody to mean something different than an award under the Juvenile Code – to protect those with alternative custody arrangements. The Court also looks to the plain language of the statute and the language around custodian does to extend to relatives like Tina.

The preference for relative placement does not change who has the right to appeal.

Therefore, the appeal is dismissed for lack of standing.