SUMMARY: A foster parent has standing to appeal a court order approving a case plan that changes placement, and such an order is final and appealable. However, the record supports the juvenile court’s order changing placement from the grandparent’s home due to her violation of court orders.
Montana, DOB 9/07, was removed from the home of the mother, Nicole, in January 2011 after Montana’s grandmother reported that Nicole had left Montana with her for over a week and had not returned. She also reported Nicole was using drugs and not able to care for Montana. After Nicole admitted to using methamphetamines, the court adjudicated Montana within the meaning of 43-247(3)(a). Disposition and review hearings were held in March, July and September 2011, and January and April 2012. Nicole was ordered to do a number of things, including supervised visits with Montana, and the court ordered that Nicole’s boyfriend, John, have no contact with Montana. Ann attended the April 2012 hearing and on June 19, 2012, filed a motion to intervene, which the court granted on July 25, 2012. On July 24, 2012, a mediation was held where it was agreed Nicole would relinquish her parental rights and Ann would be considered as an adoptive placement. On July 26, 2012, DHHS notified the court and parties that it planned to change Montana’s placement on August 3 due to Ann allowing unsupervised contact with Nicole. The placement change was stayed but an ex parte motion for change of placement was approved on July 31, 2012. At the August 2012 hearing, evidence was presented that Ann allowed Nicole to visit the home without the presence of visitation staff, which was prohibited by court order. There was also evidence that Nicole lived with Ann, that John was a frequent visitor, and that Ann admitted to breaking the rules. Contrary evidence in the form of testimony by Ann was that she did not intentionally violate any court orders and that her understanding was that Nicole could visit under Ann’s supervision during family holidays. She also testified that Ann had not lived with her since 2009 and that John has not visited the home. After the hearing, the court found the evidence presented by the guardian ad litem to be credible and that Ann had knowingly violated the court’s orders, and ordered that placement of Montana exclude the home of Ann. Ann appealed.
The Nebraska Court of Appeals affirmed the juvenile court order’s change in placement. As to standing, the Court of Appeals noted that the Nebraska Supreme Court has provided foster parents with standing to object to the Department case plan changing placement, In re Interest of Jorius G. and Cheralee G., 249 Neb. 892, 546 N.W.2d 796 (1996), and that this must translate to their standing to appeal an order approving that change in placement. It also noted that N.R.S. 43-2,106.01(2)(c) allows an appeal by “an individual to whose care the juvenile has been awarded” and concluded this could apply to Ann. As to whether the order is final and appealable, the Court of Appeals noted its previous finding in an appeal by the guardian ad litem that a juvenile court’s approval of a Department plan to change foster homes was final and appealable. In re Interest of John T., 4 Neb. App. 79, 538 N.W.2d 761 (1995). It then held that the order changing placement affected a substantial right held by Ann because she was Montana’s primary caregiver during the proceedings and a majority of Montana’s life, and the parties had just days earlier agreed that Ann should be considered as an adoptive placement. Because it affected Ann’s substantial rights, the Court of Appeals concluded the order was final and appealable. Finally, the Court of Appeals concluded that the juvenile court did not abuse its discretion in granting the motion for change in placement because there was evidence that Ann intentionally disobeyed court orders and permitted Nicole to have visits with Montana and allow John to be present, and therefore put Nicole’s interests ahead of Montana’s, and that the juvenile court gave Ann’s refuting evidence “no weight…as it is inconsistent with the greater weight of the evidence”, which was “credible, probative and entitled to weight.” 21 Neb. App. 315, 327. This, the Court of Appeals concluded, was a clear indication by the juvenile court as to what evidence it found credible and the Court of Appeals could not find the juvenile court abused its discretion by finding so.