SUMMARY: A person who held out to be the child’s biological father for 15 years and had the child placed with him as a potential long-term placement has a sufficient interest for intervention. Filing the petition to intervene after the adjudication hearing began was not untimely. Placement of the child with a former husband who treated the child as his own for 15 years was not improper.
Alicia and Brian started dating in September 1994, married in June 1995 and had Sarah in July 1995. Brian was listed on Sarah’s birth certificate as the father. Alicia and Brian divorced in 1997, and he was ordered to pay child support and was granted visitation rights. Over the next decade, they mediated visitation disputes twice and there was some evidence suggesting Alicia mentioned Brian not being the father. However, Brian acted during that time as though he was Sarah’s father. In 2009, Brian submitted to genetic testing which found that Brian was not Sarah’s father. In January 2011, the district court entered a temporary order in the dissolution case suspending Brian’s child support and visitation until further order. No other proceedings were ever held. Brian testified that he had no physical contact with Sarah after that but had verbal contact. In July 2012, the State filed a petition as to Sarah and her three siblings and against Alicia and her husband Frederick. Sarah, who at age 17 was enrolled in college and working full time, was placed with Brian. Brian received no state money to care for Sarah. In September 2012, Alicia and Frederick entered no contest pleas at adjudication, which Brian attended. On November 1, prior to disposition, Brian filed a petition to intervene. After a hearing, the juvenile court sustained the petition to intervene, finding that Brian acted as Sarah’s father for a significant part of her life. As to placement, despite Alicia’s preference that Sarah be placed with relatives in Georgia or in an apartment on her own, the court continued placement with Brian. Alicia appealed challenging the timeliness and sufficiency of intervention, and the placement.
The Nebraska Court of Appeals affirmed the juvenile court order. On the issue of timely intervention, the Court of Appeals noted that although N.R.S. 25-328 provides a right to intervene before trial has commenced, the Nebraska Supreme Court had rejected that language from being an absolute bar to an entitled applicant, and has previously found an intervention after adjudication proper. See In re Interest of Kayle C. & Kylee C., 253 Neb. 685, 574 N.W.2d 473 (1998). In this case, the Court of Appeals found that Brian appealed just after adjudication and prior to disposition, and that he therefore timely asserted his right. As to sufficiency of his legal interest to intervene, the Court of Appeals noted that caselaw has established that an order of child support in a dissolution decree could not, prior to N.R.S. 43-1412.01, be re-litigated. Although N.R.S. 43-1412.01, passed in 2008, provides a process for disestablishment of paternity, the Court of Appeals found that nothing in the record confirmed that Brian’s paternity was disestablished. Although a temporary order was entered, no further order was entered. Rather, the juvenile court found that Brian possessed an interest as a parent under parens patriae because he acted in the role of Sarah’s parent for the majority of her life, which has been affirmed in Quintela v. Quintela, 4 Neb. App. 396, 544 N.W.2d 111 (1996), as to a husband and his former wife’s child. In this case, the Court of Appeals noted that Brian acted in loco parentis in that he was listed on the birth certificate, paid child support, attended visits and treated Sarah as his own for fifteen years, and that there was no indication that Brian took any steps to relinquish his role or that formal proceedings did so. Therefore, the Court of Appeals concluded he had sufficient interest to intervene. As to the issue of placement, although Brian does not fit within the defined parameters of N.R.S. 71-1902 defining who should provide foster care, the Court of Appeals found that Brian was Sarah’s legal father for 15 years and stood in loco parentis to her, a situation not contemplated by the statute. The Court of Appeals noted the agreement of the State and Guardian ad Litem on the placement and concluded by finding no reversible error in the placement decision.