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IN RE INTEREST OF NETTIE F.

Cite as 295 Neb. 117

In re Interest of Nettie F., a

under 18 years of age

State of Nebraska and Mauree

Monahan, guardian ad litem, appel

v. Rodney P. and Brenda P., o

of Katherine P., appell

___ N.W.2d ___

Filed November 18, 2016. No. S-16-241.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision.

2. ____: ____. Before reaching the legal issues presented for review, it is 

the duty of an appellate court to determine whether it has jurisdiction 

over the matter before it.

3. Juvenile Courts: Legislature: Standing: Appeal and Error. Neb. Rev. 

Stat. § 43-2,106.01 (Reissue 2016), the juvenile code’s appeal statute, 

controls who has the right to appeal from a juvenile court’s placement 

order. Under this statute, the Legislature has not authorized an adjudicated child’s sibling to appeal from an adverse placement order.

Appeal from the Separate Juvenile Court of Douglas 

County: Patricia A. Lamberty, District Judge, Retired. A

dismissed.

Karen S. Nelson, of Carlson & Burnett, L.L.P., for 

appellants.

Ryan M. Hoffman and Mark F. Jacobs, of Anderson, 

Bressman & Hoffman, P.C., L.L.O., for appellee Maureen K. 

Monahan.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/18/2016 09:09 AM CST
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Cite as 295 Neb. 117

Heavican, C.J., Wright, Miller-Lerman, Cass

Kelch, and Funke,

Funke, 

NATURE OF CASE

The appellants, Rodney P. and Brenda P., are the adoptive parents of Katherine P., who is an older sibling of Nettie 

F., the child who is the subject of this juvenile dependency 

proceeding. Rodney and Brenda filed a complaint to intervene on Katherine’s behalf, to seek guardianship or adoption 

of Nettie. The court originally allowed them to intervene 

but later vacated that order and limited the foster parents 

and Katherine’s parents to presenting evidence on their own 

qualifications to be Nettie’s adoptive parents. After an evidentiary hearing, it found that Nettie’s foster parents and 

Katherine’s parents were equally qualified to be foster parents. 

But it determined that under Nebraska statutes implementing 

the federal Fostering Connections to Success and Increasing 

Adoptions Act of 2008 (FCA),1 a joint-sibling placement 

with Katherine’s parents would be contrary to Nettie’s safety 

and well-being. It found that disrupting her placement would 

negatively affect her. Instead, it ordered the Department of 

Health and Human Services (Department) to make reasonable 

efforts for continuous and frequent sibling visitation or ongoing interaction.

We conclude that whether an adjudicated child’s sibling 

can appeal from a juvenile court’s adverse placement order 

is governed by Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016), 

which does not authorize such appeal. Accordingly, we dismiss Rodney and Brenda’s appeal brought on Katherine’s 

behalf.

BACKGROUND

Nettie was born in June 2014. The Department placed her 

with Greg G. and Laura G. 3 days after her birth. Nettie’s 

1 See Pub. L. 110-351, 122 Stat. 3949.
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biological mother had previously lost her parental rights to 

her other children because of neglect. Laura testified that they 

were considered potential adoptive parents from the start and 

were told they would be able to adopt Nettie. But near the 

end of June, Rodney and Brenda learned about Nettie’s birth 

from someone they knew at the Department. They had finalized Katherine’s adoption about 6 months before Nettie’s birth. 

Katherine was born in 2011 and was about 3 years old during 

these proceedings. Rodney and Brenda immediately contacted 

Nettie’s case manager to express their interest in visitations, 

placement, and their eventual adoption of Nettie.

Rodney and Brenda had moved to Illinois after adopting 

Katherine, but they offered to move back to Nebraska to facilitate Nettie’s visitations with them. In September 2014, after 

Rodney and Brenda had completed a home study in Illinois, 

they filed a complaint to intervene on Katherine’s behalf. In 

December, the court granted them leave to do so. Later that 

month, Nettie’s parents voluntarily relinquished their parental rights.

In January 2015, the court issued an adjudication order in 

which it stated that Nettie’s permanency objective was adoption and ordered her placement with Greg and Laura to continue. The Department did not schedule any visitations between 

Katherine, her parents, and Nettie until March 2015, when 

Nettie was 9 months old. At that time, Rodney and Brenda 

drove from Illinois for visitations. They stated that Nettie and 

Katherine interacted well during visitations and that Nettie displayed no concerning behaviors.

In March 2015, Rodney and Brenda moved to change 

Nettie’s placement to their home. They asked the court to 

make the change quickly to avoid bonding problems as Nettie 

grew older. Greg and Laura responded with a complaint to 

intervene based on their status as Nettie’s foster parents and 

preadoptive parents. The court granted them leave to do so. In 

its order, the court stated that Nettie was thriving with Greg 

and Laura and ordered a bonding expert to meet with them to 
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determine whether disrupting her placement with them would 

be in her best interests.

In October 2015, Rodney and Brenda moved to vacate 

the March order allowing Greg and Laura to intervene. They 

argued that this court had recently clarified in In re Interest 

of Enyce J. & Eternity M.2 that foster parents have a right 

to participate in review hearings but no right to intervene as 

a party. On October 26, the guardian ad litem filed motions 

for the court to vacate its orders allowing the foster parents 

and Katherine’s parents to intervene. She argued that neither 

couple had standing to intervene. Rodney and Brenda objected 

that they had standing to intervene on Katherine’s behalf under 

Neb. Rev. Stat. § 43-1311.02 (Reissue 2016).

In November 2015, the court vacated its earlier orders allowing the foster parents and Katherine’s parents to intervene. 

It reasoned that under our case law, Greg and Laura had no 

statutory right to intervene as parties and that a juvenile court 

had no authority to permit an equitable intervention. The court 

also concluded that under our 2011 decision in In re Interest 

of Meridian H.,

3

 Rodney and Brenda could not intervene on 

Katherine’s behalf.

In January 2016, the court quashed Rodney and Brenda’s 

subpoenas for two caseworkers, who had been present during 

their visitations with Nettie, to testify at the final evidentiary 

hearing on Nettie’s placement. At that February hearing, the 

court overruled their motion to make an offer of proof intended 

to challenge the validity of a caseworker’s opinion. The court 

stated that the attorneys for the foster parents and Katherine’s 

parents were limited to calling their clients to testify about 

their own qualifications to be Nettie’s adoptive parents, “otherwise neither one of you have standing and are not parties in 

this case.”

2 In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d 413 

(2015).

3 In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
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After the hearing, the court issued an order in which it 

found that the foster parents and Katherine’s parents were 

equally qualified to be foster parents. But the court found that 

“it is in [Nettie’s] best interests” to be placed with Greg and 

Laura. Additionally, under § 43-1311.02, the court found that 

“joint sibling placement would be contrary to the safety and 

well-being of [Nettie] as she has been placed with [Greg and 

Laura] since birth and disruption of this placement would have 

negative effects on Nettie and not be in her best interest[s].” 

However, the court ordered the Department to “make reasonable effort to provide for continuous and frequent sibling visitation or for ongoing interaction between the siblings, Nettie 

[and] Katherine.”

ASSIGNMENTS OF ERROR

Rodney and Brenda assign, restated, that the juvenile court 

erred as follows:

(1) in vacating its order allowing them to intervene on 

Katherine’s behalf;

(2) in not allowing them to make an offer of proof at the 

February evidentiary hearing on Nettie’s placement;

(3) in quashing their subpoenas; and

(4) in violating Katherine’s due process right to a fair hearing by not allowing her to subpoena, confront, and crossexamine witnesses.

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

law, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision.4

ANALYSIS

[2] In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an 

4 In re Interest of Jackson E., 293 Neb. 84, 875 N.W.2d 863 (2016).
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appellate court to determine whether it has jurisdiction over 

the matter before it.5 Thus, before reaching the merits, we must 

determine whether we have jurisdiction of this appeal.

Rodney and Brenda contend the court erred in relying on 

In re Interest of Meridian H.6 to vacate the order that allowed 

them to intervene. There, we concluded that under Nebraska 

law, an unadjudicated sibling does not have a cognizable 

interest in a sibling relationship that is separate and distinct 

from the adjudicated child’s interest. We further concluded 

that the FCA does not establish any legal interest on the part 

of an unadjudicated sibling which could have been affected 

by the juvenile court’s placement order or serve as the basis 

for standing. Thus, the siblings could not demonstrate a 

personal stake in proceeding that would permit an appeal—

even if we assumed that a person who demonstrated such an 

interest could appeal despite the lack of statutory authority 

for such.

Rodney and Brenda contend that In re Interest of Meridian 

H. has been superseded by the Legislature’s 2011 enactment of Neb. Rev. Stat. § 43-1311.01 (Reissue 2016) and 

§ 43-1311.02 and the 2015 amendments to these statutes. 

These are two of the statutes that the Legislature enacted or 

amended to comply with the federal FCA. We briefly set out 

their requirements.

Since 2011, when a child is removed from parental custody or voluntarily placed with the Department, § 43-1311.01 

requires the Department to

identify, locate, and provide written notification of 

the removal of the child from his or her home, within 

thirty days after removal, to any noncustodial parent 

and to all grandparents, adult siblings, adult aunts, adult 

uncles, adult cousins, and adult relatives suggested by the 

child or the child’s parents, except when that relative’s 

5 Id.

6 In re Interest of Meridian H., supra note 3.
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history of family or domestic violence makes notification inappropriate.7

In 2015, the Legislature amended § 43-1311.01 to add “all parents who have legal custody of a sibling of the child” as persons who must receive the notification.8

 Among other things, 

the notice must provide the recipient with an “explanation 

of the options the relative has under federal, state, and local 

law to participate in the care and the placement of the child, 

including any options that may be lost by failing to respond to 

the notice.”9

Under § 43-1311.02(1)(a), the Department must make reasonable efforts to place an adjudicated child and a sibling in 

the same foster care or adoptive placement, even if the siblings’ 

custody orders were entered at separate times, unless such 

placement is contrary to the safety or well-being of any of the 

siblings. If the Department does not place the siblings together, 

§ 43-1311.02(1)(b) requires it to provide an explanation to the 

court and the siblings. Even if a court has terminated parental 

rights to the siblings, the Department must make reasonable 

efforts for a joint-sibling placement, or sibling visitation or 

contact, unless a court has previously suspended or terminated 

such placement or sibling visitation.10

Relying on our decision in In re Interest of Kayle C. & 

Kylee C.,

11 Rodney and Brenda contend that these statutes vest 

the siblings of an adjudicated child with a legal interest in the 

subject matter that is sufficient to confer standing to intervene 

in a dependency proceeding.

7 See 2011 Neb. Laws, L.B. 177, § 6 (codified at § 43-1311.01(1) (Cum. 

Supp. 2014)).

8 See 2015 Neb. Laws, L.B. 296, § 1 (codified at § 43-1311.01(1) (Reissue 

2016)).

9 See L.B. 177, L.B. 296, and § 43-1311.01(1)(b).

10 See § 43-1311.02(5).

11 In re Interest of Kayle C. & Kylee C., 253 Neb. 685, 574 N.W.2d 473 

(1998).
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The guardian ad litem argues that under § 43-1311.02(3), 

only the “[p]arties to the case” can file a motion for a jointsibling placement and that an adjudicated child’s siblings are 

not parties to the case under Neb. Rev. Stat. §§ 43-245(19) 

and 43-247(5) (Reissue 2016). She argues that even though 

the Department may not have fulfilled its duties in this case, 

neither § 43-1311.01 or § 43-1311.02 bestow any rights upon 

a sibling to intervene. Finally, she argues that to interpret 

these statutes as creating a legal right for siblings to intervene 

would overburden a foster care system already pressed to 

its limits.

It is true that in In re Kayle C. & Kylee C.,

12 we considered 

an appeal from grandparents who had been denied leave to 

intervene in a dependency proceeding involving their grandchildren. But the grandparents in that case appealed directly 

from the order denying them leave to intervene. We considered their appeal under Neb. Rev. Stat. § 25-328 (Reissue 

1995), which we later held serves as a guidepost for deciding 

whether a person can intervene in a juvenile proceeding.13

But because the grandparents had timely appealed from the 

juvenile court’s denial of their request to intervene, we had 

no need to consider whether grandparents can appeal from a 

juvenile court’s adverse placement order. In two more recent 

cases, however, we have addressed appeal issues in juvenile 

dependency proceedings that provide guidance here.

First, in In re Interest of Enyce J. & Eternity M.,14 we determined that under statutory changes to Nebraska’s Foster Care 

Review Act, foster parents do not have standing to appeal 

from an order changing a child’s placement. We acknowledged that in 1996, in In re Interest of Jorius G. & Cheralee 

12 Id.

13 See In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002), 

disapproved in part, In re Interest of Enyce J. & Eternity M., supra note 2.

14 In re Interest of Enyce J. & Eternity M., supra note 2.
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G.,15 we held foster parents have standing to intervene in a 

proceeding to consider a proposed placement change. But 

because the mother had relinquished her child for an adoption 

by the foster parents, they had a greater interest in a change 

of placement than foster parents normally have. More important, we pointed out that in 1996, Neb. Rev. Stat. § 43-1314 

(Reissue 1993) gave foster parents the right to notice of and 

participation in court review of a child’s placement. In 1998, 

however, the Legislature amended this statute to provide that 

the notice requirement “‘shall not be construed to require that 

such foster parent, preadoptive parent, or relative be made 

a party to the review solely on the basis of such notice and 

opportunity to be heard.’”16

In In re Interest of Destiny S., we held that under this statutory change, “a foster parent does not have an interest in the 

placement of an adjudicated child sufficient to warrant intervention in juvenile proceedings as a matter of right.”17 That 

is, a foster parent cannot intervene as a party. A foster parent’s right to participate in review proceedings is a “narrow 

one” that

does not extend to discovery, questioning, crossexamining, or calling witnesses beyond what is personally applicable to the foster parent’s own qualifications. 

Section 43-1314 gives foster parents a role in the proceeding, but it does not confer on them a right, title, or 

interest in the subject matter of the controversy.18

15 See In re Interest of Jorius G. & Cheralee G., 249 Neb. 892, 546 N.W.2d 

796 (1996), disapproved, In re Interest of Enyce J. & Eternity M., supra

note 2.

16 In re Interest of Destiny S., supra note 13, 263 Neb. at 263, 639 N.W.2d at 

407, quoting 1998 Neb. Laws, L.B. 1041.

17 Id. at 263-64, 639 N.W.2d at 407.

18 In re Interest of Enyce J. & Eternity M., supra note 2, 291 Neb. at 972, 

870 N.W.2d at 419.
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In In re Interest of Enyce J. & Eternity M., we reiterated 

our holding that foster parents can participate in review hearings under § 43-1314, but that they cannot intervene as a 

matter of right under § 25-328. A foster parent’s “ability to 

participate under the statute is less than that of a party.”19 We 

further clarified that a juvenile court is a statutorily created 

court of limited and special jurisdiction and as a result lacks 

the authority to permit equitable intervention.

We also extended the same reasoning that precludes foster 

parents from intervening to hold that they cannot appeal from 

adverse placement orders. We rejected the argument that foster 

parents have standing under the doctrine of in loco parentis 

because they exercise the rights of parents. We explained that 

foster parents do not have the rights of a parent and that all 

major, and many minor, decisions for a foster child must be 

approved by a caseworker from the Department, the child’s 

legal custodian. We concluded that because foster parents 

do not have an interest akin to that of a parent or the State 

in a child’s placement, they do not have a right or interest 

that gives them standing to appeal from an order changing a 

child’s placement.

A few months after we decided In re Interest of Enyce J. & 

Eternity M., we decided In re Interest of Jackson E.20 There, 

we again held that a child’s foster parents, one of whom was 

the child’s maternal grandmother, lacked standing to appeal 

from a juvenile order that denied their request to have their 

grandchild returned to their home. The child was placed with 

the grandmother and her husband for 21⁄2 years while the permanency objective was reunification with the parents. When 

the Department removed the child and placed him with other 

foster parents, the grandmother and her husband moved to 

intervene and requested that the child be returned to them. The 

juvenile court allowed them to intervene but concluded that 

19 Id. at 975, 870 N.W.2d at 421.

20 See In re Interest of Jackson E., supra note 4.
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the Department had proved changing the permanency objective to adoption and placing him with the new foster parents 

was in the child’s best interests.

On appeal, we stated that under In re Interest of Enyce 

J. & Eternity M., the foster parents had no right, title, or 

interest in the proceeding that gave them standing to appeal. 

We explained that a grandparent has no statutory right to 

appeal and only a diminished right to participate in juvenile 

proceedings under In re Interest of Kayle C. & Kylee C. We 

held that the “right of appeal in a juvenile case in this state 

is purely statutory, and neither foster parents nor grandparents, as such, have a statutory right to appeal from a juvenile 

court order.”21

Under § 43-2,106.01(2), an appeal from a juvenile court’s 

final order or judgment may be appealed by the following 

persons: “(a) The juvenile; (b) The guardian ad litem; [and] (c) 

The juvenile’s parent, custodian, or guardian.” We reiterated 

an older holding that foster parents with temporary placements 

are not a child’s custodians under the appeal statute. Because 

they did not fall into any category under § 43-2,106.01(2), 

we held “they have no right to take an appeal in these 

circumstances.”22

A court determines standing as it existed when a plaintiff commenced an action.23 Section 25-328 (Reissue 2016) 

requires a similar analysis when a nonparty attempts to intervene.24 As stated, we use § 25-328 as a guidepost for intervention issues in juvenile dependency proceedings.25 But these 

decisions clarified that grandparents and foster parents do not 

21 Id. at 88-89, 875 N.W.2d 867, citing Huskey v. Huskey, 289 Neb. 439, 855 

N.W.2d 377 (2014).

22 Id. at 90, 875 N.W.2d at 868.

23 See, e.g., Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).

24 See, e.g., In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 

(2016).

25 See In re Interest of Destiny S., supra note 13.
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have the status of “parties” in a juvenile dependency proceeding even if they have a limited right to participate. So we were 

implicitly determining whether a nonparty has the right to 

appeal a juvenile court’s adverse placement order.

[3] We have stated that in a proper case, a nonparty may 

have a sufficient interest in a judgment to appeal, but as a 

general rule, an appeal is available only to persons who were 

parties to the case below.26 Our recent cases have made clear 

that § 43-2,106.01, the juvenile code’s appeal statute, controls 

who has the right to appeal from a juvenile court’s placement 

order. We need not consider here whether the Legislature’s 

statutory changes were intended to permit an adjudicated 

child’s siblings to intervene in a dependency proceeding, subpoena witnesses, or make offers of proof. Even if that were 

true, under § 43-2,106.01, the Legislature has not authorized 

an adjudicated child’s sibling to appeal from an adverse placement order.

CONCLUSION

Consistent with our earlier decisions, we conclude that 

Rodney and Brenda have no right to appeal the court’s order 

on Katherine’s behalf and, as a result, this court has no jurisdiction over their purported appeal. Accordingly, we dismiss 

their appeal.

Appeal dismiss

26 See, Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb. 740, 

857 N.W.2d 313 (2014), citing Rozmus v. Rozmus, 257 Neb. 142, 595 

N.W.2d 893 (1999).