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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NIZIGIYIMANA R.
Cite as 295 Neb. 324
In re I nterest of
Nizigiyimana R.,
a child under 18 years of age.
State of Nebraska, appellee, v. K ristopher E.
and Stephanie E., appellants.
___ N.W.2d ___
Filed December 16, 2016. No. S-15-975.
1. Jurisdiction: Interventions: Standing: Final Orders: Appeal and
Error. An appellate court exercises jurisdiction over an appeal from an
order denying intervention even if the appellant would not have standing
to appeal from the court’s final order or judgment on the merits.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
3. Interventions. Whether a nonparty has the right to intervene is a ques-
tion of law.
4. Statutes. The meaning and interpretation of a statute present questions
of law.
5. Juvenile Courts: Interventions: Equity. A juvenile court lacks author-
ity to permit an equitable intervention.
6. Juvenile Courts: Jurisdiction: Parties. When a juvenile court adjudi-
cates a child under Neb. Rev. Stat. § 43-247(3) (Reissue 2016), the court
has exclusive original jurisdiction over the parties listed in § 43-247(5).
7. Interventions: Minors. Because the Nebraska Juvenile Code contains
no specific provisions governing the rights of other persons to intervene
in juvenile proceedings, the rules governing intervention in civil pro-
ceedings generally serve as a court’s guidepost in determining whether
nonparties can intervene.
8. Interventions. Under Neb. Rev. Stat. § 25-328 (Reissue 2016), to be
entitled to intervene in an action, a nonparty must show a direct and
legal interest. A nonparty must lose or gain by the direct operation and
legal effect of the judgment that may be rendered in the action. A non-
party must allege facts showing that he or she possesses the requisite
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IN RE INTEREST OF NIZIGIYIMANA R.
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legal interest in the subject matter of the action and must be joining the
proceedings to defend his or her own rights or interests. An indirect,
remote, or conjectural interest in the result of a proceeding will not
establish intervention as a matter of right.
9. Interventions: Pleadings. In ruling on a request for leave to intervene,
a court assumes that the nonparty’s factual allegations are true.
10. Statutes. Where general and special provisions of statutes are in con-
flict, the general law yields to the special provision or more spe-
cific statute.
11. Administrative Law: Minors. Under Neb. Rev. Stat. §§ 43-1311.01
and 43-1311.02 (Reissue 2016), the Department of Health and Human
Services’ duties regarding siblings do not depend on whether both sib-
lings are adjudicated under Neb. Rev. Stat. § 43-247 (Reissue 2016) or
whether the department has placement authority for both siblings.
12. Administrative Law: Minors: Legislature. The Legislature has not
created a private right of action for an adjudicated child’s sibling to
enforce the Department of Health and Human Services’ duties under
Neb. Rev. Stat. §§ 43-1311.01 and 43-1311.02 (Reissue 2016). Section
43-1311.02(3) specifically limits the right to enforce these duties
to parties.
13. Administrative Law: Minors: Parties. The only persons who can
enforce the Department of Health and Human Services’ duties under
Neb. Rev. Stat. § 43-1312.02 (Reissue 2016) are a guardian ad litem, on
behalf of an adjudicated child, or an adjudicated child’s parent, guard-
ian, or custodian.
14. Statutes: Legislature: Intent. A court gives statutory language its
plain and ordinary meaning and will not look beyond the statute to
determine the legislative intent when the words are plain, direct, and
unambiguous.
15. ____: ____: ____. When statutes dealing with the same subject matter
do not show a contrary legislative intent, a court interprets them so that
they are consistent, harmonious, and sensible.
16. Statutes: Legislature: Minors: Words and Phrases. Interpreting Neb.
Rev. Stat. §§ 43-1311.01 and 43-1311.02 (Reissue 2016) so that they are
consistent with the Nebraska Juvenile Code means that the Legislature’s
definition of a party in the juvenile code also applies to the term “party”
in § 43-1311.02(3).
17. Minors: Adoption: Parental Rights. A preadoptive parent in a depen-
dency proceeding is a foster parent whom a juvenile court has approved
for a future adoption because a child’s parent has surrendered his or her
parental rights, a court-approved permanency plan does not call for the
child’s reunification with his or her parent, or the parents’ parental rights
have been or will be terminated.
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IN RE INTEREST OF NIZIGIYIMANA R.
Cite as 295 Neb. 324
Appeal from the County Court for Hall County: Philip M.
M artin, Jr., Judge. Affirmed.
Bruce E. Stephens, of Stephens Law Offices, P.C., L.L.O.,
for appellants.
Megan Alexander, Deputy Hall County Attorney, for
appellee.
Stacie A. Goding, of Myers & Goding, P.C., L.L.O., guard-
ian ad litem.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
I. NATURE OF CASE
The appellants, Kristopher E. and Stephanie E., appeal from
the juvenile court’s order that denied them leave to intervene,
on their daughter’s behalf, to seek the placement and even-
tual adoption of Nizigiyimana R. (Ziggy). They had privately
adopted Ziggy’s younger sister, who was born after Ziggy
was removed from her mother’s home and placed in the
custody of the Nebraska Department of Health and Human
Services (Department), but before the court terminated the
parental rights of Ziggy’s parents. Kristopher and Stephanie
sought Ziggy’s placement and adoption to maintain and foster
Ziggy’s relationship with their daughter. But the juvenile court
determined the Nebraska statutes implementing the federal
Fostering Connections to Success and Increasing Adoptions
Act of 2008 (FCA)1 did not give them or their daughter any
cognizable interests in the dependency proceeding. Kristopher
and Stephanie appealed. We affirm.
We conclude that Neb. Rev. Stat. §§ 43-1311.01 and
43-1311.02 (Reissue 2016) do not permit a nonparty to seek a
joint-sibling placement or define an adjudicated child’s sibling
1
See Pub. L. 110-351, 122 Stat. 3949.
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IN RE INTEREST OF NIZIGIYIMANA R.
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as a party. Instead, the plain language of § 43-1311.02(3) per-
mits only a party to move for a joint-sibling placement. We
further conclude that Kristopher and Stephanie were not pre-
adoptive parents with a right to participate in review hearings.
Accordingly, we conclude that the juvenile court did not err in
denying them leave to intervene on their daughter’s behalf to
seek a joint-sibling placement.
II. BACKGROUND
1. Facts Preceding
Intervention Hearing
On October 1, 2013, the State sought Ziggy’s adjudication
under Neb. Rev. Stat. § 43-274(3)(a) (Reissue 2008), when
he was about 6 months old. In its December 2013 disposition
order, the court continued Ziggy’s placement with his foster
parents with a goal of reunification. Ziggy had four older half
siblings, ranging in age from 6 to 12, whom the Department
placed with their great-grandmother and her husband. The
couple adopted the older siblings in May 2014. That same
month, Ziggy’s parents had another child, who was Ziggy’s full
sister and about a year younger than him. She was born about 5
months after the court entered the disposition order calling for
Ziggy’s reunification with his parents.
Ziggy’s younger sister, however, left the hospital in the
custody of Kristopher and Stephanie because Ziggy’s parents
had consented to her private adoption. Ziggy’s mother testi-
fied that she had asked Ziggy’s great-grandmother for help
in finding someone to adopt Ziggy’s younger sister because
she was not ready to have another child. Stephanie was a
distant cousin to Ziggy and his siblings, and Ziggy’s mother
and father chose Kristopher and Stephanie as the adoptive
parents. Ziggy’s great-grandmother testified that she and her
husband did not accept placement of Ziggy or his younger
sister because of their ages and because she did not want their
placement to interfere with the couple’s adoption of Ziggy’s
older siblings.
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IN RE INTEREST OF NIZIGIYIMANA R.
Cite as 295 Neb. 324
Stephanie testified that shortly after Ziggy’s parents gave
her and Kristopher custody of Ziggy’s sister in May 2014, they
asked the Department to place Ziggy with them because they
were licensed foster care providers. The Department denied
their request. On November 17, they adopted Ziggy’s younger
sister. On December 11, the State moved to terminate the
parental rights of Ziggy’s parents.
Stephanie and Ziggy’s great-grandmother arranged regular
visits or contacts between Ziggy’s younger sister and his four
older half siblings to maintain their relationships. Beginning in
January 2015, the Department allowed Ziggy to visit with his
siblings as well. Ziggy’s great-grandmother believed that Ziggy
and his younger sister had developed a bond in the times they
had visited.
On April 7, 2015, the State filed an amended motion to
terminate the parental rights of Ziggy’s parents. The next day,
the court entered the termination order. The court ordered the
Department to prepare a new permanency plan for adoption
and scheduled a review hearing for the end of May. After
the court terminated parental rights in April, the Department
ceased Ziggy’s visitations with his siblings.
On April 17, 2015, Kristopher and Stephanie filed a com-
plaint to intervene. They alleged that they had adopted Ziggy’s
younger sister and wished to have Ziggy placed with them for
adoption to preserve the siblings’ familial relationship. They
claimed a right to intervene because § 43-1311.02 requires
the Department to make reasonable efforts for a joint-sibling
placement. Alternatively, they sought equitable intervention for
the same reason and because their intervention was in Ziggy’s
best interests. They attached a copy of the Department’s regu-
lations that required placement teams to give preference to
adult relatives and siblings.
The Department objected to intervention by Kristopher and
Stephanie. Regarding their daughter, it argued that she and
Ziggy had no relationship before he was removed (because
she was born after his removal) and that they had no legal
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IN RE INTEREST OF NIZIGIYIMANA R.
Cite as 295 Neb. 324
relationship solely because Ziggy’s sister had been adopted.
Regarding Kristopher and Stephanie, it argued that if a great-
grandparent and foster parent cannot intervene under this
court’s prior holdings, then distant relatives also cannot. It
argued that Kristopher and Stephanie did not have a substan-
tial relationship with Ziggy or a sufficient interest to intervene
because they had only received supervised visitations with him
for a short period when he visited his siblings. It argued that
the juvenile court was not bound by the Department’s regula-
tions but must consider a child’s best interests and that Ziggy
had bonded with his foster parents.
In May 2015, the court approved a case plan, which is not
part of the record, calling for Ziggy’s adoption. It scheduled a
permanency hearing for November and a hearing on Kristopher
and Stephanie’s motion to intervene for July. In June, they
moved to reinstate Ziggy’s visitation with their daughter. They
alleged that after they filed their complaint to intervene, the
Department immediately discontinued the siblings’ visitation.
In July, they moved to have Ziggy placed with them and for
an order permitting him to visit their daughter throughout
the proceedings.
2. Intervention Hearing
At the July intervention hearing, the court sustained the
State’s objection to Kristopher and Stephanie’s offers of proof
regarding their initial request to have Ziggy placed with them.
For their offer of proof, Stephanie stated that she was related
to Ziggy and that the Department did not provide her with a
statutory notice about a relative’s options to participate in a
child’s care and placement. The court agreed with the State
that this proof was beyond the scope of whether she and
Kristopher could intervene.
A caseworker testified that she had assisted another case-
worker to place Ziggy with foster parents when he was
removed from parental custody. She stated that to the best
of her knowledge, when Ziggy was removed, his mother did
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IN RE INTEREST OF NIZIGIYIMANA R.
Cite as 295 Neb. 324
not mention Kristopher and Stephanie as possible relatives
for placement. Similarly, she denied any knowledge that
Ziggy’s great-grandmother had identified them as a rela-
tive placement.
Kristopher and Stephanie argued that the Legislature had
implemented the FCA through statutes that required the
Department to (1) exercise due diligence to find a removed
child’s adult relatives and the parents of a sibling and (2)
provide a specified notice to these persons that explains their
options to participate in the care and placement of the child.
They argued the new statutes required the Department to make
reasonable efforts to place siblings in the same foster care or
adoption placement and that those new statutes had super-
seded this court’s decision in In re Interest of Meridian H.2
They claimed standing to intervene as Ziggy’s adult relatives
and as the adoptive parents of his sister.
3. Court’s Order
In its order, the court denied Kristopher and Stephanie’s
leave to intervene for six reasons. First, the court concluded
their kinship relationship to Ziggy was too distant to warrant
their intervention.
Second, the court implicitly concluded that the Department
had complied with its duties under these facts. It stated that the
Department’s placement policies “were applicable at the time
of the initial placement of the juvenile . . . where the juvenile
remains currently, and that the Department is under no con-
straints at the present time to effect a change in placement in
order to comply with regulations.” The court reasoned that the
Department had not placed Ziggy with a nonrelative until after
the great-grandmother and her husband had declined Ziggy’s
placement with them: “The [FCA] arguments advanced by
[Kristopher and Stephanie] are not appropriate to the pres-
ent facts.”
2
In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
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IN RE INTEREST OF NIZIGIYIMANA R.
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Third, the court agreed with the State that even if Kristopher
and Stephanie had a sufficient legal interest to intervene,
they had not sought intervention before the trial started and
had filed a complaint only after the parents’ parental rights
to Ziggy were terminated. It implicitly concluded that they
had not complied with the requirement under Neb. Rev. Stat.
§ 25-328 (Reissue 2016) to seek intervention before the
trial commenced.
Fourth, the court ruled that Kristopher and Stephanie did
not have standing to intervene as preadoptive parents. Fifth,
it determined that their daughter did not have any cognizable
rights in the proceeding under federal or state law.
Finally, the court concluded that it would be improper to
allow Kristopher and Stephanie to intervene under its equi-
table powers because Ziggy had lived with the foster parents
since October 2013 and knew no one else as parents or fam-
ily: “[I]t would not be in the best interest of the juvenile, or
any juvenile for that matter, to disrupt a two year placement[,]
particularly one that occurred in the earliest stages of the juve-
nile’s life.”
III. ASSIGNMENTS OF ERROR
Kristopher and Stephanie assign, restated, that the court
erred in (1) denying them leave to intervene and (2) excluding
evidence which showed that the Department did not give them
a statutory notice.
IV. STANDARD OF REVIEW
[1-4] We exercise jurisdiction over an appeal from an order
denying intervention even if the appellant would not have
standing to appeal from the court’s final order or judgment
on the merits.3 When reviewing questions of law, we resolve
3
See In re Interest of Enyce J. & Eternity M., 291 Neb. 965, 870 N.W.2d
413 (2015), citing Basin Elec. Power Co-op v. Little Blue N.R.D., 219
Neb. 372, 363 N.W.2d 500 (1985).
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the questions independently of the lower court’s conclusions.4
Whether a nonparty has the right to intervene is a question of
law.5 The meaning and interpretation of a statute present ques-
tions of law.6
V. ANALYSIS
1. Parties’ Contentions
Kristopher and Stephanie claim that as the parents of
Ziggy’s younger sister, they have a legal right to intervene
under Nebraska’s new statutes implementing the FCA. They
contend that these statutes give siblings a right to participate in
review hearings and to be placed together unless the placement
would be contrary to the safety or well-being of any sibling.
They argue that the court erred in implicitly relying on In re
Interest of Meridian H. to deny intervention because we held
therein only that the federal FCA did not apply and their claim
is under the newly implemented statutes.7 They also claim they
had standing to intervene as preadoptive parents under Neb.
Rev. Stat. § 43-1314 (Reissue 2016) because it requires a juve-
nile court to permit preadoptive parents to participate in review
hearings. Alternatively, they contend that the court erred in
denying them leave to intervene as a matter of equity because
Ziggy’s placement with his sibling would be in his best inter-
ests. They argue that if they cannot intervene and argue for a
joint-sibling placement, no other party will advocate for pro-
tecting these siblings’ relationship.
The State contends that § 25-328 requires a party seek-
ing to intervene to do so before a trial commences and that
Kristopher and Stephanie failed to comply with this require-
ment. Alternatively, the State contends that they lacked stand-
ing under § 43-1311.02. It contends that the federal FCA is
4
See Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).
5
In re Interest of Enyce J. & Eternity M., supra note 3.
6
Id.
7
See In re Interest of Meridian H., supra note 2.
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substantively similar to § 43-1311.02 and that in In re Interest
of Meridian H., we stated that the FCA did not establish a legal
interest that gave a sibling standing to intervene in a depen-
dency proceeding.8 The State argues that the Department’s
duties under § 43-1311.02 apply only when it has placement
authority over both siblings and that its placement decisions
cannot be held hostage to a parent’s decision to place an unad-
judicated child in a different home. It contends that interpret-
ing § 43-1311.02 to apply to unadjudicated siblings would
frustrate the juvenile code’s goal of achieving permanency for
adjudicated children. The guardian ad litem concurs, but also
points out that we have held a juvenile court has no authority
to permit an equitable intervention.
2. Juvenile Courts H ave No
Statutory Authority to Permit
Equitable Intervention
[5] The guardian ad litem correctly argues that in In re
Interest of Enyce J. & Eternity M.,9 we held a juvenile court
lacks authority to permit an equitable intervention. We did
not issue our decision in In re Interest of Enyce J. & Eternity
M. until after the juvenile court issued its order denying
Kristopher and Stephanie leave to intervene. But because of
this decision, we need not further address their argument that
the court erred in not permitting an equitable intervention.
3. Juvenile Court’s Authority
to Permit I ntervention Under
§ 25-328 Does Not Control
[6,7] When a juvenile court adjudicates a child under Neb.
Rev. Stat. § 43-247(3) (Reissue 2016), the court has exclusive
original jurisdiction over the parties listed in § 43-247(5).10
8
See id.
9
See In re Interest of Enyce J. & Eternity M., supra note 3.
10
See Neb. Rev. Stat. § 43-246.01(1)(c) (Reissue 2016).
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Section 43-247(5) defines the parties as the “parent, guard-
ian, or custodian of any juvenile described in this section.”
But because the “juvenile code contains no specific provisions
governing the rights of other persons to intervene in juvenile
proceedings,”11 we have held that the rules governing interven-
tion in civil proceedings generally serve as a court’s guidepost
in determining whether nonparties can intervene.12
[8,9] Under § 25-328, to be entitled to intervene in an action,
a nonparty must show a direct and legal interest.13 A nonparty
must lose or gain by the direct operation and legal effect of the
judgment that may be rendered in the action.14 A nonparty must
allege facts showing that he or she possesses the requisite legal
interest in the subject matter of the action15 and must be joining
the proceedings to defend his or her own rights or interests.16
An indirect, remote, or conjectural interest in the result of a
proceeding will not establish intervention as a matter of right.17
In ruling on a request for leave to intervene, a court assumes
that the nonparty’s factual allegations are true.18
[10] As noted, the State argues that under § 25-328, a
nonparty seeking to intervene as a matter of right must file a
pleading “‘before the trial commences.’”19 This is certainly
true in actions; however, we need not decide here how that
requirement should interplay with our adoption of § 25-328
11
In re Interest of Destiny S., 263 Neb. 255, 259, 639 N.W.2d 400, 405
(2002), disapproved in part, In re Interest of Enyce J. & Eternity M., supra
note 3.
12
See id.
13
See In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).
14
See id.
15
See Spear T Ranch v. Knaub, 271 Neb. 578, 713 N.W.2d 489 (2006).
16
See In re Interest of Enyce J. & Eternity M., supra note 3.
17
See id.
18
See Spear T Ranch, supra note 15.
19
See American Nat. Bank v. Medved, 281 Neb. 799, 815, 801 N.W.2d 230,
242 (2011), quoting § 25-328.
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as a guidepost for deciding intervention issues in juvenile pro-
ceedings, which are special proceedings—not actions. Where
general and special provisions of statutes are in conflict, the
general law yields to the special provision or more specific
statute.20 As we explain later, we conclude that the Legislature’s
new statutes implementing the FCA are more specific to the
intervention issue presented here and therefore control.
4. § 43-1311.02 Precludes A djudicated
Child’s Sibling From Intervening to
Ask for Joint-Sibling Placement
Before determining whether an adjudicated child’s sib-
ling can intervene in a dependency proceeding to enforce the
Department’s duties, we must determine whether §§ 43-1311.01
and 43-1311.02 impose any duties on the Department to con-
sider a placement with an unadjudicated sibling. As noted, the
State argues that the Department’s duties under § 43-1311.02
apply only when it has placement authority over both an adju-
dicated child and the child’s sibling.
(a) Department’s Duties Regarding Siblings
Are Not Limited to Siblings
Who Are Wards of State
Since 1996, a goal of the juvenile code has been to “con-
sider relatives as a preferred potential placement resource”
when a child must be removed from parental custody.21 Except
for proceedings under the Nebraska Indian Child Welfare Act,
the term “relative” includes a “brother, sister, . . . stepbrother,
[and] stepsister.”22 Accordingly, since 1998, the Department’s
regulations have required its placement teams to give prefer-
ence to placing a child with an appropriate adult relative over
20
Schaffer v. Cass County, 290 Neb. 892, 863 N.W.2d 143 (2015).
21
See 1996 Neb. Laws, L.B. 1001, § 2 (codified at Neb. Rev. Stat.
§ 43-246(5) (Reissue 2016)).
22
See Neb. Rev. Stat. § 43-245(21) (Reissue 2016).
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nonrelatives and to give preference to placing siblings together
unless the placement would be detrimental to one or more
of them.23
But in In re Interest of Meridian H., 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.24 We further con-
cluded that the FCA does not establish any legal interest on the
part of an unadjudicated sibling which could be affected by a
juvenile court’s placement order or serve as the basis for stand-
ing. In reaching that conclusion, we specifically noted that the
FCA “does not require notice to relatives who are minors or to
the parents or custodians of such minors.”25
Nebraska’s new statutes implementing the FCA, however,
did not apply to our analysis in In re Interest of Meridian
H. We believe that the State misreads these new statutes in
arguing that the Department’s duties apply only when it has
placement authority over both an adjudicated child and the
child’s sibling.
In 2011, through L.B. 177,26 the Legislature clarified and
heightened the Department’s duties to implement joint-sibling
placements, sibling visitations, or ongoing contacts. The
Legislature amended statutes in the Nebraska Juvenile Code
and amended or enacted statutes in the Foster Care Review
Act to comply with specific requirements of the FCA.27 As
relevant here, L.B. 177 was intended to comply with federal
requirements that states use “due diligence to notify adult
relatives when a child is removed from parental custody[, and
23
See 390 Neb. Admin. Code, ch. 6, § 002.04 (1998).
24
See In re Interest of Meridian H., supra note 2.
25
Id. at 481, 798 N.W.2d at 108.
26
2011 Neb. Laws, L.B. 177 (effective Aug. 27, 2011).
27
See Introducer’s Statement of Intent, L.B. 177, Health and Human Services
Committee, 102d Leg., 1st Sess. (Feb. 16, 2011).
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make] efforts to place siblings together, or provide for sibling
time if placement together is not possible.”28
One statute that L.B. 177 amended was Neb. Rev. Stat.
§ 43-905 (Reissue 2008), which deals with the Department’s
responsibility to use care and diligence in finding a suit-
able home for a child committed to its legal custody. The
Department must now “make reasonable efforts to accomplish
joint-sibling placement or sibling visitation or ongoing interac-
tion between siblings as provided in section 43-1311.02.”29
Sections 43-1311.01 and 43-1311.02 are new statutes in
the Foster Care Review Act created by L.B. 177.30 Section
43-1311.01 imposes duties on the Department to identify and
locate a child’s adult relatives and notify them that the child
has been removed from parental custody or that the child’s
parent has voluntarily placed the child with the Department.
As originally enacted, within 30 days of the triggering event,
the Department must locate and notify “any noncustodial par-
ent[,] 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 history of fam-
ily or domestic violence makes notification inappropriate.”31
The State must notify these persons in writing of any options
they have to participate in the child’s care and placement; the
requirements for serving as a foster parent or other care pro-
vider; the training, services, and support available to children
receiving such care; and information about guardianship assist
ance payments.32
In 2014, however, Congress amended 42 U.S.C. § 671,33
which sets out the requirements for federally approved foster
28
Id. See, also, 42 U.S.C. § 671 (2012 & Supp. II 2014).
29
See L.B. 177, § 2 (codified at § 43-905(1) (Reissue 2016)).
30
See L.B. 177, §§ 6 and 7.
31
See § 43-1311.01(1) (Cum. Supp. 2014).
32
Id.
33
See Pub. L. 113-183, § 209(a)(1), 128 Stat. 1941.
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care and adoption plans in order for states to receive specified
federal funds.34 As a result, in 2015, the Legislature amended
§ 43-1311.01 through L.B. 29635 to comply with Congress’
newest requirements.36 The 2015 amendment extended the
Department’s duty to notify specified persons of a child’s
removal or voluntary placement with the Department to
include “all parents who have legal custody of a sibling of
the child.”37
The newly created § 43-1311.02(1)(a) requires the
Department to make reasonable efforts “to place a child and
the child’s siblings in the same foster care placement or adop-
tive placement, unless such placement is contrary to the safety
or well-being of any of the siblings. This requirement applies
even if the custody order of the siblings are made at sepa-
rate times.”
Under § 43-1311.02(1)(b), if the siblings are not placed
together, the Department must provide the siblings and the
court with the reasons for its conclusion that a joint placement
would be contrary to the safety or well-being of one of them.
Under § 43-1311.02(2), if the Department does not make
a joint-sibling placement, it must make reasonable efforts to
provide for frequent sibling visitation or ongoing interaction,
unless it “provides the siblings and the court with reasons why
such sibling visitation or ongoing interaction would be contrary
to the safety or well-being of any of the siblings.”
Finally, under § 43-1311.02(5), unless a court has suspended
or terminated sibling joint-placement or contact, then even
if the parents’ parental rights are terminated, the Department
must make reasonable efforts to implement a joint-sibling
placement. Alternatively, the Department must take specific
34
See 45 C.F.R. § 1356.20(a) (2015).
35
See 2015 Neb. Laws, L.B. 296, § 1 (operative July 1, 2015).
36
See Introducer’s Statement of Intent, L.B. 296, Health and Human Services
Committee, 104th Leg., 1st Sess. (Feb. 19, 2015).
37
See § 43-1311.01(1) (Reissue 2016).
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steps to facilitate sibling visitation or ongoing interaction
between an adjudicated child and the child’s siblings when the
child is adopted or enters into a permanent placement.38
L.B. 177 defined “siblings” in the Foster Care Review Act
to mean “biological siblings and legal siblings, including, but
not limited to, half-siblings and stepsiblings.”39 It also amended
the definition of a “family unit” to clarify that “for purposes of
potential sibling placement, the child’s family unit shall also
include the child’s siblings even if the child has not resided
with such siblings prior to placement in foster care.”40 In 2015,
to comply with the new FCA requirements,41 the Legislature
amended § 43-1311.01 to specify that the term “sibling” means
an individual considered to be a sibling but for a termination
of parental rights or other disruption of parental rights such as
the death of a parent.42
In short, under §§ 43-1311.01 and 43-1311.02, the
Department’s duties to make reasonable efforts to implement a
joint-sibling placement do not depend upon the continued exis-
tence of the parent-child relationship with each of the siblings.
The Department’s duties exist even if the siblings’ custody
orders were entered at separate times, even if a court has ter-
minated a parent’s relationship with each child, and even if the
siblings have not previously lived together.
Additionally, the Foster Care Review Act defines “fos-
ter care placements” to include placements made by a par-
ent.43 So the Department’s duty under § 43-1131.02(1)(a) to
make reasonable efforts to place an adjudicated child and the
child’s siblings in the “same foster care placement or adoptive
38
See § 43-1311.02(5).
39
L.B. 177, § 3 (codified at Neb. Rev. Stat. § 43-1301(10) (Reissue 2016)).
40
Id. (codified at § 43-1301(7)).
41
See Introducer’s Statement of Intent, L.B. 296, supra note 36.
42
See L.B. 296, § 1.
43
See § 43-1301(4).
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p lacement” does not show that the Department’s duties apply
only when both the child and the sibling are wards of the state.
Any doubt that the Department’s duties extend to joint-sibling
placements with unadjudicated siblings was put to rest by the
Legislature’s 2015 amendment to § 43-1311.01(1).
As stated, before 2015, the Department’s notification duties
under § 43-1311.01(1) were limited to a child’s noncustodial
parent, grandparents, and specified adult relatives. Since July
2015, however, that statute also requires the Department to
notify “all parents who have legal custody of a sibling” of a
child’s removal from parental custody and of their option to
participate in the care and placement of the child.44
The Legislature did not limit the amended notice require-
ment to those parents who have legal custody of a removed
child’s sibling through a juvenile court’s order. Instead, the
“legal custody” requirement includes those parents who have
legal custody of a child’s full sibling under an adoption decree
and those parents whose parental rights to a half sibling or
stepsibling are intact.45 This interpretation is consistent with
the Legislature’s definition of a sibling to include half siblings
and stepsiblings. Nor has the Legislature treated an adoption as
severing the sibling relationship for the purpose of triggering
the Department’s duties under § 43-1311.02. As noted, even if
an adjudicated child is adopted, the Department must take spe-
cific steps to facilitate sibling visitation or ongoing interaction
“between the child and the child’s siblings.”46
Thus, the 2015 amendment created notification duties
to the parents of an unadjudicated sibling for whom the
Department does not serve as legal custodian. The only rea-
sons to require the Department to notify the parents of an
unadjudicated sibling is to ensure that they are aware that the
child has been removed from parental custody and to ensure
44
See § 43-1311.01(1) (emphasis supplied).
45
See id. and § 43-1301(10).
46
§ 43-1311.02(5).
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that the Department makes an effort to place the siblings
together or to provide for sibling time if placement together
is not possible.
[11] Reading §§ 43-1311.01 and 43-1311.02 harmoniously,
as we must,47 we conclude that under Nebraska’s implement-
ing statutes, the Department’s duties regarding siblings do
not depend on whether both siblings are adjudicated under
§ 43-247 or whether the Department has placement author-
ity for both siblings. Instead, the Legislature intended for the
Department to develop and maintain an adjudicated child’s
sibling relationships in a variety of circumstances.
(b) Amendments Do Not Permit
Siblings to Intervene
[12] Despite the Legislature’s creation of new duties for the
Department to preserve sibling relationships, it has not cre-
ated a private right of action for an adjudicated child’s sibling
to enforce the Department’s duties under §§ 43-1311.01 and
43-1311.02. Instead, § 43-1311.02(3) specifically limits the
right to enforce these duties to parties: “Parties to the case
may file a motion for joint-sibling placement, sibling visita-
tion, or ongoing interaction between siblings.” Of course, the
Department’s duty to make reasonable efforts for a joint-
sibling placement, sibling visitation, or ongoing interaction
between siblings exists even if no party moves for that place-
ment, visitation, or interaction. So we read § 43-1311.02(3) as
a statutory remedy to enforce the Department’s duties. And that
remedy is limited to “parties.”
The juvenile code defines a party to a juvenile proceed-
ing in two different statutes. Section 43-245(19) provides that
“[p]arties means the juvenile as described in section 43-247
and his or her parent, guardian, or custodian.” As noted,
when a child is adjudicated under § 43-247(3), a juvenile
court has exclusive original jurisdiction over a party listed in
47
See, e.g., Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016).
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§ 43-247(5),48 which also gives the court jurisdiction over the
“parent, guardian, or custodian of any juvenile described in
this section.”
[13] Under the Foster Care Review Act, the Legislature has
not enacted a definition of “party” that shows a court should
consider an adjudicated child’s sibling to be a party for the
purpose of moving for a joint-sibling placement, sibling visita-
tion, or ongoing sibling interaction.49 Nor does § 43-1312.02
include an intervention provision that would permit a nonparty
to seek a joint-sibling placement. Thus, we conclude that
the only persons who can enforce the Department’s duties
under § 43-1312.02 are a guardian ad litem, on behalf of an
adjudicated child, or an adjudicated child’s parent, guardian,
or custodian.
We recognize that under § 25-328, we have previously held
a grandparent has a limited right to intervene in a dependency
proceeding involving his or her grandchild. In In re Interest of
Kayle C. & Kylee C.,50 we reasoned, in part, that § 43-247(5)
identified the necessary parties to a juvenile proceeding under
§ 43-247, but determined that the list was not exclusive. Thus,
because grandparents can otherwise show a substantial inter-
est in the proceeding, they can intervene to be heard on their
fitness to accept placement of a grandchild or to act as the
child’s legal custodian.
However, that reasoning does not apply here because this
intervention issue is not governed by § 25-328. Where general
and special provisions of statutes are in conflict, the general
law yields to the special provision or more specific statute.51
We conclude that § 43-1311.02(3) controls here because it spe-
cifically provides that “parties” may move for a “joint-sibling
48
See § 43-246.01(1)(c). See, also, § 43-245(19).
49
See § 43-1301.
50
In re Interest of Kayle C. & Kylee C., 253 Neb. 685, 574 N.W.2d 473
(1998).
51
Schaffer, supra note 20.
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placement, sibling visitation, or ongoing interaction between
the siblings.”
[14-16] A court gives statutory language its plain and ordi-
nary meaning and will not look beyond the statute to determine
the legislative intent when the words are plain, direct, and
unambiguous.52 Obviously, if the Legislature had intended to
permit a nonparty to intervene or to include a sibling as a party,
it could have enacted such provisions. Moreover, when statutes
dealing with the same subject matter do not show a contrary
legislative intent, a court interprets them so that they are con-
sistent, harmonious, and sensible.53 Sections 43-1311.01 and
43-1311.02 deal with the Department’s notification and place-
ment duties for children who are wards of the state under the
juvenile code. Interpreting these statutes so that they are con-
sistent with the juvenile code means that the Legislature’s defi-
nition of a party in the juvenile code also applies to the term
“party” in § 43-1311.02(3). Accordingly, because Kristopher
and Stephanie’s daughter was not a party to the proceeding,
§ 43-1311.02(3) precluded them from intervening on her behalf
to ask for a joint-sibling placement.
5. Parent of A djudicated Child’s Sibling
Does Not H ave Automatic Status
as P readoptive Parent
We reject Kristopher and Stephanie’s contention that they
had standing to intervene under § 43-1314 as Ziggy’s preadop-
tive parents. That statute deals with the right to notice and to
participate in a court review or hearing in juvenile proceed-
ings. Section 43-1314(2) requires a juvenile court to give
notice of review proceedings to specified persons, including
a child’s preadoptive parent, so that they may participate in
the proceeding. But it specifically provides that the notice
52
See Mutual of Omaha Bank v. Murante, 285 Neb. 747, 829 N.W.2d 676
(2013).
53
See Cisneros, supra note 47.
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requirement does not mean that these participants are necessary
parties. Kristopher and Stephanie appear to argue that because
the Department must consider joint-sibling placement, sibling
visitation, or ongoing interaction between Ziggy and his sister,
including adoption, they have standing to intervene as Ziggy’s
preadoptive parents.
Neither the Nebraska Juvenile Code, the Foster Care Review
Act, nor the Department’s regulations define the term “preadop-
tive” parent or “preadoptive” placement. However, Neb. Rev.
Stat. § 43-1312(2) (Reissue 2016) governs the Department’s
duties when its investigation of a child’s circumstances reveals
that a juvenile court is unlikely to return a child to parental
custody. In that event, the Department
shall recommend termination of parental rights and refer-
ral for adoption, guardianship, placement with a relative,
or, as a last resort, and only in the case of a child who has
attained sixteen years of age, another planned permanent
living arrangement. If the child is removed from his or
her home, the [D]epartment shall make reasonable efforts
to accomplish joint-sibling placement or sibling visitation
or ongoing interaction between the siblings as provided in
section 43-1311.02.54
Additionally, § 43-1312(3) requires a juvenile court to
conduct a permanency hearing for a child in foster care no
later than 12 months from the date the child entered foster
care and annually thereafter. At a permanency hearing, the
court must determine whether the permanency plan is appro-
priate and, when applicable, determine whether the child will
be returned to the parent, referred to the State for termina-
tion of parental rights, placed for adoption, or referred for
a guardianship.55
[17] The Department’s duties under § 43-1312 are con-
sistent with understanding that the term preadoptive parent
54
§ 43-1312(2).
55
See § 43-1312(3).
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means the following: A preadoptive parent in a dependency
proceeding is a foster parent whom a juvenile court has
approved for a future adoption because a child’s parent has
surrendered his or her parental rights, a court-approved per-
manency plan does not call for the child’s reunification with
his or her parent, or the parents’ parental rights have been or
will be terminated.56
Kristopher and Stephanie did not have the status of pre-
adoptive parents because the juvenile court had not placed
Ziggy in their care for a future adoption. We agree that the
Department had a duty to make reasonable efforts to accom-
plish a joint-sibling placement with their daughter. But the
Legislature has explicitly limited the remedy of enforcing that
duty to the parties, and they were not parties to the depend
ency proceeding.
VI. CONCLUSION
We conclude that the court correctly denied Kristopher and
Stephanie leave to intervene in this dependency proceeding.
We agree that Nebraska’s statutes implementing the FCA cre-
ate new duties for the Department to make reasonable efforts
for a joint-sibling placement even if an adjudicated child’s
sibling is not a ward of the state and has not previously lived
with the adjudicated child. However, the creation of these new
duties upon the Department does not bestow new rights upon
nonparties. Because neither Kristopher and Stephanie nor their
daughter are parties to the proceeding, they have no right to
intervene to enforce the Department’s duties.
A ffirmed.
56
See 1 Joan Heifetz Hollinger et al., Adoption Law and Practice § 3.02[2]
(2016).