July 01, 2016

As Foster Parents, Grandparents Lack Standing to Appeal Placement Decisions

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re Jackson E., 293 Neb. 84, 875 N.W.2d 863 (2016).

Grandmother and her husband, who acted as foster parents and intervenors in her grandson’s dependency case, lacked standing to appeal placement decision. The court found they were not custodians or guardians as defined by state statute and therefore lacked standing.

The child welfare agency took temporary custody of the child after the court found him dependent. The child was placed in foster care with the maternal grandmother and her husband for two and one-half years with a permanency goal of reunification. The child was then removed from the maternal grandmother and her husband and placed with other foster parents. The grandparents filed a motion to order the agency to return the child to their care. They also filed a motion to intervene. 

At the first of two hearings, the court granted the grandparents’ motion to intervene and changed the permanency goal to adoption. At the second hearing, after three days of testimony, the court found continued placement with the new foster parents was in the child’s best interest. Grandmother and her husband filed a motion for a new trial or to alter or amend the order denying their motion for placement.  

The Nebraska Supreme Court determined it lacked jurisdiction because grandmother and her husband did not have standing to appeal. Standing requires some legal or equitable right, title, or interest in the subject matter – some real interest in the cause of action. To claim standing the grandparents would need to show their claim was premised in their own legal rights. 

The grandmother and her husband, as foster parents, had a role in the proceedings. However, that role did not confer a right, title, or interest in the subject matter to give them standing to appeal. Their status as intervenors and her relationship as grandmother did not change standing.  The court previously ruled the right to intervene in dependency hearings of minor grandchildren dids not confer any special entitlements or priorities regarding temporary custody, placement, or other issues before the court. That right to intervene simply allowed the grandparents to receive notice and have the opportunity to be heard because the hearing results could significantly affect their relationship with their grandchildren. 

In Nebraska the right of appeal in a juvenile case is purely statutory. That right extends to the child’s parent, custodian, or guardian but not to foster parents or grandparents. The statute defines custodian or guardian as an individual to whose care the child has been granted. The court previously held that a custodian is the person or entity given custody of a child by court order and that placement of the child with a person alone does not make them custodians. Therefore, a child’s foster parent is not a custodian and does not have standing to appeal. 

A statutory revision broadened the definition of custodian or guardian to individuals having the care of a child by other means than a court order, including a person empowered by parental authority to act as custodian. That person would have the right to appeal. However, that provision did not provide a foster parent or grandparent standing to appeal because the intention of foster care is a short-term placement.