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In re Sarah H.

Court of Appeals of Nebraska

October 22, 2013

In re Interest of Sarah H., a child under 18 years of age.
Alicia F., appellant, State of Nebraska, appellee, and Brian H., intervenor-appellee.

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[Copyrighted Material Omitted]

Page 391

Appeal from the Separate Juvenile Court of Lancaster County: LINDA S. PORTER, Judge. Affirmed.

Joseph E. Dalton, of Dalton Law Office, P.C., L.L.O., for appellant.

Michael A. Greenlee, of Law Office of Michael Greenlee, for intervenor-appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

Syllabus by the Court

1. Juvenile Courts: Judgments: Appeal and Error. Cases arising under the Nebraska Juvenile Code, Neb.Rev.Stat. §§ 43-245 through 43-2,129 (Reissue 2008 & Cum.Supp.2012), are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the trial court's findings. However, when the evidence is in conflict, the appellate court will consider and give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.

2. Juvenile Courts: Appeal and Error. In reviewing questions of law arising under the Nebraska Juvenile Code, an appellate court reaches conclusions independent of the lower court's rulings.

3. Juvenile Courts: Jurisdiction: Words and Phrases. The Nebraska Juvenile Code defines " parties" as the juvenile over which the juvenile court has jurisdiction under Neb.Rev.Stat. § 43-247 (Reissue 2008) and his or her parent, guardian, or custodian.

4. Interventions: Pleadings. Any person who has or claims an interest in the matter in litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in any of the courts of the State of Nebraska, may become a party to an action between any other persons or corporations, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendants in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the action, and before the trial commences.

5. Interventions. Neb.Rev.Stat. § 25-328 (Reissue 2008) provides a right to intervene before trial has commenced.

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6. Interventions: Time. A right to intervene should be asserted within a reasonable time, and the applicant must be diligent and not guilty of unreasonable delay after knowledge of the suit.

[21 Neb.App. 442] 7. Judgments: Interventions: Trial: Time. An intervenor may not unreasonably delay the original parties, unduly retard the trial of the case, or render nugatory a judgment without a compelling cause, and persons who otherwise would be granted leave to intervene are denied consideration where they sit by and allow litigation to proceed without timely requesting leave to enter the case.

8. Interventions. The language of Neb.Rev.Stat. § 25-328 (Reissue 2008) does not absolutely bar an otherwise entitled applicant from seeking to intervene after trial has commenced.

9. Interventions: Juvenile Courts. Intervention may be proper after the adjudication in a juvenile proceeding.

10. Paternity: Presumptions. In Nebraska, a child born during wedlock is presumed to be the legitimate offspring of the married parties.

11. Paternity: Presumptions: Proof. The presumption of legitimacy is not an irrebuttable presumption, and it may be rebutted by clear, satisfactory, and convincing evidence.

12. Paternity: Presumptions: Proof. Blood tests may be used to rebut the presumption that the husband is the biological father of children born during wedlock.

13. Divorce: Paternity: Child Support: Res Judicata. When a dissolution decree includes an order of child support, the issue of paternity is considered adjudicated and the issue of paternity cannot be relitigated between the parties because of the doctrine of res judicata, absent certain limited circumstances.

14. Paternity: Child Support. Neb.Rev.Stat. § 43-1412.01 (Reissue 2008) provides a means to set aside an otherwise final legal determination of paternity, including an obligation to pay child support.

15. Paternity: Evidence: Res Judicata. Neb.Rev.Stat. § 43-1412.01 (Reissue 2008) overrides res judicata principles and allows, in limited circumstances, an adjudicated father to disestablish a prior, final paternity determination based on genetic evidence that the adjudicated father is not the biological father.

16. Parent and Child. In the absence of a biological or adoptive relationship between a husband and his wife's child, certain rights and responsibilities may arise where a husband elects to stand in loco parentis to his wife's child.

17. Parent and Child: Intent: Proof: Words and Phrases. A person standing in loco parentis to a child is one who has put himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent. The assumption of the relation is a question of intention, which may be shown by the acts and declarations of the person alleged to stand in that relation.

18. Parent and Child. It is a husband's desire to remain in an in loco parentis relationship with his wife's child that gives rise to the rights and corresponding responsibilities usually reserved for natural or adoptive parents.

19. Parent and Child. Termination of the in loco parentis relationship also terminates the corresponding rights and responsibilities afforded thereby.

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Irwin, Judge.

[21 Neb.App. 443] I. ...

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