In re Interest of Chloe P. ( 2013 )

Decisions of the Nebraska Court of Appeals
456 21 NEBRASKA APPELLATE REPORTS
In re I nterest of Chloe P., a child
under 18 years of age.
State of Nebraska, appellee, v. Susan M.,
appellant, and Joseph P., appellee.
___ N.W.2d ___
Filed November 5, 2013. No. A-12-827.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tations or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
3. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with due process is a question of law.
4. Juvenile Courts: Parental Rights: Final Orders. An ex parte temporary cus-
tody order keeping a child’s custody from his or her parent for a short period of
time is not a final order.
5. Juvenile Courts: Final Orders: Appeal and Error. Unlike an ex parte tempo-
rary order, a detention order entered after a detention hearing is a final, appeal-
able order.
6. Juvenile Courts: Jurisdiction: Proof. The juvenile court shall have jurisdiction
over a juvenile if the State proves that the juvenile is within the meaning of Neb.
Rev. Stat. § 43-247(3)(a) (Reissue 2008) by a preponderance of the evidence.
7. Juvenile Courts: Proof. While the State need not prove that the juvenile has
suffered physical harm to find the juvenile to be within the meaning of Neb. Rev.
Stat. § 43-247(3)(a) (Reissue 2008), the State must establish that without inter-
vention, there is a definite risk of future harm.
8. ____: ____. In order to establish a definite risk of future harm, there must be an
evidentiary nexus between the allegations of the petition and a definite risk of
future harm.
9. Rules of the Supreme Court: Appeal and Error. Where the brief of appellee
presents a cross-appeal, it shall be noted on the cover of the brief and it shall be
set forth in a separate division of the brief. This division shall be headed “Brief
on Cross-Appeal” and shall be prepared in the same manner and under the same
rules as the brief of appellant.
10. ____: ____. Neb. Ct. R. App. P. § 2-101(E) (rev. 2010) instructs an appellee on
how to assert a cross-appeal. It states that the proper filing of an appeal shall vest
in an appellee the right to a cross-appeal against any other party to the appeal.
The cross-appeal need only be asserted in the appellee’s brief as provided by
Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2012).
Appeal from the County Court for Madison County: Ross A.
Stoffer, Judge. Affirmed.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF CHLOE P. 457
Cite as 21 Neb. App. 456Chelsey R. Hartner, Deputy Madison County Public
Defender, for appellant.
Gail Collins, Deputy Madison County Attorney, for appellee
State of Nebraska.
Patrick P. Carney, of Carney Law, P.C., for appellee
Joseph P.
R.D. Stafford, of Brogan & Stafford, P.C., guardian ad litem.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
Riedmann, Judge.
I. INTRODUCTION
Chloe P. was removed from the care and custody of her
biological parents, Susan M. and Joseph P., and was later
adjudicated as being within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2008). Susan appeals, and Joseph
attempts to cross-appeal. We affirm Chloe’s continued place-
ment with the State and her adjudication, because we conclude
that the State proved by clear and convincing evidence that a
definite risk existed that Susan and Joseph would not provide
for Chloe’s medical needs. We also conclude that Joseph did
not properly cross-appeal; therefore, we grant him no affirma-
tive relief and consider his arguments only to the extent that
they address an error assigned by Susan.
II. BACKGROUND
Chloe was born in January 2012 at a hospital in Norfolk.
She soon developed electrolyte disturbances, hypoglycemia,
and feeding issues. Her feeding issues were significant enough
that she required the assistance of a nasogastric feeding tube to
complete her feedings. Her overall medical condition required
her temporary transfer to a neonatal intensive care unit at a
children’s hospital in Omaha. Chloe was hospitalized for 20
days before being discharged.
Chloe’s doctor, Erin Pierce, placed her on a strict feed-
ing schedule because she was at risk for failure to thrive. Dr.
Pierce ordered a 48-hour monitoring period of Chloe prior
Decisions of the Nebraska Court of Appeals
458 21 NEBRASKA APPELLATE REPORTS
to her discharge to verify that Susan and Joseph were able
to meet Chloe’s needs. During this time, Susan and Joseph
were to have total responsibility for taking care of Chloe. On
two occasions during the 48-hour monitoring period, Chloe’s
nurse, Amanda Holcomb, had to wake Susan to complete
Chloe’s feedings. Holcomb did not chart these prompts, but
reported them to a Department of Health and Human Services
(DHHS) child protection worker, Traci Fox. Unaware of the
prompts, Dr. Pierce determined Susan successfully completed
the 48-hour monitoring period and discharged Chloe to her
care on January 30, 2012.
On the day of discharge, the State filed a juvenile petition
and motion for temporary care and custody of Chloe. In its
petition, the State alleged that Chloe had feeding problems and
that her parents lacked the skills to provide for her safety and
well-being. The State further alleged, among other things, that
the parents had been convicted in 2008 and 2009 for abuse to
siblings of Chloe and that they subsequently relinquished their
parental rights to those children. In her affidavit in support of
the motion for temporary custody, the prosecutor erroneously
alleged that Chloe had to be “life-flighted” to the children’s
hospital and that her feeding tube was not removed until
January 29, 2012. In reality, Chloe was transported to the chil-
dren’s hospital by vehicle and her feeding tube was removed
on January 27.
The county court issued an ex parte order authorizing
DHHS to obtain temporary custody of Chloe and sched-
uled a placement hearing for February 21, 2012. As a result,
DHHS removed Chloe from Susan’s and Joseph’s custody on
January 30.
All parties appeared on February 21, 2012, at what appears
to have been a combined placement hearing and first hear-
ing on the State’s adjudication petition. Susan and Joseph
confirmed that they understood the State’s allegations and the
potential ramifications if those allegations were proved. Each
parent denied the allegations. The State then requested that
Chloe temporarily remain in the custody of DHHS. Neither
Joseph nor the guardian ad litem had any objection to that
placement. Susan, however, requested that the child be placed
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF CHLOE P. 459
Cite as 21 Neb. App. 456with her. Following that request, Susan’s counsel stated, “I’m
not going to offer any evidence to support that.” The county
court took judicial notice of the State’s affidavit that had been
filed in support of its initial motion for temporary custody.
Based on that evidence, the court found that reasonable efforts
had been made to prevent or eliminate the need for removal
and that Chloe required out-of-home placement.
Susan subsequently filed a motion, and then an amended
motion, seeking the return of legal and physical custody of
Chloe. The court determined that the adjudication and motion
for return of legal and physical custody would be heard at
the same time due to scheduling and the commonality of
the issues.
In May and June 2012, the county court received evidence
on the State’s adjudication petition and Susan’s motion for
return of legal and physical custody. Susan stated a continu-
ing objection to the court’s refusal to hear her motion prior to
receiving evidence on the State’s petition. The county court
overruled the objection, noting that if the evidence supported
Susan’s motion for the return of legal and physical custody of
Chloe, the same evidence would support a denial of adjudicat-
ing Chloe.
III. TRIAL TESTIMONY
1. Background Testimony
As a backdrop for the current adjudication petition, the
State adduced a substantial amount of evidence concerning
Susan’s and Joseph’s parenting history. Much of the testimony
addressed the State’s involvement with Susan and her two
older children, beginning in September 2009 when they were
living in a tent. At that time, the children were approximately 3
years old and 6 months old. Both children were removed from
Susan’s care the following month. A family support worker
who was assigned to the case from October 2009 through
March 2011 testified that during supervised visitation, she had
numerous safety and supervision concerns for the children.
The service coordinator for the case testified that during her
involvement, Susan and Joseph displayed a continual inability
to feed the children properly, giving the older child coffee and
Decisions of the Nebraska Court of Appeals
460 21 NEBRASKA APPELLATE REPORTS
caffeinated soft drinks, despite his attention deficit disorder,
and giving the younger child dairy products, despite her lactose
intolerance. She further testified that the relationship between
Susan and Joseph was volatile, resulting in a charge of third
degree assault against Joseph and the issuance of a protection
order against him.
According to the caseworkers, the children were returned to
Susan’s care for a short period of time in November 2010, but
a month later, the State filed a motion to terminate the parental
rights of Susan and Joseph. They voluntarily relinquished their
parental rights in April 2011.
By way of further background, Dr. Mark Hannappel testi-
fied, over objection, that he performed psychological evalua­
tions of both Susan and Joseph in July 2010. He diagnosed
Joseph with a mood disorder and mild mental retardation. Dr.
Hannappel testified that he thought Joseph had limited ability
to become an adequate parent. He stated that Joseph’s ability
to parent could change if he showed interest and the motiva-
tion to alter the habitual patterns in his thinking and behavior.
However, Dr. Hannappel testified that he would have serious
concerns for the safety of a child in Joseph’s care if Joseph did
not receive therapy.
Dr. Hannappel stated that Susan had adjustment disorder,
anxiety, and dependent personality features. His impression
was that Susan had limited potential to change, and he recom-
mended intensive services until she demonstrated the potential
to adequately care for her children. He opined that Susan did
not appear receptive to help. Although he felt she had the
capacity to learn, her personality features interfered with her
ability to incorporate information into the structure of her life
and her children’s lives. Dr. Hannappel testified that if Susan
had not increased her understanding of childhood development,
that would show she did not have the motivation to change
her circumstances and would indicate that children in her care
were at risk.
2. Testimony as to Chloe
The trial testimony reveals that about 6 months after relin-
quishing her parental rights to her two older children, Susan
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF CHLOE P. 461
Cite as 21 Neb. App. 456sought prenatal assistance from “WIC,” a supplemental food
program, during her pregnancy with Chloe. A nurse who had
worked at the “WIC” office testified that she counseled Susan
to stop smoking, because smoking would result in a low birth
weight. Susan responded that she would continue to smoke so
that she would not need to “push out” a larger baby. The nurse
suggested Susan become involved in the program “Operation
Great Start,” which helps educate new parents and provide
them with baby supplies. Susan declined, stating that although
she did not have baby supplies at the time, if need be, “she
would steal them.”
Dr. Pierce testified that shortly after birth, Chloe displayed
electrolyte disturbances, hypoglycemia, and feeding issues.
To address the feeding issues, she placed Chloe on a feeding
schedule in which Chloe was to consume 60 cubic centimeters
of formula within 30 minutes, every 3 hours. The remaining
formula was to be gavaged through the nasogastric tube.
Several nurses and social workers from the hospital in
Norfolk testified to concerns they had, based upon Susan’s
and Joseph’s actions and comments while Chloe was hospi-
talized. In addition to her statement that Susan needed to be
prompted to feed Chloe during the 48-hour monitoring period,
Holcomb testified that both parents had difficulty following
Chloe’s feeding schedule. Holcomb recalled that Susan dis-
missed Chloe’s inability to complete feeding in 30 minutes
by stating that Chloe was a “slow eater” and that she just
needed some extra time. Holcomb also testified that Joseph
needed substantial encouragement to complete Chloe’s feed-
ings and that he would frequently become distracted by car-
toons on television.
Several other medical professionals testified that Susan
made concerning remarks about Chloe’s feeding schedule.
Susan commented that Chloe liked to “snack” in the after-
noon, which showed an ignorance to the importance of Chloe’s
receiving each feeding properly; Susan repeatedly said that she
did not need to burp Chloe because of the type of formula she
was using; and Susan disclosed that she would not use sterile
water for Chloe’s bottles at home.
Decisions of the Nebraska Court of Appeals
462 21 NEBRASKA APPELLATE REPORTS
Several nurses testified that Susan was not able to keep
herself or the room clean. On one occasion, a cockroach was
found in the hospital room. The cockroach was believed to
have been brought in with Susan’s belongings. Nurses also
testified that Susan allowed registered sex offenders in Chloe’s
hospital room and that she expressed no concern in having
Chloe exposed to them. One of these offenders had been living
with Susan and Joseph prior to Chloe’s birth and was found at
their home on several occasions afterward.
The child protection worker, Fox, testified that prior to dis-
charge, she met with both Susan and Joseph to discuss their
prior parental rights relinquishments and their plans to care for
Chloe. Fox testified that when she discussed Chloe’s medical
condition with Susan, Susan complained about several of the
medical recommendations. In particular, Susan stated that the
hospital’s desire for Chloe to eat every 3 hours seemed unrea-
sonable and that she thought the hospital was requiring Chloe
to eat too much. This concerned Fox because she was afraid
Susan would not follow the doctor’s orders.
Although Fox believed an adjudication was proper, she
testified that she was aware of alternate arrangements being
planned in case Chloe stayed at home. Had that happened,
Chloe would have received the services of a family support
worker in the home twice per day, 5 days per week, and from
a home health nurse twice a week. Fox testified that she had
concerns about sending Chloe home, even with those services,
because they were insufficient to ensure Chloe consistently
received each feeding. Fox believed Susan would not fol-
low the feeding schedule because she did not demonstrate
that she understood its importance and failed to follow it in
the hospital.
Fox testified that she removed Chloe from Susan’s and
Joseph’s custody in January 2012. She stated that the night
she removed Chloe, Susan and Joseph had only a partial can
of formula remaining. They said that they would not have
money to buy more formula until Joseph received his Social
Security check the next day at midnight. Fox noted that the
amount of remaining formula was insufficient to feed Chloe
until that time.
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF CHLOE P. 463
Cite as 21 Neb. App. 456At the close of the State’s evidence, Susan again objected
to the court’s failure to hear her motion for return of legal and
physical custody before receiving evidence on the State’s peti-
tion for adjudication. The county court overruled her objection,
stating it would treat her motion as a defense to the petition
and would not hold a separate hearing on it.
In August 2012, the trial court issued an order finding Chloe
to be a juvenile within the meaning of § 43-247(3)(a). The
trial court determined that Chloe faced a risk of not receiving
feedings that were necessary for her development. The court
determined that this constituted a definite risk of future harm.
The trial court further found that Susan’s actions while learning
to care for Chloe, combined with her history of inadequate par-
enting, proved by a preponderance of the evidence that Chloe
was a juvenile within the meaning of § 43-247(3)(a).
This appeal followed.
IV. ASSIGNMENTS OF ERROR
On appeal, Susan argues that the trial court erred in granting
the State’s motion for temporary custody, in failing to hear her
motion for the return of legal and physical custody before the
adjudication hearing, and in adjudicating Chloe as a juvenile
within the meaning of § 43-247(3)(a). As noted above, Joseph’s
cross-appeal does not comport with the Nebraska court rules of
appellate practice. Because Joseph’s assigned error regarding
the court’s adjudication of Chloe under § 43-247(3)(a) overlaps
with that of Susan’s, we will consider his argument as support
for Susan’s assigned error, but disregard his remaining assign-
ment of error.
V. STANDARD OF REVIEW
[1-3] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. In re Interest of Dustin S., 276 Neb.
635, 756 N.W.2d 277 (2008). To the extent an appeal calls for
statutory interpretations or presents questions of law, an appel-
late court must reach an independent conclusion irrespective of
the determination made by the court below. Id. The determina-
tion of whether the procedures afforded an individual comport
Decisions of the Nebraska Court of Appeals
464 21 NEBRASKA APPELLATE REPORTS
with due process is a question of law. See State v. Parker, 276
Neb. 661, 757 N.W.2d 7 (2008).
VI. ANALYSIS
1. Granting State’s Motion for
Temporary Custody of Chloe
[4] Susan argues that the trial court erred in granting tem-
porary custody of Chloe to DHHS. She argues it was error to
grant the ex parte order and to order continued placement with
DHHS. We are without jurisdiction, however, to address any
alleged error in the granting of the ex parte order. An ex parte
temporary custody order keeping a child’s custody from his or
her parent for a short period of time is not a final order. See
In re Interest of R.R., 239 Neb. 250, 475 N.W.2d 518 (1991).
Because this court is without jurisdiction to consider orders
which are not final in nature, we are without jurisdiction to
consider Susan’s argument that the court erred in granting the
temporary ex parte custody order.
[5] Susan also argues that the court erred in granting the
State’s motion for continued custody of Chloe, because the
court failed to conduct a contested detention hearing. Unlike
an ex parte temporary order, a detention order entered after
a detention hearing is a final, appealable order. See In re
Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), dis-
approved on other grounds, O’Connor v. Kaufman, 255 Neb.
120, 582 N.W.2d 350 (1998). Whether the February 21, 2012,
hearing satisfied the due process requirements of a detention
hearing is also reviewable. See In re Interest of Borius H. et
al., 251 Neb. 397, 558 N.W.2d 31 (1997). However, in order
for us to review these matters, Susan was required to timely
appeal from the February 21 order continuing placement of
Chloe with DHHS. Since Susan did not file a notice of appeal
until September 11, we are without jurisdiction to address
errors relating to the February 21 hearing. See In re Interest
of Zachary L., 4 Neb. App. 324, 543 N.W.2d 211 (1996)
(acknowledging we do not have jurisdiction to entertain appeal
raising issues in juvenile case that settled substantial right
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF CHLOE P. 465
Cite as 21 Neb. App. 456more than 30 days before appeal was perfected). Therefore,
we do not address any issues raised regarding the temporary
hearing of February 21.
2. Failing to Hear Susan’s Motion for R eturn
of Legal and P hysical Custody P rior
to A djudication H earing
Susan assigns as error the court’s refusal to hear her motion
for return of custody prior to the adjudication hearing. Susan
filed her motion for return of custody on March 27, 2012, the
day of the pretrial, and indicated that the hearing would take
approximately half a day. The court’s schedule, combined with
that of counsel, could not accommodate Susan’s request, and
therefore the court set the hearing date for May 7—the same
date as the hearing on the adjudication petition. Susan filed
an amended motion for return of custody on April 18, and at
an impromptu hearing on April 30, the court iterated that the
hearing on Susan’s motion and the State’s petition would take
place at the same time due to the commonality of witnesses
and the court’s time constraints. The hearing was ultimately
commenced on May 7 and was carried over to additional days
in May and June.
Although Susan argues that “[n]o other detention hearing
was ever scheduled,” brief for appellant at 19, the trial court
did not deny Susan the opportunity to present evidence on
her motion. Rather, the trial court simply required her to pre­
sent the evidence at the same time evidence was presented for
adjudication. The practicality of this decision is emphasized
by the length of the adjudication hearing and the overlapping
nature of the evidence supporting both the adjudication and
the motion.
In this case, Susan had ample opportunity to present evidence
to the trial court challenging Chloe’s removal. Accordingly, she
was not entitled to a separate hearing on her motion for the
return of legal and physical custody after being afforded an
opportunity to present evidence on the removal at the hearing
in February.
Decisions of the Nebraska Court of Appeals
466 21 NEBRASKA APPELLATE REPORTS
3. Adjudicating Chloe as Juvenile Within
Meaning of § 43-247(3)(a)
Susan argues that the trial court erred in finding Chloe to
be a minor within the meaning of § 43-247(3)(a), and Joseph
joins in this argument. In particular, they argue that the trial
court failed to require the State to show a “definite risk of
future harm,” brief for appellant at 19, and to demonstrate the
evidentiary nexus between its allegations and a definite risk of
future harm. We disagree.
Section 43-247(3)(a) provides that the juvenile court shall
have jurisdiction over any juvenile
who lacks proper parental care by reason of the fault or
habits of his or her parent, guardian, or custodian; whose
parent, guardian, or custodian neglects or refuses to pro-
vide proper or necessary subsistence, education, or other
care necessary for the health, morals, or well-being of
such juvenile; . . . or who is in a situation or engages in
an occupation dangerous to life or limb or injurious to the
health or morals of such juvenile[.]
[6-8] The juvenile court shall have jurisdiction over a juve-
nile if the State proves that the juvenile is within the meaning
of § 43-247(3)(a) by a preponderance of the evidence. See In
re Interest of Heather R. et al., 269 Neb. 653, 694 N.W.2d
659 (2005). While the State need not prove that the juvenile
has suffered physical harm to find the juvenile to be within
the meaning of § 43-247(3)(a), the State must establish that
“without intervention, there is a definite risk of future harm.”
In re Interest of Anaya, 276 Neb. 825, 838, 758 N.W.2d 10,
21 (2008). In order to establish a “definite risk of future
harm,” there must be an evidentiary nexus between the allega-
tions of the petition and a definite risk of future harm. In re
Interest of Taeven Z., 19 Neb. App. 831, 839, 812 N.W.2d 313,
321 (2012).
(a) Definite Risk of Future Harm
Susan and Joseph argue that the trial court did not properly
find a definite risk of future harm to Chloe. Susan argues that
in order to find a definite risk, the risk needed to be “‘free of
all ambiguity, uncertainty, or obscurity.’” Brief for appellant
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF CHLOE P. 467
Cite as 21 Neb. App. 456at 20. Susan argues that the risk in this case did not meet this
standard because it was uncertain whether or not Chloe would
suffer harm.
While the juvenile court must find that the juvenile’s situa­
tion presents a definite risk of future harm, a juvenile court
is not required to “‘“‘wait until disaster has befallen a minor
child before the court may acquire jurisdiction. . . .’”’” In re
Interest of Gloria F., 254 Neb. 531, 537, 577 N.W.2d 296,
301 (1998) (quoting In re Interest of Joshua M. et al., 251
Neb. 614, 558 N.W.2d 548 (1997)). Because the court is not
required to wait for disaster, “identifying specific evidence of
harm or risk of harm is unnecessary.” In re Interest of Gloria
F., supra.The trial court defined “risk” as the “‘possibility of loss or
injury.’” To have a definite risk, the possibility of loss or injury
must be free from ambiguity.
After carefully laying out the requirement that Chloe be at a
“‘definite risk of future harm,’” the county court stated:
Here the risk that Chloe faced on January 30, 2012 was
that she would not receive the proper feedings that the
medical experts had stated she required to properly grow
and would not be properly cared for in the ways appro-
priate for an infant. In evaluating the probability of such
risks occurring the Court looked at the evidence of the
failed “48 hour room-in”; the improper mixing of formula
by the mother; the attitude of the mother demonstrated
by the statement that infants “sleep when they want and
eat when they want” in the face of the medical expert’s
requirement of a definite schedule of feedings and amount
and manner of those feedings; the not having sufficient
formula for Chloe on January 30, 2012 when DHHS came
to remove Chloe; the refusal to seek or accept assistance
from offered programs; the inability of the parents to
grasp the importance and manner of the feedings despite
repeated training; [and] the psychological testimony of
the parents’ habitual patterns of inadequate parenting,
their inability to change and failure to recognize their
need to change . . . .
Decisions of the Nebraska Court of Appeals
468 21 NEBRASKA APPELLATE REPORTS
The evidence provided to the court showed that there was
a definite risk that Chloe would not receive the feedings or
care that she needed. Susan claims that the State demonstrated
only the “possibility” of risk, not a “definite risk.” Brief for
appellant at 21. As evidenced by the above, however, the trial
court found that given all the circumstances, a “definite risk”
existed. We agree.
(b) Failure to Demonstrate Evidentiary
Nexus Between Allegations and
Definite Risk of Future Harm
Susan and Joseph argue that the State failed to demonstrate
an evidentiary nexus between its allegations and a definite
risk of future harm. In particular, they note that Chloe did
not have any specialized feeding needs at the time of her
discharge and that the hospital and the State had arranged
sufficient services to intervene before Chloe suffered actual
harm. We disagree.
At the outset, we note that the State does not have to wait
until a child suffers harm before intervening. See In re Interest
of Gloria F., supra. In this case, there is a nexus between the
evidence presented at the trial, the State’s allegations, and
harm to Chloe. Although many of Chloe’s medical problems
had resolved at the time of her discharge, she was still at risk
for failure to thrive. The fact that she no longer required a
feeding tube and that her electrolytes were stabilized did not
diminish the importance of her prescribed feeding schedule.
Dr. Pierce testified that maintaining this schedule was criti-
cally important.
The medical concern over Chloe’s feeding schedule is evi-
dent from the fact that the hospital took the unusual step of
conducting a 48-hour monitoring period to ensure Chloe’s
parents could properly care for her prior to her discharge.
Dr. Pierce testified that if she had known Susan had to be
prompted to feed Chloe during the 48 hours, she would have
considered the 48-hour period a failure, and that the informa-
tion regarding prompting would have affected her decision to
discharge Chloe. Although the prompting was not documented
in the nursing notes, Chloe’s nurse, Holcomb, testified that it
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF CHLOE P. 469
Cite as 21 Neb. App. 456occurred; that she reported it to the child protection worker,
Fox, the next day; and that Fox included it in her letter to the
court. There was no evidence presented disputing the prompts.
Several health care providers testified that Susan’s comments
about the feeding schedule caused them concern about Chloe’s
well-being in Susan’s care.
The evidence showed that Susan could not care for Chloe
even in an optimal, supportive environment, where she knew
she was being monitored. Given her failure to care for Chloe
in that environment, it is unlikely she would be able to care
for Chloe outside of that environment. Indeed, the evidence
presented at trial showed that Susan has significant stress-
ors, including financial and relationship stressors, that would
inhibit her ability to care for Chloe.
The record revealed that the substantial support put in place
by the State would not be enough to ensure that Chloe received
all eight of the feedings that she needed each day. Although
Dr. Pierce testified that medical intervention would be pos-
sible before Chloe failed to thrive, the record reveals that these
circumstances created a definite risk that Chloe would not
receive the feedings medically required. The risk that Chloe
would not receive the feedings medically required is a defi-
nite risk of harm. It is not necessary that Chloe actually fail
to thrive before becoming a juvenile within the meaning of
§ 43-247(3)(a).
Susan and Joseph also argue that none of the evidence
presented about the voluntary relinquishment of her two
other children showed a definite risk of future harm to Chloe.
While the evidence presented about the prior relinquishments
did not, on its own, show that Chloe was at risk of future
harm, the evidence did provide the trial court with some
insight into how Susan and Joseph dealt with stressors previ-
ously, which provided the court with some evidence of their
parenting habits. The evidence of Susan’s and Joseph’s past
struggles combined with the evidence about their reaction to
Chloe’s medical situation showed that there was a definite
risk Chloe would suffer harm in the future in Susan’s and
Joseph’s care.
Decisions of the Nebraska Court of Appeals
470 21 NEBRASKA APPELLATE REPORTS
4. Joseph’s Cross-Appeal
Before addressing the deficiencies in Joseph’s cross-appeal,
we first set forth the chronology of the appeal. Susan filed a
notice of appeal on September 11, 2012. Joseph filed a notice
of appeal on September 28. In response to Joseph’s notice of
appeal, the clerk of the Nebraska Supreme Court sent a letter to
the Madison County Court and copied all attorneys of record,
advising them that pursuant to Neb. Ct. R. App. P. § 2-101(C)
(rev. 2010), multiple appeals from the same case could not
be docketed. The clerk advised, “Therefore, the notice of
appeal filed by [Joseph] shall be treated as a second notice of
appeal in the above-captioned matter.” This is in accord with
§ 2-101(C), which states:
Method of Docketing Case; Multiple Appeals from Same
Case Prohibited. Upon receipt of the material required by
§ 2-101(B), the Clerk of the Supreme Court shall there-
upon docket the case designating the party or parties first
having filed the notice of appeal in the district court as
appellant or appellants. All other parties shall be desig-
nated as appellees, and any attempt to appeal thereafter
made by any party to the action shall be filed in the exist-
ing case and not separately docketed.
Susan filed a “Brief of Appellant” on February 1, 2013. The
State filed a “Brief of the Appellee” on February 28. On that
same date, Joseph filed a motion for a 30-day extension of
his brief date, which was granted. The guardian ad litem filed
a “Brief of Guardian Ad Litem” on March 4. Susan filed her
reply brief on March 13. Thereafter, Joseph filed a brief enti-
tled “Brief of Appellee, Joseph . . .” on March 15. No further
briefing occurred.
[9] In Joseph’s brief, he assigned errors and sought affirma-
tive relief, but there is no designation of a cross-appeal on the
cover of the brief, nor is a cross-appeal set forth in a sepa-
rate division of the brief as required by Neb. Ct. R. App. P.
§ 2-109(D)(4) (rev. 2012), which section states in full:
Where the brief of appellee presents a cross-appeal, it
shall be noted on the cover of the brief and it shall be
set forth in a separate division of the brief. This division
shall be headed “Brief on Cross-Appeal” and shall be
Decisions of the Nebraska Court of Appeals
IN RE INTEREST OF CHLOE P. 471
Cite as 21 Neb. App. 456prepared in the same manner and under the same rules as
the brief of appellant.
In In re Interest of Natasha H. & Sierra H., 258 Neb. 131,
602 N.W.2d 439 (1999), the Nebraska Supreme Court declined
to consider a father’s arguments appealing the termination of
his parental rights, because he failed to properly designate his
arguments as a cross-appeal. As in the present case, the father
filed a notice of appeal after the mother did so, making him an
appellee. The father set forth assignments of error in his brief,
which he entitled simply “‘Brief of Appellee.’” In re Interest
of Natasha H. & Sierra H., 258 Neb. at 144, 602 N.W.2d at
450. In its refusal to consider the father’s assignments of error,
the court explained that “the appellate courts of this state have
always refused to consider a prayer for affirmative relief where
such a claim is raised in a brief designated as that of an appel-
lee,” id. at 146, 602 N.W.2d at 451, and “have repeatedly indi-
cated that a cross-appeal must be properly designated, pursuant
to [§ 2-10]9(D)(4), if affirmative relief is to be obtained,” 258
Neb. at 145, 602 N.W.2d at 450. The court further cautioned
parties seeking appellate review of their claims to be aware of
the rules governing appeals, noting that “[a]ny party who fails
to properly identify and present its claim does so at its peril.”
Id. at 147, 602 N.W.2d at 451.
[10] We note that in the present case, after Joseph filed
his notice of appeal, the appellate clerk notified him that his
notice of appeal would be treated as a second notice of appeal
and referred him to § 2-101(C). This rule advised Joseph that
he would be designated as an appellee, and he correctly des-
ignated himself as an appellee on his brief. Therefore, this
case is governed by In re Interest of Natasha H. & Sierra
H., and is distinguishable from Knaub v. Knaub, 245 Neb.
172, 512 N.W.2d 124 (2004), and In re Application A-16642,
236 Neb. 671, 463 N.W.2d 591 (1990). In both Knaub and In
re Application A-16642, the parties filing second notices of
appeal mistakenly designated their briefs as briefs of appel-
lants. Here, Joseph correctly identified his brief as that of an
appellee, but he failed to comply with the proper filing of a
cross-appeal. Section 2-101(E) instructs an appellee on how
to assert a cross-appeal, stating: “Cross-Appeal. The proper
Decisions of the Nebraska Court of Appeals
472 21 NEBRASKA APPELLATE REPORTS
filing of an appeal shall vest in an appellee the right to a cross-
appeal against any other party to the appeal. The cross-appeal
need only be asserted in the appellee’s brief as provided by
§ 2-109(D)(4).”
Based upon our court rules, Joseph, as an appellee, was
required to identify his cross-appeal on the cover of his brief
and in a separate section in compliance with § 2-109(D)(4).
As in In re Interest of Natasha H. & Sierra H., supra, we
decline to waive the rules on his behalf and to award him
affirmative relief. Because Susan and Joseph both assigned
as error the court’s decision adjudicating Chloe, however, we
consider Joseph’s argument on this issue in addressing Susan’s
assigned error.
VII. CONCLUSION
We conclude that the State sufficiently proved that Chloe
was within the meaning of § 43-247(3)(a) because there was a
definite risk that her parents would not provide for her needs,
resulting in harm. Because Joseph did not properly designate
his brief as a cross-appeal, we do not address his assigned
errors. Accordingly, we affirm the county court’s order.
Affirmed.