In re Interest of Mariah T. ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF MARIAH T. ET AL.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF MARIAH T. ET AL., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
WALTER P., JR., APPELLANT.
Filed August 16, 2016. No. A-16-006.
Appeal from the Separate Juvenile Court of Douglas County: PATRICIA A. LAMBERTY,
District Judge, Retired. Affirmed.
Patrick A. Campagna and Britt H. Dudzinski, of Lustgarten & Roberts, P.C., L.L.O., for
appellant.
Donald W. Kleine, Douglas County Attorney, Anthony Hernandez, and Laura Delgado,
Senior Certified Law Student, for appellee.
MOORE, Chief Judge, and IRWIN and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Walter P., Jr. (Walter II) appeals the order of the separate juvenile court for Douglas
County, in which the court found the minor children were within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Supp. 2015), by reason of the faults or habits of their father. For the reasons that
follow, we affirm.
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BACKGROUND
Walter II and Tiera T. are the parents of Walter P. III (Walter III), born in November 2009,
and Malaija P., born in November 2014. Tiera’s daughter, Mariah T. was born in December 2006.
Walter II has an older daughter, Ashantae. Ashantae resided with Walter II and Tiera for a period
of time, but at the time of the adjudication hearing she resided out-of-state with her mother.
In June 2015, the Nebraska Department of Health and Human Services (DHHS) received
an intake alleging that Ashantae disclosed sexual abuse by Walter II, and that Mariah was also a
victim of sexual abuse by Walter II. Law enforcement was notified, and a forensic interview was
conducted at Project Harmony on June 26, 2015. The children received hair follicle testing at
Project Harmony. The results indicated Malaija was positive for PCP and marijuana, Walter III
was positive for marijuana, and the results for Mariah were inconclusive.
On September 16, 2015, the State of Nebraska filed a petition alleging Walter III and
Malaija were within the meaning of Neb. Rev. Stat. § 43-247(3)(a) by reason of the faults or habits
of Walter II, in that: (A) he subjected minor juveniles to inappropriate sexual contact; (B) he
subjected minor juveniles to inappropriate physical discipline and/or contact; (C) his use of alcohol
and/or controlled substances places the juveniles at risk for harm; (D) he failed to provide the
juveniles with safe, stable, and/or appropriate housing; (E) he failed to provide proper parental
care, support, and/or supervision of the juveniles; and, (F) due to the allegations, the juveniles were
at risk for harm.
The State filed an ex parte motion for immediate custody on the same day, and the juvenile
court ordered the minor children to be placed in the custody of DHHS, with placement to exclude
Walter II’s home.
On October 22, 2015, a hearing was held to address a motion for deposition in lieu of live
testimony. The parties indicated that they had previously agreed that Mariah’s testimony would
take place in a non-threatening environment, in chambers, with neither of the parents present. The
parties also stipulated that, if a discovery deposition was to take place, Mariah’s therapist would
be present. Walter II’s counsel indicated that he wanted to take the deposition of Mariah prior to
trial. The parties discussed the appropriateness of asking a child to testify at a deposition, and again
at the time of trial. The guardian ad litem stated that testifying in any manner would be “incredibly
difficult” for the child. She also stated that she believed it was in the child’s best interests to testify
only once, in an environment designed to be as comfortable and nonthreatening as possible. The
court determined Mariah would only be called to testify one time, either at a deposition in lieu of
live testimony, or at the time of trial in the judge’s chambers. The order indicated the therapist and
foster parent(s) would be permitted to attend, but that Walter II and Tiera would not be permitted
to be in the room.
On October 22, the court also addressed motions in limine concerning the exclusion of a
portion of the testimony of one of the State’s witnesses, Karen Baber, an initial assessment worker
for DHHS. Walter II alleged that Baber elicited information from him and from Tiera without the
presence or approval of their attorneys. Baber testified that she began work on this case in June
2015, but was asked by the detective involved not to speak with the parents until the investigation
was complete. Ordinarily Baber interviews the families, makes collateral phone calls, and gathers
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all of the information for a final report. She finalized her report in June, but her investigation was
not complete because she had not concluded her interviews of the parents.
Baber testified that in July 2015, she received the results of the drug tests of the children
which was conducted at Project Harmony. She relayed the results to the county attorney’s office.
Baber was notified sometime in August that Walter II and Tiera were no longer under a police
hold. In September, a deputy county attorney asked Baber whether she had spoken to the parents
about the toxicology reports, or the allegations of physical abuse. On September 9, 2015, Baber
spoke to Walter II by telephone, and she also made contact with Tierra. Once Baber spoke to both
parents, she completed a safety assessment, which was distributed on September 24, 2015. Baber
testified that she is not a law enforcement officer and is not trained to give Miranda warnings or
detain anyone. She stated that it is part of her duties and responsibilities to talk to parents, even
after a court case is initiated or the parents retain counsel. She stated that she did not do anything
in this case that was outside of her normal responsibilities. Baber stated that neither parent
indicated they were unwilling to speak with her, and they appeared to do so voluntarily. Baber was
not told by Walter II or Tiera’s attorneys not to speak with their clients.
The court overruled the motions in limine. The court also considered the motions for
sanctions filed by both parents involved in this case, and overruled the motions.
The adjudication hearing was held on November 16 and 18, 2015. None of the counselors
or therapists testified regarding Malaija, presumably due to her young age.
Deborah Gleich-Bope, a school counselor at Belle Ryan Elementary testified that she was
familiar with Mariah, Ashantae, and Walter III because they were students at the school.
Gleich-Bope testified that she first spoke to Mariah because she noticed that Mariah looked sad
when getting off the bus. Mariah told Gleich-Bope that she was sad because she had not showered
or brushed her teeth. Gleich-Bope observed Mariah and Ashantae while she was on bus duty at the
school, and one day they appeared to be sad, so she brought them to the office to discuss any
problems in a private area. The children said they were sad because they were not brushing their
teeth or showering regularly because they were staying with their grandmother, and the power was
turned off in the home. Gleich-Bope provided toothbrushes and toothpaste, which were kept in her
office, and the girls came in every morning to brush their teeth. In October or November 2013, the
girls disclosed to Gleich-Bope that their shoes did not fit and that their feet hurt. They also reported
that they were not eating because there was not a lot of food in the house. Gleich-Bope arranged
for them to take a backpack of food home on the weekends.
Gleich-Bope described Mariah’s personality in 2013-2014 as quiet, timid, and fearful.
During the school year, another student reported that Mariah brought matches onto the school bus.
Mariah told Gleich-Bope that she and her siblings played with matches in the home and had been
lighting things on fire. When Gleich-Bope told Mariah that she would need to call home, Mariah
had a “panic attack.” Gleich-Bope observed that Mariah was shaking, crying, and begging
Gleich-Bope not to call home because she would get a “whoopin.” Gleich-Bope asked Mariah
what a “whoopin” meant, and Mariah said that she would get hit with a belt. Mariah did not have
any marks on her at the time, but said that she had in the past, and sometimes the marks would
bleed. Mariah told Gleich-Bope that she did not feel safe at home. Gleich-Bope called child
protective services and reported that Mariah did not feel safe, and that she as being hit with a belt.
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Gleich-Bope testified that Mariah did not tell her how often she was “whooped,” when it occurred,
or who did it.
Gleich-Bope also spoke to Ashantae, who said she did not feel safe at home and that she
was also hit with a belt, sometimes with her pants off. Gleich-Bope described Ashantae as more
forthcoming, assertive, and freer than Mariah. She said Ashantae was excited to move, and to live
with her mom.
Gleich-Bope met Walter III in 2015 as a kindergartner. Gleich-Bope said Mariah and
Walter III were very protective of each other. Mariah walked Walter III to his classroom for the
first several weeks of school to ensure that he was in the right place. Gleich-Bope testified that
Mariah’s personality changed in 2015, and she became more assertive, happy, and outgoing. She
said Mariah smiled more and began volunteering and participating in class.
Robin Stratton, a mental health therapist, testified that Mariah and Walter III had been
clients since the initial intake in July 2015. Stratton has a degree in community counseling and
specializes in trauma and attachment in children. She testified that Mariah and Walter III both met
with Dr. LeaAnn Brinkman, Stratton’s supervising psychologist, who performed a mental status
exam and provided a diagnosis of each child. Brinkman diagnosed both children with
posttraumatic stress disorder (PTSD) and Stratton relied on this diagnosis to form her treatment
plan. Stratton testified that she meets with each child weekly. She observed that, when asked about
her family, and especially Walter II, Mariah would display coping mechanisms including
avoidance, disassociation, or becoming stuck in an emotion that was difficult for her to come out
of. Stratton observed that Mariah would become avoidant and shut down, or she would become
very silly and hypervigilant, and hop around the room.
Although Walter II is not Mariah’s biological father, he is the person that Mariah identifies
as her father. Stratton testified that Mariah made statements that her mom is mean, that both of her
parents gave her “whoopins.” Stratton testified that Mariah did not want to discuss any
inappropriate things that happened to her with Walter II because she had already discussed the
matter at Project Harmony. Stratton testified that Mariah tended to get overwhelmed by her
emotions, and her emotions could be extreme. On one occasion, Mariah cried hysterically
throughout the counseling session and continued to cry while Stratton met with Walter III. On that
day, Mariah could hardly walk without assistance or hold herself up. Mariah has stated that she is
fearful of Walter II because he is inappropriate and he gives “whoopins.”
Stratton meets separately with Walter III and has observed that he is aggressive, has
difficulty with impulse control, focusing, and staying on task. When Walter III discusses his
mother or father, he becomes agitated, will play in an aggressive manner, and wants to put on a
police outfit and put people in jail. Walter III described his parents as “mean” and said they give
him “whoopins.” He told Stratton that he does not want to see them. Walter III did not provide
specific information about the date, frequency, location, or other details about the physical
discipline he received. Stratton testified that based upon her training, education, and experience,
she was concerned that Walter III would be at risk for harm if he returns to his father’s care.
Stratton testified that for Mariah to be discharged from therapy, she would need an ability
to cope with her emotions, to be able to talk about trauma without becoming overwhelmed or
avoidant, and to identify and consistently use her coping skills. For Walter III to be discharged
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from therapy, he should develop an ability to cope and to identify his emotions, to be able to
process and identify his fear, and he should feel safe.
A certified copy of Mariah’s deposition was offered and accepted as Exhibit 13. The
deposition occurred on November 4, 2015 and Mariah identified certain “privacy rules.” She
testified that Walter II broke one of the rules, which is that nobody “touches your private spots.”
Mariah testified that Walter II made her touch his “W,” which she identified as the area of the
body where boys and girls pee from. Mariah testified that while at Project Harmony, she drew a
picture that showed Mariah and Walter II. Mariah had written the words “suke my dick” on the
drawing. Mariah also testified that Walter II touched her “W” with his finger, and that it hurt. She
said Walter II told her not to tell anyone when he touched her. Mariah was not certain as to the
details regarding the “bad touch.” She could not say for sure where or when it had occurred or who
else may have been present either in the room or in the home. She testified that when she lived
with Walter II and Tiera, she would get “whoopins” on her bottom with a blue belt. She said she
received “whoopins” when she was naughty, and that they scared her, and they hurt.
Baber testified at the adjudication hearing. She stated that after the original intake, alleging
sexual abuse of Ashantae and Mariah by Walter II, she notified law enforcement and the case was
assigned to Detective Love. Love took Mariah to Project Harmony for a forensic interview, which
Baber observed. Baber testified that Mariah’s statements in the forensic interview corroborated the
statements Mariah made in her deposition. During the forensic interview, Mariah stated that
Walter II made her suck his “W” in Arkansas, and that he put his finger inside of her in Omaha.
Baber acknowledged that some of Mariah’s statements about the location where the sexual contact
occurred were contradictory. However, she stated that her opinion was based on the disclosure that
the sexual abuse had occurred, not the location of where it had happened. After witnessing the
forensic interview, Baber interviewed Walter III about physical discipline. Walter III reported that
his parents whipped him with a blue belt.
Baber spoke with Walter II about the use of inappropriate physical discipline. Walter II
stated that, as part of a previous CPS investigation, he was told not to use a belt, so he no longer
disciplines the children using a belt. Walter II told Baber that he did not know why Mariah would
make up allegations of sexual abuse, except that Ashantae had disclosed sexual abuse by another
perpetrator, and she had received extra attention. Walter II indicated that he did not know how
Malaija had tested positive for PCP because he does not do that drug. He stated that when he
smokes marijuana, the children are asleep upstairs and he is downstairs.
Baber testified that in her opinion, the children would be at risk for harm if returned to their
parents’ home. She specifically stated that if Walter III and Malaija were returned to Walter II,
they would be at risk for harm. Baber testified that she based her opinion on the intake, the forensic
interview, her conversation with Stratton, the toxicology report, and her interview with the parents.
On December 7, 2015, the Separate Juvenile Court for Douglas County found that Counts
I-A, I-B, I-E, and I-F of the petition filed against Walter II were true by a preponderance of the
evidence. The court found the children came within the meaning of § 43-247(3)(a). Walter II
timely appeals.
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ASSIGNMENTS OF ERROR
Walter II asserts the juvenile court erred by unfairly limiting his right to conduct proper
discovery. He also asserts the court erred in finding the State proved the allegations against him
by a preponderance of the evidence.
STANDARD OF REVIEW
Juvenile cases are reviewed de novo on the record, and an appellate court is required to
reach a conclusion independent of the juvenile court’s findings. In re Interest of Gavin S., 23 Neb.
App. 401, 873 N.W.2d 1 (2015). When the evidence is in conflict, an appellate court may give
weight to the fact that the lower court observed the witnesses and accepted one version of the facts
over the other. Id.ANALYSIS
Limitation of Discovery.
Walter II asserts the juvenile court erred by unfairly limiting his ability to conduct
discovery. Specifically, he asserts the court “greatly hindered his ability to gather evidence or
preserve testimony for trial because he was allowed only one opportunity to meet with and gather
information from the State’s key witness, the alleged victim, and was forced to do so in the
presence of the judge.”
Control of discovery is a matter of judicial discretion. In re Interest of R.R., 239 Neb. 250,
475 N.W.2d 518 (1991). The party asserting error in a discovery ruling bears the burden of
showing that the ruling was an abuse of discretion. Id. The right of parents to maintain custody of
their child is a natural right, subject only to the paramount interest which the public has in the
protection of the rights of the child. In re Interest of Brian B., 268 Neb. 870, 689 N.W.2d 184(2004). Here, while Walter II is not the biological father of Mariah, the State alleged sexual abuse
perpetrated upon her by him as the basis for adjudication of two other minor children, Walter III,
and Malaija. See Id. Walter II’s due process rights are implicated by virtue of the potential effect
of these proceedings upon his parental relationship with his biological children.
In the context of both adjudication and termination hearings, procedural due process
includes notice to the person whose right is affected by the proceeding; reasonable opportunity to
confront and cross-examine adverse witnesses and present evidence on the charge or accusation;
representation by counsel, when such representation is required by the Constitution or statutes;
and a hearing before an impartial decisionmaker. In re Interest of Trenton W., 22 Neb. App. 976,
865 N.W.2d 804 (2015). Parents have a fundamental liberty interest at stake, and the State cannot
adjudicate a child except by procedures which meet the requisites of the Due Process Clause. Id.The Nebraska Supreme Court has stated that in deciding due process requirements in a
particular case, an appellate court must weigh the interest of the parent, the interest of the State,
and the risk the of erroneous decision given the procedures in use. In re Interest of Brian B., supra.The court also stated that due process is flexible and calls for such procedural protections as the
particular situation demands. Id.-6-
Prior to the adjudication hearing, the parties agreed that the parents should not be present
during Mariah’s deposition or testimony. The guardian ad litem stated that testifying in any manner
would be “incredibly difficult” for Mariah. She stated that she believed it was in Mariah’s best
interests to testify only once, in an environment designed to be as comfortable and nonthreatening
as possible. Walter II does not dispute the decision for Mariah to testify outside of the presence of
Walter II and Tiera. Instead, he asserts the judge should have allowed the parties to depose Mariah,
and have the opportunity to adduce testimony from her at trial, in the judge’s chambers.
The Nebraska Supreme Court has stated that it is only logical that a child not be faced with
the risk of being harmed by testifying in the presence of his or her parents when that is what the
court is trying to prevent. See In re Interest of Brian B., supra. “When the requisite showing has
been made by the State the juvenile court may exercise its discretion in determining whether to
permit the child to testify in chambers.” Id.In this case, the court considered the potential trauma that Mariah would suffer if forced to
testify twice, and allowed Walter II to listen to Mariah’s deposition by telephone and to consult
with counsel. The court clearly considered Walter II’s due process rights, and the guardian ad
litem’s recommendation regarding the best interests of the child, in determining that Mariah’s
deposition testimony would be in the presence of the court and accepted in lieu of live testimony.
We find the decision of the juvenile court was not an abuse of discretion.
Walter II asserts he was hindered because he was only allowed one opportunity to question
Mariah. During that deposition, the parties were given the opportunity to question Mariah
regarding her allegations of sexual contact with Walter II, as well as the reports of inappropriate
physical discipline. The parties were able to question her regarding statements she made to
therapists and counselors, and the statements she made in the forensic interview with Project
Harmony, to aid the court in making a determination regarding the veracity of Mariah’s
allegations. Walter II was given the opportunity to confront and meaningfully examine the witness
and has not demonstrated that he was prejudiced by the juvenile court’s limitation of discovery
and testimony as it relates to Mariah.
Walter II states that there can be a significant difference between what is discoverable
during a deposition and what is admissible at trial. To the extent that Walter II argues the judge
was exposed during the deposition to information which may not have been admissible at trial, we
note the juvenile court acknowledged at the hearing on October 22, that it would allow the parties
“some leeway” in asking questions of Mariah, and would give them the opportunity to strike
portions of the record as needed. It is presumed that judges disregard evidence which should not
have been admitted. See Tapia-Reyes v. Excel Corp., 281 Neb. 15, 793 N.W.2d 319 (2011).
Upon our review, we find the juvenile court did not abuse its discretion in limiting
discovery related to the minor child, Mariah.
Receiving Deposition of Minor Child.
As part of his assertion that the trial court erred in limiting discovery, Walter II argues “the
court erred by receiving into evidence the deposition of Mariah, who is not Appellant’s child, in
lieu of live testimony over the objection of Appellant’s counsel.” This error is an evidentiary issue
that is arguably separate from the court’s limitation on discovery, and it was not specifically
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assigned. An alleged error must be both specifically assigned and specifically argued in the brief
of the party asserting the error to be considered by an appellate court. In re Interest of Nicole M.,
287 Neb. 685, 844 N.W.2d 65 (2014).
Even assuming this error was properly raised, Walter II’s argument was not properly
preserved for appeal. He argues the deposition did not fall within one of the hearsay exceptions,
thus it was inadmissible. At the adjudication hearing, Walter II objected to the admission of the
deposition, but did not do so on hearsay grounds. An objection based on a specific ground and
properly overruled, does not preserve a question for appellate review on any other ground. State v.
Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015). As such, Walter II did not preserve the issue of the
admissibility of Mariah’s deposition, on hearsay grounds, for review on appeal. Thus, we do not
reach the issue of the admissibility of the deposition on hearsay grounds because it was not
specifically assigned and argued, and because the objection was not properly raised before the trial
court.
Adjudication of Children as Juveniles
Within Meaning of § 43-247(3)(a).
Walter II asserts the juvenile court erred in finding Counts I-A, I-B, I-E, and I-F against
him to be true, by a preponderance of the evidence. He argues the evidence and testimony related
to those allegations were inconsistent and insufficient to find that the children were within the
meaning of Neb. Rev. Stat. § 43-247(3)(a). A child may be found to be within the meaning of
§ 43-247(3)(a) when the juvenile lacks proper parental care by reason of the faults or habits of his
or her parent, guardian, or custodian. Id.
The parent’s rights are determined at the dispositional phase, not at the adjudication phase.
In re Interest of Brian B., 268 Neb. 870, 689 N.W.2d 184 (2004). The purpose of the adjudication
phase of a juvenile proceeding is to protect the interests of the child and to ensure the child’s safety.
In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012). At this stage, the State
must prove the allegations of the petition by a preponderance of the evidence, and the court’s only
concern is whether the conditions in which the juvenile presently finds himself or herself fit within
the asserted subsection of § 43-247. In re Interest of Trenton W., 22 Neb. App. 976, 865 N.W.2d
804 (2015). While the State need not prove that the juvenile has actually suffered physical harm,
at a minimum, the State must establish that without intervention, there is a definite risk for future
harm. Id.Count I-A of the petition alleged that Walter II had subjected minor juveniles to
inappropriate sexual contact. As previously discussed, the State offered Mariah’s deposition
testimony, in which she indicated that Walter II made her touch his “W,” which she indicated is
the area of the body where a boy or girl “pees” from. She also indicated Walter II touched her “W”
with the pointer finger of his hand and that it hurt. She said Walter II told her not to tell anybody
that he had touched her.
Baber testified that Mariah made statements in a forensic interview, conducted at Project
Harmony, which corroborated the statements Mariah made in her deposition. During the forensic
interview, Mariah stated that Walter II had made her suck his “W” when they were in Arkansas,
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and he put his finger inside of her “W” on one occasion in Omaha. While at Project Harmony,
Mariah drew a picture that showed her and Walter II with the words “suke my dick.”
The State offered the testimony of Mariah’s therapist, Robin Stratton, who testified that
she had been treating Mariah since July 2015. Stratton stated that Mariah resisted talking about
any inappropriate actions by Walter II because she was interviewed by Project Harmony and did
not want to discuss it. Stratton testified that Mariah was diagnosed with PTSD and displayed
coping strategies when uncomfortable topics were discussed. Behaviors included becoming silly
and wild, hypervigilant, crying hysterically, becoming very quiet and staring into space, or shutting
down.
Mariah’s testimony was inconsistent at times, and Walter II alleges that it does not meet
the standard of proof by a preponderance of the evidence. However, when the evidence is in
conflict, an appellate court may give weight to the fact that the lower court observed the witnesses
and accepted one version of the facts over the other. In re Interest of Gavin S., supra. The court
found, based upon the testimony presented, that the evidence showed that Walter II had subjected
a minor child to sexual contact by a preponderance of the evidence. Upon our de novo review, we
find the juvenile court did not abuse its discretion in concluding that Count I-A was true by a
preponderance of the evidence.
Count I-B alleged that Walter II subjected minor juveniles to inappropriate physical
discipline and/or contact. Gleich-Bope, the counselor from Mariah and Walter III’s elementary
school, testified that when she told Mariah that she would need to call him to report an incident at
school, Mariah had a “panic attack.” Gleich-Bope said Mariah was shaking, crying, and begging
her not to call because she would get a “whoopin” at home. Mariah said that a “whoopin” meant
that she would be hit with a belt. Mariah did not have any marks on her at the time, but she told
Gleich-Bope that she had in the past, and sometimes the marks would bleed. Mariah reported that
she did not feel safe at home. Mariah did not volunteer who hit her with a belt, or how often it
happened.
Stratton testified that Mariah told her that Walter II is mean. Mariah reported that she is
fearful of Walter II because he is inappropriate and gives “whoopins,” therefore she does not want
to see him. Stratton testified that both Mariah and Walter III have been diagnosed with PTSD. She
said Walter III struggles with aggression, impulse control, focusing, and staying on task.
In her deposition, Mariah stated that when she lived with Tiera and Walter II she received
“whoopins” on her bottom with a blue belt. She stated that the “whoopins” hurt and that they
scared her. Baber testified that Walter III reported in his forensic interview that his parents whip
him with a blue belt. Baber testified that Walter II admitted that he had used a belt to discipline
the minor children. However, he stated that during a previous CPS investigation, he was told not
to use a belt anymore. He told Baber that the previous CPS investigation was determined to be
unfounded, and that he no longer used a belt for discipline. Baber testified that she was unsure of
the time frame which Mariah referred to when she reported that she was hit with a belt.
Again, when the evidence is in conflict, an appellate court may give weight to the fact that
the lower court observed the witnesses and accepted one version of the facts over the other. In re
Interest of Gavin S., supra. The court found, based upon the testimony presented, that the evidence
showed that Walter II had subjected the minor children to inappropriate physical discipline. Upon
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our de novo review, we find the trial court did not abuse its discretion in determining this count to
be true by a preponderance of the evidence.
Counts I-E and I-F alleged that Walter II failed to provide Walter III and Malaija with
proper parental care, support, and/or supervision, and that due to the allegations in the petition, the
children were at risk for harm. While the juvenile court must find that the juvenile’s situation
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 Chloe P., 21
Neb. App. 456, 840 N.W.2d 549 (2013).
The court found that Walter II subjected the minor children to inappropriate sexual contact
and inappropriate physical discipline. There is no definitive proof that Walter III or Malaija have
been subjected to sexual contact, or Walter II had subjected the minor children to inappropriate
discipline since the prior CPS investigation. However, there is evidence which tends to show that
the children are at a risk for harm due to the faults or habits of their father.
Walter III’s therapist, Stratton, testified that based upon her training, education, and
experience, she was concerned that he would be at risk for harm if returned to his father’s care.
Baber also testified that in her opinion, the children would be at risk for harm if returned to their
parents’ home. She specifically stated that if Walter III and Malaija were returned to Walter II,
they would be at risk for harm. Baber testified that she based her opinion on the intake, the forensic
interview, her conversation with Stratton, the toxicology report, and her interview with the parents.
We find that the juvenile court did not abuse its discretion in finding that the allegations in Counts
I-E and I-F, were true by a preponderance of the evidence.
CONCLUSION
For the foregoing reasons, we affirm the juvenile court’s determination that the children
came within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015).
AFFIRMED.
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