In re Interest of Elijah P. ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/21/2017 08:07 AM CST
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Nebraska Court of A ppeals A dvance Sheets
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IN RE INTEREST OF ELIJAH P. ET AL.
Cite as 24 Neb. Ct. App. 521
In re I nterest of
Elijah P. et al.,
18 years of age.
children under
State of Nebraska, appellee and cross-appellee,
v. Erika D., appellant, and Joshua P.,
appellee and cross-appellant.
___ N.W.2d ___
Filed February 21, 2017. No. A-15-946.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings.
2. Parental Rights: Rules of Evidence: Due Process. In termination of
parental rights hearings, the Nebraska Evidence Rules do not apply;
instead, due process controls and requires that fundamentally fair proce-
dures be used by the State in an attempt to prove that a parent’s right to
his or her child should be terminated.
3. Parental Rights. Neb. Rev. Stat. § 43-292(9) (Reissue 2016) allows
for terminating parental rights when the parent of the juvenile has sub-
jected the juvenile or another minor child to aggravated circumstances,
including, but not limited to, abandonment, torture, chronic abuse, or
sexual abuse.
4. ____. Whether aggravated circumstances under Neb. Rev. Stat.
§ 43-292(9) (Reissue 2016) exist is determined on a case-by-case basis.
5. Parental Rights: Words and Phrases. Where the circumstances created
by the parent’s conduct create an unacceptably high risk to the health,
safety, and welfare of the child, they are aggravated.
6. Evidence: Words and Phrases. Clear and convincing evidence is that
amount of evidence which produces in the trier of fact a firm belief or
conviction about the existence of a fact to be proved.
7. Parental Rights. Generally, a finding of aggravated circumstances
under Neb. Rev. Stat. § 43-292(9) (Reissue 2016) is based on severe,
intentional actions on the part of the parent.
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IN RE INTEREST OF ELIJAH P. ET AL.
Cite as 24 Neb. Ct. App. 521
8. ____. Neb. Rev. Stat. § 43-292(2) (Reissue 2016) provides that parental
rights may be terminated when the parents have substantially and con-
tinuously or repeatedly neglected and refused to give the juvenile or a
sibling of the juvenile necessary parental care and protection.
9. Juvenile Courts: Rules of Evidence. Juvenile courts must apply the
Nebraska Evidence Rules at adjudication hearings.
10. Trial: Expert Witnesses. Once a party calls into question an expert
testimony’s factual basis, data, principles, methods, or their application,
the trial court must determine whether the testimony has a reliable basis
in the knowledge and experience of the relevant discipline, and the court
does not have the discretion to abdicate its gatekeeping duty.
11. ____: ____. In performing its gatekeeping duty, a trial court has consid-
erable discretion in deciding what procedures to use in determining if
an expert’s testimony satisfies the standards of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d
862 (2001), but a necessary component of the trial court’s duty is that
when faced with such an objection, the court must adequately demon-
strate by specific findings on the record that it has performed its duty
as gatekeeper.
12. Trial: Expert Witnesses: Appeal and Error. After a sufficient objec-
tion under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), has been made, the losing
party is entitled to know that the trial court has engaged in the heavy
cognitive burden of determining whether the challenged testimony was
relevant and reliable and is entitled to a record that allows for meaning-
ful appellate review.
13. Trial: Expert Witnesses. Without specific findings or discussion on the
record, it is impossible to determine whether a trial court carefully and
meticulously reviewed proffered scientific evidence or simply made an
off-the-cuff decision to admit expert testimony.
14. ____: ____. In performing its gatekeeping duty, a trial court must
explain its choices, and the record must include more than a recitation
of the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), boilerplate language
and a conclusory statement that the challenged evidence is or is not
admissible.
15. ____: ____. A trial court adequately demonstrates that it has per-
formed its gatekeeping duty when the record shows (1) the court’s
conclusion whether the expert’s opinion is admissible and (2) the
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IN RE INTEREST OF ELIJAH P. ET AL.
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reasoning the court used to reach that conclusion, specifically noting
the factors bearing on reliability that the court relied on in reaching
its determination.
16. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
the record de novo to determine whether a trial court has abdicated its
gatekeeping function.
17. Trial: Expert Witnesses. Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001),
do not require that courts reinvent the wheel each time that evidence is
adduced, and in such situations, a less extensive analysis and reasoning
may be allowed.
18. New Trial. Only errors that are prejudicial to the rights of the unsuc-
cessful party justify a new trial.
19. Trial: Expert Witnesses. Only if the admission or exclusion of the
expert’s testimony did not affect the result of the trial unfavorably for
the party against whom the ruling was made will a court’s abdication of
its gatekeeping duty be deemed nonprejudicial.
20. Juvenile Courts: Jurisdiction: Proof. At the adjudication stage, in
order for a juvenile court to assume jurisdiction of minor children under
Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014), the State must prove
the allegations of the petition by a preponderance of the evidence.
21. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile,
the court’s only concern is whether the conditions in which the juvenile
presently finds himself or herself fit within the asserted subsection of
Neb. Rev. Stat. § 43-247 (Cum. Supp. 2014).
22. Juvenile Courts: Proof. 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 of
future harm.
Appeal from the Separate Juvenile Court of Douglas
County: Christopher K elly, Judge. Affirmed in part, and in
part reversed and remanded for further proceedings.
Thomas C. Riley, Douglas County Public Defender, and Zoë
R. Wade for appellant.
Donald W. Kleine, Douglas County Attorney, Amy
Schuchman, Anthony Hernandez, and Shinelle Newman, Senior
Certified Law Student, for appellee State of Nebraska.
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IN RE INTEREST OF ELIJAH P. ET AL.
Cite as 24 Neb. Ct. App. 521
Matthew R. Kahler, of Finley & Kahler Law Firm, P.C.,
L.L.O., for appellee Joshua P.
Moore, Chief Judge, and R iedmann and Bishop, Judges.
R iedmann, Judge.
I. INTRODUCTION
Erika D. appeals and Joshua P. cross-appeals from the
order of the separate juvenile court of Douglas County which
adjudicated the parties’ minor children under Neb. Rev. Stat.
§ 43-247(3)(a) (Cum. Supp. 2014) and terminated Erika’s and
Joshua’s parental rights as explained below. We affirm the
adjudication, but for the reasons that follow, we reverse the
termination and remand the cause for further proceedings.
II. BACKGROUND
Erika and Joshua are the parents of five minor children:
Joshua P., Jr. (Joshua Jr.), born in February 2006; Zion P., born
in February 2008; Isaiah P., born in January 2013; Genesis P.,
born in November 2013; and Faith P., born in May 2015. Elijah
P., born in February 2013, is the biological child of Joshua and
another woman, but he had been under the care of Erika since
October 2014.
The factual basis underlying the case occurred in January
2015 and is largely undisputed. At that time, the children,
including Elijah, were residing with Erika. Joshua did not
reside in the home, but he would see the children several times
per week. On January 2, Elijah was standing on the armrest
of the couch at Erika’s house and fell off, landing face first
on the floor, which was made of “vinyl covering tile” placed
over concrete. He sustained a “knot” above his right eye that
began to swell. Erika comforted Elijah and then called Joshua
and sent him a photograph of Elijah’s face by text message.
Joshua told her to put some ice on the injury and keep Elijah
awake for a while to monitor his condition. Elijah cried briefly
but then acted normally—playing, eating, and drinking. When
Joshua arrived at Erika’s house a short while later, he talked
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IN RE INTEREST OF ELIJAH P. ET AL.
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to Elijah and noticed nothing unusual about Elijah’s behavior
or demeanor. A few days later, Elijah began to develop a black
eye from the fall, but otherwise there were no observable inju-
ries or anything out of the ordinary about his behavior over the
week following the fall.
On the evening of January 11, 2015, Erika fed the children
dinner and gave them baths. She put the younger children,
including Elijah, to bed around 8:30 p.m., and Elijah “went
down easily.” A little while later, she checked on him and
noticed he was lying down, but his arms were straight up in the
air. She pulled the covers off of him and called his name, but
he did not wake up or put his arms down. Erika also noticed
that he appeared to be stiff. She lowered Elijah’s arms down,
and then he relaxed and the stiffness went away.
Erika continued to watch Elijah, and a couple minutes
later, he stiffened again. Erika then attempted to call Elijah’s
mother, and when there was no answer, she sent his mother
a text message asking if he had ever previously experienced
stiffness in his sleep. By this time, Elijah had relaxed again
and looked like he was sleeping. Elijah’s mother responded
that Elijah “was super stiff especially in his legs” when he was
born, but it had gone away, and she thought it was unusual
that the stiffness had returned. After receiving the text message
from Elijah’s mother, Erika felt less concerned, because Elijah
had experienced something similar in the past. Nevertheless,
around 9 p.m., Erika called Joshua, told him about Elijah’s
stiffness, and asked him to come over.
On his way to Erika’s house, Joshua searched the Internet
for information on a 2-year-old experiencing stiffness while
sleeping, and what he read was not alarming to him. The
results of his search revealed that other children experienced
stiffness in their sleep off and on—sometimes the parents were
able to alleviate the condition and sometimes they were not,
but by the next morning the children would be fine.
When Joshua arrived at Erika’s house, he observed stiff-
ness in Elijah’s arms and legs and attempted to awaken him
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IN RE INTEREST OF ELIJAH P. ET AL.
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by calling his name and touching him on the shoulder. Elijah’s
body then relaxed. Erika showed Joshua the text message from
Elijah’s mother reporting that Elijah had experienced stiffness
when he was born. Because Elijah had previously experienced
something similar, was breathing normally, and appeared to be
sleeping, Joshua told Erika to let Elijah continue to sleep and
see how he was in the morning when he woke up.
Joshua stayed at Erika’s house for approximately an hour,
and during that time, there was no indication that Elijah’s
stiffness had returned. When Joshua left Erika’s house, he
asked Erika to call him if anything changed or Elijah became
stiff again and said if that happened, he would come back.
Other than stiffness, Erika and Joshua did not observe any
unusual body movements such as shaking, jerking, or signs
of a seizure; Elijah’s eyes were closed, and he seemed to
be sleeping.
After Joshua left, Erika continued to monitor Elijah’s con-
dition throughout the night, but he did not experience any
more stiffness overnight and appeared to be sleeping. She did
not call Joshua because nothing concerning occurred over-
night, and Elijah’s condition did not change until around 8:30
a.m. the next day. After the older children left for school on
the morning of January 12, 2015, Erika heard Elijah whining,
so she thought he was awake and ready for breakfast. When
she went to get him, she noticed his leg was stiff and one
of his eyes was open, but he was not focusing or looking at
her. She then called Joshua and asked him to take Elijah to
the hospital.
When Joshua arrived, he observed the same symptoms Erika
had reported, and he immediately took Elijah to the hospital.
There, Elijah was diagnosed with a skull fracture above the
right eye, a subdural hematoma, and a significant brain injury.
He was taken into surgery to have the hematoma drained.
Because of concerns that Elijah’s injuries were the result of
child abuse, the police and a child abuse pediatrician, Dr.
Suzanne Haney, were called to the hospital.
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IN RE INTEREST OF ELIJAH P. ET AL.
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A police detective responded to the hospital and spoke with
Joshua, who recounted the events of January 2 and 11, 2015.
The detective later met with Erika, and Erika reported the same
version of events. Erika’s and Joshua’s stories remained con-
sistent throughout numerous interviews. The police found no
“hard evidence” indicating that Elijah’s injuries were intention-
ally caused. However, in Dr. Haney’s opinion, Elijah’s injuries
were the result of nonaccidental abusive head trauma, and thus,
Erika and Joshua were arrested, and all of the children were
removed from their care.
In various petitions, amended petitions, and supplemental
petitions, the State sought adjudication of the children and ter-
mination of Erika’s parental rights to Joshua Jr., Zion, Isaiah,
Genesis, and Faith, and termination of Joshua’s parental rights
to Elijah, Joshua Jr., Zion, Isaiah, and Genesis. The State did
not seek adjudication of Faith based on any acts of Joshua or
termination of his parental rights to Faith.
In the operative pleadings, the State asserted that the chil-
dren came within the meaning of § 43-247(3)(a), that rea-
sonable efforts to preserve and reunify the family were not
required because Elijah had been subjected to “aggravated cir-
cumstances,” that termination of parental rights was warranted
under Neb. Rev. Stat. § 43-292(2) and (9) (Reissue 2016), and
that termination was in the children’s best interests.
Prior to the juvenile court’s holding an adjudication or
termination hearing, Erika and Joshua filed a joint motion in
limine asking that the court prohibit the State from introduc-
ing opinion testimony that Elijah’s injuries were intention-
ally inflicted unless the court first established its reliability
under the standards set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb.
215, 631 N.W.2d 862 (2001) (Daubert/Schafersman). Thus,
the court held a Daubert/Schafersman hearing to determine the
admissibility of Dr. Haney’s opinion testimony. At the conclu-
sion of the Daubert/Schafersman hearing, the juvenile court
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IN RE INTEREST OF ELIJAH P. ET AL.
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determined that the testimony satisfied the requisite standards
and was therefore admissible.
The adjudication hearing and termination hearing were held
jointly over the course of 4 days in July and August 2015. At
the hearing, Dr. Haney explained that in cases of abusive head
trauma, the victims are usually infants who suffer a “sudden
change in their level of consciousness” by way of either sei-
zures or unconsciousness, and their injuries generally include
an injury to the brain itself; bleeding around the brain, known
as subdural or subarachnoid hemorrhages; retinal hemorrhages;
and sometimes other injuries such as bruises or broken bones.
The mere presence of a subdural hematoma or skull fracture is
not indicative of abusive head trauma or child abuse, because
the injuries could be the result of accidental trauma such as a
car accident or a significant fall.
In Dr. Haney’s opinion, Elijah’s injuries were the result of
two separate incidents. One incident occurring about January
2, 2015, caused the skull fracture above his right eye but did
not cause any long-term consequences. In her opinion, a sec-
ond incident of trauma occurred around the time he became
symptomatic on January 11 and led to the subdural hematoma,
brain injury, and seizures. She opined that the injuries were
caused by separate incidents because they were located on
opposite sides of the brain; the skull fracture was on the right
side of Elijah’s head, and the subdural hematoma was located
on the left side of the brain. And in her experience, subdural
hematomas resulting from a skull fracture occur directly under-
neath the fracture itself. In addition, Dr. Haney testified that
the severity of Elijah’s brain injury and subdural hematoma
was not consistent with a short fall and that he would have
begun to display symptoms within minutes to hours after sus-
taining an injury that caused the type of subdural hematoma he
had. Thus, based on the history provided to her and the lack of
any significant accidental trauma, Dr. Haney opined that the
subdural hematoma and brain injury were the result of inflicted
blunt force trauma.
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IN RE INTEREST OF ELIJAH P. ET AL.
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Dr. Haney acknowledged that in terms of attempting to date
the injuries, the skull fracture and subdural hematoma could
have occurred at the same time. But because of the locations
of the injuries, she believed they were two separate injuries.
She also acknowledged, however, that it is possible that an
impact on the right side of the head could result in a bruise or
subdural hematoma on the left side of the brain. In Dr. Haney’s
experience observing skull fractures with subdural hematomas,
she had never seen an “isolated opposite side subdural [hema-
toma],” but she admitted that the fact that she had not seen it
did not mean it was not possible.
Other testimony at the hearing revealed that after the chil-
dren were removed from Erika’s and Joshua’s care, they under-
went medical evaluations. Zion was found to have seven
cavities and two abscessed teeth. Otherwise, the children did
not appear dirty and none of them had any untreated medical
conditions. A pediatrician testified that he examined Isaiah in
September 2013 when Isaiah was approximately 81⁄2 months
old. He noticed that Isaiah was not moving his eyes together
and recommended to Joshua that Isaiah be seen by a pediatric
ophthalmologist. The pediatrician followed up several times
with Erika and Joshua, and when an appointment had not been
made by November, the pediatrician called Child Protective
Services, because he was concerned that Isaiah was at risk
for vision loss. Erika and Joshua explained the delay in hav-
ing Isaiah seen was due to Medicaid issues and Genesis’ pre-
mature birth in November 2013. Isaiah was ultimately seen
and underwent eye surgery in January 2014. Thus, the Child
Protective Services intake was closed, because no safety risks
were identified.
Genesis was born prematurely at 24 weeks’ gestation. She
had a “brain bleed” on both sides of her brain and was in the
hospital for nearly 3 months. Pediatricians recommended early
intervention services for Genesis, because she was at risk for
developmental and learning problems due to her prematurity.
When Genesis presented for her 6-month checkup, she was
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developmentally delayed for a normal 6-month-old child, but
she was doing things physically that were appropriate for a
3-month-old child; thus, she was developmentally on track
for a child born as prematurely as she was. Erika acknowl-
edged that additional services were suggested for Genesis, but
because the pediatricians indicated that Genesis was develop-
ing on track when considering her prematurity, Erika under-
stood that additional services were not necessary.
After the children were removed from Erika’s and Joshua’s
care, Joshua Jr. and Zion began attending weekly appointments
with a licensed mental health therapist. Both children were
diagnosed with “adjustment disorder, not otherwise specified.”
The therapist explained that adjustment disorder occurs when
children have experienced a disruption or significant change
in their lives, which results in mild symptomology such as
increased emotion, a bit of sleep disturbance, or increased
“worried thoughts” that interfere in daily functioning. Joshua
Jr.’s symptoms included worrying about Erika and Joshua,
including what happened to them and if he was going to be
able to see them, worrying about living in his foster home
with a stranger, and worrying about Elijah. He was having
some issues at school with attention and focus and some mild
trouble following basic directions. Zion’s symptoms included
becoming “very emotionally dysregulated” at times, being
overly sensitive to corrections, becoming very clingy, having
mild trouble sleeping, and experiencing “worried thoughts.”
Like Joshua Jr., Zion expressed concern over her parents
and Elijah. The trauma the therapist was addressing with the
children was the trauma of being removed from their parents’
care, which is a very traumatic and upsetting event, the inju-
ries to Elijah, and some past events the children experienced,
including Zion’s reports that she used to get “whoopins” from
Joshua. According to the therapist, the children are doing very
well in therapy, have been very responsive, and have made
significant progress.
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IN RE INTEREST OF ELIJAH P. ET AL.
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Erika and Joshua both testified at the hearing and described
the events that occurred on January 2 and 11, 2015. A tran-
script of text messages Erika and Joshua exchanged between
January 12 and 19 was received into evidence. The messages
begin with Erika’s asking Joshua if Elijah had been exam-
ined at the hospital yet, and Joshua’s response asking Erika
to clean up the house. The following messages were then
exchanged:
[Joshua:] They said he has a skull fracture and bleeding
by his brain from when he [fell] off the couch
[Erika:] Oh no
....
[Erika:] Is he going to be ok[?]
....
[Joshua:] It[’]s critical. He has to go to the ICU and
he’s on life support
[Erika:] [Oh my God] no
[Erika:] We should [have taken] him last night
[Erika:] I didn’t even sleep because I was watching him
[Erika:] I can’t believe this. From 8:30 to 9 . . . that’s
so crazy. He walked upstairs. I changed his [diaper,] we
said good night [and] I love you[.] [Elijah and] Isaiah
even said it to each other. Then I laid them down
[Erika:] I went to the bathroom and peeked to see if
they were laying down and that’s when I noticed that his
hands were in the air
[Erika:] I can’t believe this. Is this my fault? Should I
[have] just taken him home[?]
[Joshua:] I thought about taking him. At first I thought
he was just dreaming but then I googled what might have
him doing that and everything I read said that some kids
do that and they are fine when they wake up
[Joshua:] Then you told me [Elijah’s mother] said that
he has done it before so I didn’t take him. I was going
to tell her to ask the doctor about it at his next doctor’s
appointment because she said he has one soon
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[Joshua:] If I thought it was anywhere close to this
serious I would have [taken] him last night
[Erika:] It was a first for us both so we couldn’t be
100% [sure] that there was something wrong
[Erika:] I cannot believe this
[Erika:] He seemed so fine. No crying. Dancing to [a
movie] and playing with Joshua [Jr.] prior to dinner
[Erika:] This is crazy. What am I [going to] do? I can’t
believe there was something majorly wrong with him and
I didn’t know
[Erika:] What is his mom saying?
[Erika:] She’s going to blame me for forever. I thought
I was doing something good
....
[Erika:] But he was hurting and I didn’t even know
....
[Erika:] Do you think you could go get my mom? She
said [the police are] coming about 5:30 maybe but not
sure but I’ll need her here so I can talk with them and not
be distracted by the kids
[Joshua:] [Yes]. Make sure you don’t lie about any-
thing. If the[y] ask you a question you don’t know the
answer to, say you don’t know. Don’t try to make up any-
thing. No one did anything to try to hurt him and that’s
what matters.
The court also received into evidence video recordings of
forensic interviews conducted of Joshua Jr. and Zion. In their
respective interviews, the children described hearing Erika
calling Elijah’s name on the night of January 11, 2015, after
Elijah had gone to bed and going into his bedroom and see-
ing his stiff arms up in the air. They explained that Elijah was
not misbehaving that night and that Erika was not upset. They
did not hear Erika yelling or Elijah crying when Erika put him
to bed. Joshua Jr. said that when Erika would get upset with
Elijah, she would yell or tell him to stop what he was doing.
The children said that neither Erika nor Joshua ever hit Elijah
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or “whooped” him. Joshua Jr. never saw Erika be mean to
Elijah, and she treated him the same as she treated the other
children. Zion confirmed that she has seen Erika kiss Elijah
and tell him she loves him. Zion believed that Elijah’s injuries
were the result of his fall off the couch. Joshua Jr. indicated
that he would disclose if Erika had hurt Elijah and that he
would have told Joshua as well.
The juvenile court entered orders on September 10, 2015,
finding that the State proved all of the allegations in the peti-
tions and motions by sufficient evidence. The court therefore
determined that the children came within the meaning of
§ 43-247(3)(a), that Erika’s and Joshua’s parental rights should
be terminated pursuant to § 43-292(2) and (9), that no reason-
able efforts were required, and that termination of parental
rights was in the children’s best interests. Erika timely appeals
to this court, and Joshua cross-appeals.
III. ASSIGNMENTS OF ERROR
Erika assigns, renumbered, that the juvenile court erred in
(1) “abdicating its gatekeeping function under Daubert” by
failing to set forth its reasoning for concluding that Dr. Haney’s
testimony was reliable, (2) implicitly finding that the scientific
basis for Dr. Haney’s opinion was “scientifically reliable under
Daubert,” (3) implicitly finding that Dr. Haney conducted a
“reliable differential diagnosis,” (4) finding that Erika sub-
jected Elijah to aggravated circumstances under § 43-292(9),
(5) finding that the children come within the meaning of
§ 43-292(2), (6) finding that termination of Erika’s parental
rights was in the children’s best interests, (7) excusing reason-
able efforts under Neb. Rev. Stat. § 43-283.01 (Reissue 2016),
and (8) finding that the children come within the meaning of
§ 43-247(3)(a).
On cross-appeal, Joshua assigns that the juvenile court erred
in finding (1) that the children come within the meaning of
§ 43-292(2) and (9), and (2) that termination of his parental
rights was in the children’s best interests.
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IN RE INTEREST OF ELIJAH P. ET AL.
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IV. STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings. In re Interest of Joseph S. et al., 291 Neb.
953, 870 N.W.2d 141 (2015).
V. ANALYSIS
1. Termination of Parental R ights
Under the procedural posture of this case, the adjudication
hearing and termination hearing were held jointly. The juvenile
court found the evidence sufficient to support both adjudica-
tion and termination, and Erika and Joshua challenge those
decisions on appeal. We first address the termination of their
parental rights.
(a) Daubert/Schafersman Standards
[2] Erika’s first two assignments of error challenge the juve-
nile court’s decision to admit Dr. Haney’s opinion testimony
over her objection that the opinion was not reliable under the
Daubert/Schafersman standards. In termination of parental
rights hearings, the Nebraska Evidence Rules do not apply
and, thus, neither do the Daubert/Schafersman standards. See
In re Interest of Rebecka P., 266 Neb. 869, 669 N.W.2d 658
(2003). Instead, due process controls and requires that funda-
mentally fair procedures be used by the State in an attempt
to prove that a parent’s rights to his or her child should be
terminated. Id.
In In re Interest of Rebecka P., supra, the Nebraska Supreme
Court determined that the father’s due process rights were
not violated by the testimony of a witness, because the father
received notice of the termination hearing, he appeared at
the hearing and was represented by counsel, and his counsel
cross-examined the witness and raised several objections to the
witness’ testimony. The same is true in the present case. Erika
received notice of the termination hearing and the fact that the
State was planning to elicit an opinion from Dr. Haney as to
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the cause of Elijah’s injuries. Erika appeared at the hearing and
was represented by counsel, who cross-examined Dr. Haney
and objected numerous times during her testimony.
We also note that Erika received a continuance of the
termination hearing in order to secure her own expert medi-
cal witness and later filed a motion asking for permission to
take a trial deposition of an out-of-state expert she secured
to rebut Dr. Haney’s testimony. The State and guardian ad
litem objected, and the juvenile court sustained the objection,
thereby preventing Erika from presenting expert medical wit-
ness testimony at the hearing. Erika did not, however, assign
the denial of her motion as error on appeal, and we therefore
do not opine on whether this decision comports with funda-
mental fairness or the due process standards. We otherwise
find that the due process requirements were satisfied and that
the juvenile court did not err in allowing Dr. Haney’s opinion
for consideration on the motion to terminate parental rights.
Because the rules of evidence do apply at adjudication hear-
ings, we will address Erika’s assignments of error with respect
to Daubert/Schafersman in greater detail in the adjudication
section below.
(b) Statutory Grounds
In its order terminating Erika’s and Joshua’s parental rights,
the juvenile court found by clear and convincing evidence that
termination was warranted under § 43-292(2) and (9). Erika
and Joshua challenge these determinations on appeal. Upon our
de novo review of the record, we conclude that the evidence
does not clearly and convincingly establish that Erika and
Joshua neglected the children under § 43-292(2) or subjected
them to aggravated circumstances under § 43-292(9). We first
address the allegations of aggravated circumstances.
(i) § 43-292(9)
[3] Section 43-292(9) allows for terminating parental rights
when the parent of the juvenile has subjected the juvenile or
another minor child to aggravated circumstances, including,
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but not limited to, abandonment, torture, chronic abuse, or
sexual abuse.
[4,5] Whether aggravated circumstances under § 43-292(9)
exist is determined on a case-by-case basis. See In re Interest
of Ryder J., 283 Neb. 318, 809 N.W.2d 255 (2012). The
Legislature has not defined “aggravated circumstances” in the
juvenile code, but the Supreme Court cited with approval the
New Jersey Superior Court, stating that where the circum-
stances created by the parent’s conduct create an unacceptably
high risk to the health, safety, and welfare of the child, they
are “‘aggravated.’” See In re Interest of Jac’Quez N., 266 Neb.
782, 791, 669 N.W.2d 429, 436 (2003).
Because the juvenile court’s order does not contain specific
factual findings, it is unclear what aggravated circumstances
the court found to exist in the case at hand. It appears the
State alleged the existence of aggravated circumstances based
on either Erika’s alleged intentional causation of Elijah’s head
injuries or Erika’s and Joshua’s failure to timely seek medical
attention for Elijah.
Upon our de novo review of the record, we conclude that the
evidence does not clearly and convincingly establish that Erika
intentionally caused Elijah’s injuries. There do not appear to
be any allegations that Joshua intentionally harmed Elijah, and
the evidence is undisputed that Elijah’s symptoms of a head
injury began at a time when Joshua was not present and Erika
was home alone with the children. Thus, our analysis as to
any assertion of intentional, physical harm to Elijah concerns
only Erika.
The only evidence presented at trial from which a finding
of intentional abuse could be based is Dr. Haney’s opinion that
Elijah’s brain injury and subdural hematoma were not caused
by the fall from the couch. But she admitted that the height of
the fall was not presented to her, and her records incorrectly
indicated that he fell off a couch and hit his head on a table.
The evidence was undisputed that Elijah fell off the couch on
January 2, 2015, from a height of 28 inches, and landed on
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his face on a floor made of “vinyl covering tile” placed over
concrete. He immediately sustained a “knot” over his eye and
ultimately developed a black eye. Dr. Haney opined that as a
result of the fall, he suffered a skull fracture. Over the course
of the next 9 days, however, Elijah was acting normally and
did not appear to have any additional injuries.
The evening of January 11, 2015, was, by all witness
accounts, uneventful, with the children eating dinner, taking
baths, and getting ready for bed. Joshua Jr. and Zion confirmed
that Elijah was not misbehaving that night and that Erika was
not upset. The older children did not hear any loud noises,
commotion, or crying when Erika put Elijah to bed, and Erika
confirmed that he went to bed easily that night. The police
detective agreed that other than Dr. Haney’s opinion, there was
no “hard evidence” that would indicate that Elijah’s injuries
were intentionally caused.
Furthermore, in general, there was no evidence presented
that Erika physically disciplined any of the children or was
physically abusive. She testified that she does not spank the
children, and Joshua Jr. said that Erika does not spank them,
but, rather, when the older children get in trouble, she disci-
plines them by taking away their toys or video games. There
was some discussion surrounding a claim that Erika “pops”
the children in the mouth. She explained that she does so if
the children eat food off the floor and she wants them to spit
it out because there are bugs in her apartment. She said it is
not a form of discipline. Joshua Jr. and Zion said they have
never seen Erika hit or hurt Elijah. Although Zion detailed an
incident where Elijah got a “whoopin’” from Erika, she later
described a “whoopin’” as Erika’s slapping Elijah’s hands
with her hands. Zion said that it did not hurt Elijah and that
he did not cry when Erika did so. Joshua Jr. stated that Erika
treated Elijah the same as the other children, and Zion said
she has seen Erika give Elijah kisses and tell him that she
loves him. Joshua Jr. was asked whether he would tell the
interviewer if Erika had hurt Elijah, and Joshua Jr. indicated
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that he would and said that he would have told Joshua if Erika
had hurt Elijah.
We also consider the text messages between Erika and
Joshua sent after the January 2 and 11, 2015, incidents, as well
as the inquiry Erika sent Elijah’s mother on January 11. Our
review of those messages reveals genuine concern and do not
support a finding by clear and convincing evidence that Erika
intentionally injured Elijah.
[6] Clear and convincing evidence is that amount of evi-
dence which produces in the trier of fact a firm belief or
conviction about the existence of a fact to be proved. In re
Interest of Josiah T., 17 Neb. Ct. App. 919, 773 N.W.2d 161
(2009). Although Dr. Haney’s testimony could support a con-
clusion that Erika intentionally inflicted Elijah’s injuries,
when coupled with the circumstantial evidence presented at
trial, the totality of the evidence does not rise to the level of
clear and convincing in order to support a finding that Erika
intentionally harmed Elijah. There is no evidence that Erika
abused or neglected any children in the past or acted with
any malicious intent the night Elijah became symptomatic.
To the contrary, she not only cared for her own children, but
she agreed to also care for Elijah, a child Joshua fathered
with another woman. We note the absence of any motive or
precipitating event that might have led Erika to intentionally
harm Elijah. To the contrary, any loud crying or yelling likely
would have been heard by Joshua Jr. and Zion, both of whom
heard nothing that evening. In her forensic interview, Zion
described hearing a noise she described as both a “boom”
and a “bonk,” but whether that occurred on January 11, 2015,
or a different night is unclear, and regardless, at the time
of the noise, Erika was downstairs with Zion, because Zion
said Erika asked her to go upstairs to check on the younger
children. When Zion investigated, all the children, includ-
ing Elijah, were sleeping. In addition, the police found no
hard evidence indicating that Elijah’s injuries were intention-
ally caused, and the text messages Erika sent to Joshua and
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Elijah’s mother reveal genuine concern. Therefore, the totality
of evidence presented at trial is not clear and does not pro-
duce a firm conviction that Erika intentionally harmed Elijah,
resulting in significant head injuries.
In addition, we do not find that Erika’s and Joshua’s delay
in seeking medical attention for Elijah constitutes aggravated
circumstances. In In re Interest of Jac’Quez N., 266 Neb. 782,
669 N.W.2d 429 (2003), the Supreme Court concluded that
aggravated circumstances existed where the parents delayed
seeking medical attention for 2 days when the child had suf-
fered obvious, serious physical injuries. When the parents
ultimately took the 2-month-old child to the hospital, he had a
fracture to his right leg, severe cerebral palsy, retinal hemor-
rhages in both eyes, diffuse brain injury indicating lack of oxy-
gen, and massive swelling of the brain tissue. The physicians
found his injuries “consistent with child abuse, specifically,
‘shaken baby syndrome.’” Id. at 784, 669 N.W.2d at 431. The
parents denied harming the child, claiming that 2 days ear-
lier he had fallen off the couch and struck his head against a
telephone that was on the floor. The juvenile court ultimately
terminated the father’s parental rights under two subsections
of § 43-292, including subsection (9), finding that he had
subjected the child to aggravated circumstances. But the court
determined that the State failed to meet its burden of proof as
to the mother and declined to terminate her parental rights to
the child. The State appealed.
The Supreme Court reversed, finding the evidence suf-
ficient to also terminate the mother’s parental rights under
§ 43-292(9). In reaching this decision, the court found that
although the evidence did not tend to establish that the mother
inflicted the initial injuries on the child, it clearly and convinc-
ingly established that she delayed seeking medical treatment
for 48 hours after he had received obvious and serious injuries,
thus severely neglecting his medical needs. It was undisputed
that the child’s injuries were obvious during the 48-hour delay,
including the fact that he had a black and swollen eye, was
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unresponsive during that time, was shaking, was not acting
like himself, was not feeding well, was crying intermittently,
was making some twitching movements, and had a change in
consciousness. Thus, the Supreme Court found that it should
have been apparent to the mother that the child had a serious
physical problem, but she nevertheless refused to seek treat-
ment for 2 days, apparently because she feared he would be
taken from her.
Although In re Interest of Jac’Quez N., supra, appears fac-
tually similar to the present case, we find several important
distinctions. First, the evidence in In re Interest of Jac’Quez
N. was undisputed that the child’s injuries were obvious and
serious during the 48-hour period of delay. Here, according to
Erika, Joshua, Joshua Jr., and Zion, Elijah was acting normally
after he fell off the couch on January 2, 2015, until the night
of January 11. Then, he appeared stiff and was unable to be
awakened but displayed no other concerning symptoms, and
Erika and Joshua believed he was sleeping. Erika and Joshua
both stated that they became less concerned about the stiffness
when Elijah’s mother indicated he had experienced stiffness as
a baby and that their concerns were additionally alleviated by
Joshua’s Internet research. As soon as Elijah’s condition wors-
ened the next morning, Erika called Joshua, who responded
immediately and took Elijah to the hospital. Although Elijah
was apparently suffering seizures throughout the night, Dr.
Haney explained that the symptoms of a seizure can range
from a simple “eye deviation [to] grand mal seizures where
every extremity is jerking.” She testified that Elijah’s symp-
toms of episodes of stiffening and relaxing and unresponsive-
ness “could be” symptoms of a seizure. Thus, unlike in In re
Interest of Jac’Quez N., 266 Neb. 782, 669 N.W.2d 429 (2003),
the evidence here is not clear and convincing that on the night
of January 11, Elijah was displaying obvious signs of a serious
medical issue, such as seizures, or that he needed immediate
medical attention.
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In addition, the parents in In re Interest of Jac’Quez N.,
supra, failed to seek medical attention for their child for 48
hours despite knowing there was something seriously wrong
with him. In the present case, Erika and Joshua waited approxi-
mately 14 hours, while Erika continued to monitor Elijah’s con-
dition, and upon noticing a change, they immediately sought
medical care. More importantly, in In re Interest of Jac’Quez
N., the parents admitted that they chose not to take the child to
the hospital sooner because they were afraid he would be taken
from them because of his black eye. Erika and Joshua both
indicated that had they known something was seriously wrong
with Elijah, they would have immediately taken him to the
hospital, and they were not more concerned with his stiffness
and unresponsiveness because of his history of similar actions
and because he relaxed and appeared to be sleeping. There was
no evidence that their delay in seeking medical treatment was
intentionally done in an effort to protect themselves from sus-
picion or to avoid losing custody of Elijah.
[7] Generally, a finding of aggravated circumstances is
based on severe, intentional actions on the part of the parent.
See, In re Interest of Ryder J., 283 Neb. 318, 809 N.W.2d 255
(2012) (finding of aggravated circumstances based on single
event of severe, intentional physical abuse); In re Interest of
Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011) (aggravated
circumstances existed where child suffered severe physical
injuries through intentional abuse); In re Interest of Hope L. et
al., 278 Neb. 869, 775 N.W.2d 384 (2009) (finding of aggra-
vated circumstances due to chronic abuse of parents’ forcing
children to repeatedly undergo unnecessary medical treatment,
repeatedly disconnecting child’s feeding tube, and failing to
comply with medical advice and orders for child’s treatment).
Even in In re Interest of Jac’Quez N., supra, the parents
delayed seeking medical attention for an obviously injured
child because of their fear of losing him. In other words,
their failure to timely seek medical care for their child was
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a conscious, intentional decision made to protect themselves
despite knowing he needed medical attention.
In the instant case, even if it should have been obvious to
Erika and Joshua that Elijah needed medical attention on the
night of January 11, 2015, Elijah’s injuries are the result of
their negligent conduct in failing to recognize his need for
medical care, rather than a deliberate decision to forgo needed
medical attention. The appellate courts of this state have not
extended the meaning of aggravated circumstances to include a
single act of negligent conduct leading to injury to a child, and
we decline to do so now, particularly when the term “aggra-
vated circumstances” has repeatedly been defined to include
severe, intentional physical abuse. We therefore find that the
evidence does not support terminating Erika’s and Joshua’s
parental rights under § 43-292(9).
(ii) § 43-292(2)
[8] The juvenile court also found that the State pre-
sented sufficient evidence to support termination pursuant to
§ 43-292(2). Section 43-292(2) provides that parental rights
may be terminated when the parents have substantially and
continuously or repeatedly neglected and refused to give the
juvenile or a sibling of the juvenile necessary parental care
and protection. The questions of what constitutes neglect and
necessary parental care and protection are generally deter-
mined on a case-by-case basis. But we observe that none of
the common factual patterns often found to establish neglect
exist in the instant case, such as parental incarceration, see In
re Interest of Jahon S., 291 Neb. 97, 864 N.W.2d 228 (2015);
adjudication, involuntary termination, or relinquishment of
previous children, see In re Interest of Sir Messiah T. et al.,
279 Neb. 900, 782 N.W.2d 320 (2010); unsanitary house and
unkempt children, see In re Interest of Lisa W. & Samantha W.,
258 Neb. 914, 606 N.W.2d 804 (2000); or addiction to drugs
or alcohol, see In re Interest of Joshua M. et al., 256 Neb. 596,
591 N.W.2d 557 (1999).
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Here, the allegations of neglect apparently stem from not
only the injuries to Elijah, but a failure to obtain proper medi-
cal care for the other children as well. Specifically, we under-
stand the State to allege that neglect is established because
Erika and Joshua failed to obtain medical care for Genesis’
specialized needs, failed to timely obtain medical care for
Isaiah’s eye issues, failed to ensure two of the children were up
to date on their vaccinations, and failed to obtain dental care
for Zion.
The Supreme Court has previously found that two isolated
instances in which a mother failed to provide medical care
to a child, which did not result in serious injury to the child,
were insufficient to support termination of the mother’s paren-
tal rights. See In re Interest of Angelica L. & Daniel L., 277
Neb. 984, 767 N.W.2d 74 (2009). There, the Supreme Court
recognized and expressed concern over the mother’s medical
judgment but disagreed that such error in judgment warranted
termination of her parental rights. The court reiterated that the
law does not require perfection of a parent. Id.
Although the State sought to terminate the mother’s paren-
tal rights under § 43-292(6) in In re Interest of Angelica L.
& Daniel L., supra, we find the Supreme Court’s rationale
applicable in the present case. Under § 43-292(2), the State
must establish that the parental neglect was substantial and
continuous or repeated. We cannot find that a handful of inci-
dents, none of which resulted in permanent or serious injury
to any of the children, meet that threshold. This is particularly
true when Erika and Joshua obtained eye surgery for Isaiah 4
months after he was referred to a pediatric ophthalmologist
and explained that the delay was due to Medicaid issues and
the premature birth of Genesis. Additionally, the record estab-
lishes that Erika and Joshua routinely took the children to the
pediatrician for both illnesses and regular checkups, and the
children were found to be healthy when they were removed
from Erika’s and Joshua’s care. Erika testified that additional
services were recommended for Genesis, but because the
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pediatrician indicated that Genesis was developmentally on
track when considering her prematurity, Erika did not believe
such services were necessary. Accordingly, we find the evi-
dence does not clearly and convincingly establish substantial
and continuous or repeated neglect to support termination
under § 43-292(2). As a result, the State has not proved
statutory grounds for termination, and we therefore reverse
the termination of Erika’s and Joshua’s parental rights to the
minor children.
Because we find the State failed to establish statutory
grounds for terminating Erika’s and Joshua’s parental rights,
we need not determine whether termination was in the chil-
dren’s best interests or whether reasonable efforts at reunifying
the family were required.
2. A djudication
[9] Our inquiry does not end with our reversing the ter-
mination of Erika’s and Joshua’s parental rights, however,
because the juvenile court also adjudicated the children under
§ 43-247(3)(a), a finding Erika challenges on appeal. The rules
of evidence apply at adjudication hearings, and thus, we now
address Erika’s arguments with respect to the admissibility of
Dr. Haney’s opinion testimony for purposes of adjudication.
See In re Interest of Jordana H. et al., 22 Neb. Ct. App. 19, 846
N.W.2d 686 (2014) (juvenile court must apply rules of evi-
dence during adjudication hearing).
(a) Daubert/Schafersman Standards
Erika assigns that the juvenile court erred in abdicating
its gatekeeping function by failing to set forth its reason-
ing for concluding that Dr. Haney’s testimony was reliable.
We agree.
Prior to trial, Erika and Joshua moved to prevent Dr. Haney
from testifying as to her opinion of the cause of Elijah’s
injuries. They argued that Dr. Haney’s testimony on abusive
head trauma, otherwise known as shaken baby syndrome,
was unreliable under the Daubert/Schafersman criteria. At
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the conclusion of the hearing, the juvenile court denied the
motion in limine from the bench, finding by clear and con-
vincing evidence that the Daubert/Schafersman criteria had
been satisfied and that the opinion testimony as to whether the
head trauma injury Elijah sustained was nonaccidental and/
or intentionally inflicted may be utilized by the State at trial.
The court subsequently entered a written order containing the
same language.
[10-13] The Nebraska Supreme Court has explained that
once a party calls into question an expert testimony’s factual
basis, data, principles, methods, or their application, the trial
court must determine whether the testimony has a reliable basis
in the knowledge and experience of the relevant discipline, and
the court does not have the discretion to abdicate its gate-
keeping duty. See Zimmerman v. Powell, 268 Neb. 422, 684
N.W.2d 1 (2004). The trial court has considerable discretion in
deciding what procedures to use in determining if an expert’s
testimony satisfies the Daubert/Schafersman standards, but
a necessary component of the trial court’s duty is that when
faced with a Daubert/Schafersman objection, the court must
adequately demonstrate by specific findings on the record that
it has performed its duty as gatekeeper. See Zimmerman, supra.
This is so because after a sufficient Daubert/Schafersman
objection has been made, the losing party is entitled to know
that the trial court has engaged in the heavy cognitive burden
of determining whether the challenged testimony was relevant
and reliable and is entitled to a record that allows for meaning-
ful appellate review. Zimmerman, supra. Without specific find-
ings or discussion on the record, it is impossible to determine
whether the trial court carefully and meticulously reviewed the
proffered scientific evidence or simply made an off-the-cuff
decision to admit expert testimony. Id.
[14-16] This requirement means the trial court must explain
its choices, and the record must include more than a recita-
tion of the Daubert/Schafersman boilerplate language and a
conclusory statement that the challenged evidence is or is not
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admissible. Zimmerman, supra. A trial court adequately dem-
onstrates that it has performed its gatekeeping duty when the
record shows (1) the court’s conclusion whether the expert’s
opinion is admissible and (2) the reasoning the court used to
reach that conclusion, specifically noting the factors bearing on
reliability that the court relied on in reaching its determination.
Id. When the court fails to make these findings, it abdicates its
gatekeeping function. Id. An appellate court reviews the record
de novo to determine whether a trial court has abdicated its
gatekeeping function. Id.
The court, in Zimmerman, supra, found that the trial court
abdicated its gatekeeping duty because the record contained
only the court’s conclusion but no analysis as to how the expert’s
testimony at the Daubert/Schafersman hearing was sufficient
to show that the underlying methodology and the manner in
which it was used was reliable. Likewise, in the present case,
the juvenile court’s ruling did not explain why Dr. Haney’s
testimony was reliable and met the Daubert/Schafersman stan-
dards. The court’s oral ruling from the bench and its written
order indicated only that the Daubert/Schafersman standards
had been met and that therefore the testimony was admissible,
but the court failed to detail how the methodology underlying
Dr. Haney’s opinion was reliable, particularly when Erika and
Joshua argued that the methodology has recently been called
into question by other medical experts. Because the juvenile
court failed to explain its reasoning, we find that it abdicated
its gatekeeping duty.
[17] We recognize that “Daubert . . . does not require that
courts reinvent the wheel each time that evidence is adduced
. . . ,” Schafersman v. Agland Coop, 262 Neb. 215, 228, 631
N.W.2d 862, 874 (2001), and that our courts have previously
accepted expert testimony regarding “shaken baby syndrome,”
see State v. Leibhart, 266 Neb. 133, 143, 662 N.W.2d 618, 627
(2003). In such situations, a less extensive analysis and rea-
soning may be allowed. See State v. Mason, 271 Neb. 16, 709
N.W.2d 638 (2006). However, the court is still required to set
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forth its reasoning in more than conclusory fashion when rul-
ing on a Daubert/Schafersman motion. As our Supreme Court
noted when considering adoption of such a standard,
[while] Daubert does not require that courts reinvent
the wheel[,] it does permit the re-examination of certain
types of evidence where recent developments raise doubts
about the validity of previously relied-upon theories or
techniques. In other words, once an issue is determined
under Frye, it is closed to further Frye analysis because it
is no longer “novel.” Daubert, on the other hand, permits
re-examination of the issue if the validity of the prior
determination can be appropriately questioned.
Schafersman, 262 Neb. at 228, 631 N.W.2d at 874.
Because Erika and Joshua were questioning the continued
validity of “shaken baby syndrome,” the absence of the court’s
reasoning is all the more important.
[18,19] Having determined that the court erred in failing to
perform its gatekeeping duty, we must determine whether the
error prejudiced Erika and Joshua because only errors that are
prejudicial to the rights of the unsuccessful party justify a new
trial. See Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1
(2004). When a trial court fails to make the requisite findings,
the losing party will usually be prejudiced. Id. Only if the
admission or exclusion of the expert’s testimony did not affect
the result of the trial unfavorably for the party against whom
the ruling was made will a court’s abdication of its gatekeeping
duty be deemed nonprejudicial. Id.
Here, the State sought to adjudicate the minor children under
§ 43-247(3)(a) based, in part, on Dr. Haney’s opinion that
Elijah’s injuries were nonaccidental. The juvenile court appar-
ently agreed, because it found the evidence sufficient to find
that the children came within the meaning of § 43-247(3)(a).
We therefore cannot say that the admission of Dr. Haney’s
testimony did not affect the result of the trial. Accordingly,
the testimony should not have been admitted for adjudica-
tion purposes.
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(b) Adjudication Under § 43-247(3)(a)
The allegations of the petition upon which adjudication
was sought under § 43-247(3)(a) as to Elijah included that he
presented to the hospital on January 12, 2015, with certain
injuries; that he was in the care and custody of both Erika
and Joshua at the time the injuries occurred; and that neither
Erika nor Joshua could provide a plausible explanation for
the injuries.
Although we determined above that it was error to admit
Dr. Haney’s testimony because the trial court failed to set
forth its reasons under Daubert/Schafersman protocol, the tes-
timony elicited at trial from the police supported the allegation
of the petition that the children lacked proper parental care
by reason of the fault or habits of Erika in that she did not
provide a plausible explanation for Elijah’s injuries. A police
detective testified without objection that medical personnel
indicated to her that Elijah suffered two separate injuries and
that the second injury causing the brain bleed was nonacciden-
tal. Based on that information, the detective determined “that
there was something else going on.” Erika was consistent in
her interviews and at trial that she did not know what hap-
pened to cause this injury.
[20-22] At the adjudication stage, in order for a juve-
nile court to assume jurisdiction of minor children under
§ 43-247(3)(a), the State must prove the allegations of the
petition by a preponderance of the evidence. In re Interest
of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008). The court’s
only concern is whether the conditions in which the juve-
nile presently finds himself or herself fit within the asserted
subsection of § 43-247(3)(a). In re Interest of Anaya, supra.
While the State need not prove that the juvenile has actually
suffered physical harm, at a minimum, the State must estab-
lish that without intervention, there is a definite risk of future
harm. Id.
Based on the testimony that Elijah’s brain bleed was non-
accidental and Erika’s inability to explain the cause, the
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juvenile court did not err in finding by a preponderance of the
evidence that Erika failed to provide a plausible explanation
for Elijah’s injury, supporting the allegation that the children
lacked proper parental care by reason of the fault or habits
of Erika.
While this basis is sufficient to adjudicate the children, for
purposes of completeness, we address the remaining allega-
tions of the petition upon which adjudication was based. These
allegations included a failure to obtain (1) proper medical care
for Genesis’ specialized needs, (2) proper medical care for
Isaiah’s eye issues, (3) proper medical care for the children
because they were not up to date on their vaccinations, and (4)
proper dental care for Zion. We find these bases insufficient to
support adjudication.
In In re Interest of Anaya, supra, the Nebraska Supreme
Court found that the parents’ failure to submit their infant
to mandatory blood testing did not, standing alone, establish
neglect to warrant adjudication under § 43-247(3)(a). There,
the court recognized that while the State need not prove that
the juvenile has actually suffered physical harm, at a mini-
mum, the State must establish that without intervention, there
is a definite risk of future harm. The court found no evi-
dence establishing that the parents had neglected the child; to
the contrary, the evidence indicated that although the parents
refused to submit the child for required testing, they were oth-
erwise meeting his needs and he was a healthy baby. As such,
the State failed to establish that this was an emergency situa-
tion, that harm was imminent, or that continued detention of
the child was warranted. Id.
Similarly, in the present case, the evidence does not prove
that harm was imminent or that the children are at a definite
risk of future harm based upon these other allegations. Erika
and Joshua obtained eye surgery for Isaiah 4 months after
the pediatrician recommended he be examined by a pediatric
ophthalmologist and explained the reasons for their delay.
In addition, Erika explained that based on the pediatrician’s
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opinion that Genesis was developmentally on track for a pre-
mature baby, she did not believe extra services were necessary.
Even Dr. Haney testified that Zion’s cavities raise concern as
to the type of dental care she was receiving, but it is not nec-
essarily unusual for a 7-year-old child to have cavities. After
the children were removed from Erika’s and Joshua’s care,
they were examined and found to be healthy children with no
untreated medical conditions. And the record establishes that
Erika and Joshua regularly take the children to a pediatrician
for illnesses, checkups, and vaccines. Accordingly, we cannot
find that the minimal evidence presented here as to a lack of
medical care rises to the level necessary to adjudicate the chil-
dren under § 43-247(3)(a).
VI. CONCLUSION
We conclude that the State failed to prove by clear and
convincing evidence that termination of the parental rights
of Erika and Joshua is warranted under § 43-292(2) or (9).
We therefore reverse the juvenile court’s decision terminating
their parental rights. We also conclude that the juvenile court
erred in failing to explain its reasoning for determining that
Dr. Haney’s testimony meets the Daubert/Schafersman stan-
dards. We affirm, however, the adjudication of the children,
and we remand the cause for further proceedings.
A ffirmed in part, and in part reversed and
remanded for further proceedings.