In re Interest of Chelsea M. ( 2013 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IN RE INTEREST OF CHELSEA M.
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 CHELSEA M., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
THERESA R., APPELLANT.
Filed December 17, 2013. No. A-13-419.
Appeal from the County Court for Hall County: ARTHUR S. WETZEL, Judge. Affirmed.
Lawrence G. Whelan and Dennis G. Whelan, of Whelan Law Office, for appellant.
Sarah A. Hinrichs, Deputy Hall County Attorney, for appellee.
Stacie A. Goding, of Myers & Daugherty, P.C., guardian ad litem.
IRWIN, PIRTLE, and BISHOP, Judges.
IRWIN, Judge.
I. INTRODUCTION
Theresa R. appeals from an order of the county court for Hall County, Nebraska, sitting
as a juvenile court, which adjudicated one of her children, Chelsea M., to be a juvenile as defined
in Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). On appeal, Theresa asserts that there was
insufficient evidence to warrant the adjudication of Chelsea pursuant to § 43-247(3)(a). Upon our
de novo review of the record, we find sufficient evidence to support the county court’s finding
that it had jurisdiction over Chelsea, and we affirm the order to adjudicate her under
§ 43-247(3)(a).
II. BACKGROUND
On November 2, 2011, Chelsea, who was 16 years old, told her mother, Theresa, and her
stepfather, Stacey R., that she was pregnant. Theresa and Stacey were very upset with Chelsea
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and proceeded to engage in an extremely heated and physical argument with Chelsea and
Chelsea’s boyfriend, Alex H. After this argument, Chelsea had various bruises on her chest and
other parts of her body. In addition, Chelsea had a black eye.
On November 7, 2011, Chelsea told her school counselor, and later told law enforcement
personnel, that her injuries were a result of Stacey’s physically assaulting her after he learned of
her pregnancy. Chelsea reported that on the night of November 2, Stacey pushed her into a chair;
slapped her in the face multiple times; called her stupid; pushed a heavy, “pottery” vase off of a
table and toward her face; and “slammed” her up against a wall. Chelsea reported that Theresa
was present during these incidents and did not intervene to protect her.
As a result of Chelsea’s reports of abuse, the State filed a petition in county court seeking
to adjudicate Chelsea as a child within the meaning of § 43-247(3)(a). The original petition filed
by the State is not included in our record; however, an amended petition filed on September 14,
2012, is included in the record. This amended petition is the operative pleading in this juvenile
court case.
In the September 2012 amended petition, the State alleged that Chelsea lacked proper
parental care by reason of the faults or habits of her parent or that she was in a situation or
engaged in an occupation dangerous to life or limb or injurious to her health or morals because
“[o]n or about November 2, 2011, Stacey[,] stepfather of Chelsea[,] was verbally abusive to the
child and assaulted her causing injuries. Stacey . . . further threatened to do further harm to
Chelsea . . . . Theresa[,] the mother of Chelsea[,] failed to protect the child.”
In February and March 2013, a hearing was held on the State’s amended petition. At the
hearing, Chelsea testified about the events of November 2, 2011. Chelsea’s testimony about the
incident is reflected above. In addition to Chelsea’s testimony, the State offered the testimony of
Alex, Chelsea’s boyfriend in November 2011. Alex testified that on the night of November 2,
Stacey physically assaulted Chelsea. He indicated that he saw Stacey throw a telephone at
Chelsea, slap Chelsea in the face, throw a vase across a table at Chelsea, and throw Chelsea
against a wall. Alex also testified that Theresa was present during these incidents and did not
intervene to stop Stacey or to protect Chelsea.
Theresa and Stacey also testified at the hearing. They both admitted that they were very
upset with Chelsea after learning that she was pregnant. However, both Theresa and Stacey
denied that Stacey physically assaulted Chelsea in any way. They denied that Stacey slapped
Chelsea or threw her against a wall. They testified that Stacey did push a vase across the kitchen
table out of frustration, but that he did not mean to hit Chelsea with the vase. Theresa testified
that Chelsea did suffer a black eye as a result of being hit with the vase, but that this was an
accident.
On April 11, 2013, the county court filed a journal entry adjudicating Chelsea to be a
child within the meaning of § 43-247(3)(a). Specifically, the court found that the State had
proven that Chelsea was in a situation dangerous to life or limb or injurious to her health or
morals as a result of the confrontation between Chelsea and Stacey on November 2, 2011. The
court specifically noted that it found the testimony of Chelsea and Alex to be credible and found
the testimony of Stacey to not be credible. In addition, the court stated its finding that Theresa
“allowed her child to be placed in a situation where she was harmed by an irate step parent.”
Theresa appeals from the county court’s order here.
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III. ASSIGNMENTS OF ERROR
Theresa argues that the county court erred in determining that the evidence was sufficient
to adjudicate Chelsea pursuant to the provisions of § 43-247(3)(a). Specifically, Theresa asserts
that the evidence presented at the adjudication hearing revealed that the injuries Chelsea
sustained on November 2, 2011, were the result of an accident and that Chelsea “should not
remain out of the home based on the disputed allegations on one occasion.” Brief for appellant
at 8.
IV. 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 Jagger L., 270
Neb. 828, 708 N.W.2d 802 (2006). When the evidence is in conflict, however, an appellate court
may give weight to the fact that the juvenile court observed the witnesses and accepted one
version of the facts over the other. Id.V. ANALYSIS
Theresa argues that the court erred in adjudicating Chelsea as a child within the meaning
of § 43-247(3)(a). Specifically, Theresa argues that the evidence presented at the adjudication
hearing demonstrated that Chelsea’s injuries were the result of an accident and not the result of
an intentional assault. In addition, she argues that there was insufficient evidence to demonstrate
that she failed to protect Chelsea in any way. After reviewing the record, we find no merit to
Theresa’s assertions on appeal.
Section 43-247(3)(a) grants the juvenile court jurisdiction over any juvenile
who is homeless or destitute, or without proper support through no fault of his or her
parent, guardian, or custodian; who is abandoned by his or her parent, guardian, or
custodian; who lacks proper parental care by reason of the fault or habits of his or her
parent, guardian, or custodian; whose parent, guardian, or custodian neglects or refuses to
provide proper or necessary subsistence, education, or other care necessary for the health,
morals, or well-being of such juvenile; whose parent, guardian, or custodian is unable to
provide or neglects or refuses to provide special care made necessary by the mental
condition of the juvenile; or who is in a situation or engages in an occupation dangerous
to life or limb or injurious to the health or morals of such juvenile[.]
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
§ 43-247. In re Interest of Brian B. et al., 268 Neb. 870, 689 N.W.2d 184 (2004). At this stage of
the juvenile court proceedings, in order for a juvenile 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 B.R. et al., 270 Neb. 685, 708 N.W.2d 586(2005); In re Interest of Rebekah T. et al., 11 Neb. App. 507, 654 N.W.2d 744 (2002).
The purpose of the adjudication phase of a juvenile proceeding is to protect the interests
of the child. The parents’ rights are determined at the dispositional phase, not at the adjudication
phase. In re Interest of Brian B. et al., supra.
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In the State’s amended petition, it alleged that Chelsea lacked proper parental care by
reason of the faults or habits of her parent and that she was in a situation or engaged in an
occupation dangerous to life or limb or injurious to her health or morals because “[o]n or about
November 2, 2011, Stacey[,] stepfather of Chelsea[,] was verbally abusive to the child and
assaulted her causing injuries. Stacey . . . further threatened to do further harm to Chelsea . . . .
Theresa[,] the mother of Chelsea[,] failed to protect the child.” Upon our de novo review of the
record, we find that the State presented sufficient evidence to prove the allegations in the petition
by a preponderance of the evidence.
At the adjudication hearing, Chelsea testified that on the night of November 2, 2011,
Stacey pushed her into a chair; slapped her in the face multiple times; called her stupid; pushed a
heavy, “pottery” vase off of a table and toward her face; and “slammed” her up against a wall. It
is clear from our record that Chelsea suffered visible injuries as a result of Stacey’s actions. She
had a black eye and bruises on her body days after the incident. Chelsea also testified that
Theresa was present during these incidents and did not intervene to protect her. In fact, Chelsea
testified that Theresa did not even make sure that Chelsea was alright after the vase hit her and
caused her eye to bleed.
Alex’s testimony at the adjudication hearing was very similar to Chelsea’s testimony. He
testified that on the night of November 2, 2011, Stacey physically assaulted Chelsea. He
indicated that he saw Stacey throw a telephone at Chelsea, slap Chelsea in the face, throw a vase
across a table at Chelsea, and throw Chelsea against a wall. Alex also testified that Theresa was
present during these incidents and did not intervene to stop Stacey or to protect Chelsea.
This evidence, taken together, is sufficient to prove by a preponderance of the evidence
the State’s allegations that Chelsea lacked proper parental care and was in a situation dangerous
to life or limb or injurious to her health or morals. The evidence reveals that on November 2,
2011, Stacey verbally and physically assaulted Chelsea. In addition, the evidence reveals that
Theresa failed to intervene and protect Chelsea from Stacey’s assault.
We recognize that Theresa presented conflicting evidence about what occurred on the
night of November 2, 2011. However, the county court found such evidence to not be credible.
In fact, the county court specifically stated that it found Stacey’s testimony about the events of
that night to not be “credible in light of the weight of the vase and the testimony of the other
parties.” In addition, the court found “the testimony of Alex . . . to be credible.” We give
deference to the juvenile court’s decision to reject Theresa’s version of events. See In re Interest
of B.R. et al., 270 Neb. 685, 708 N.W.2d 586 (2005). When the evidence is in conflict in a
juvenile case, an appellate court may give weight to the fact that the lower court observed the
witnesses and accepted one version of the facts over another. Id.Reviewing the evidence in its totality, we conclude that the record supports the county
court’s finding that Chelsea comes within the meaning of § 43-247(3)(a). The evidence is
sufficient to prove by a preponderance of the evidence that on the night of November 2, 2011,
Chelsea lacked proper parental care and was in a situation dangerous to life or limb or injurious
to her health and morals, as the State’s petition alleges.
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VI. CONCLUSION
Upon our de novo review of the record, we find sufficient evidence to support the county
court’s finding that it had jurisdiction over Chelsea, and we affirm the order to adjudicate her
under § 43-247(3)(a).
AFFIRMED.
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