In re Interest of Draygon W. , 31 Neb. Ct. App. 400 ( 2022 )

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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
IN RE INTEREST OF DRAYGON W. ET AL.
Cite as 31 Neb. App. 400In re Interest of Draygon W. et al., children
under 18 years of age.
State of Nebraska, appellee, v. Robert L.,
appellant, and Dejah L., appellee.
___ N.W.2d ___
Filed October 4, 2022. No. A-21-387.
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. When the evidence is in conflict,
however, 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.
2. Parental Rights. 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.
3. Parental Rights: Due Process. The fundamental liberty interest of
natural parents in the care, custody, and management of their child is
afforded due process protection.
4. Due Process: Words and Phrases. While the concept of due process
defies precise definition, it embodies and requires fundamental fairness.
5. Parental Rights: Due Process: Appeal and Error. 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
of erroneous decision given the procedures in use. Due process is flex-
ible and calls for such procedural protections as the particular situation
demands.
6. Parental Rights: Due Process. Due process considerations safeguard a
parent’s right to custody of the children, subject only to the State’s inter-
est in protecting the children from harm.
7. Juvenile Courts: Parental Rights. Although Neb. Rev. Stat. § 43-248(2)
(Reissue 2016) allows the State to take a juvenile into custody without
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IN RE INTEREST OF DRAYGON W. ET AL.
Cite as 31 Neb. App. 400a warrant or order of the court when it appears the juvenile is seriously
endangered in his or her surroundings and immediate removal appears
to be necessary for the juvenile’s protection, the parent retains a liberty
interest in the continuous custody of his or her child.
8. Juvenile Courts: Child Custody: Parental Rights. An ex parte order
subsequently authorizing temporary custody with the Department of
Health and Human Services is permitted because of its short duration
and the requirement of further action by the State before custody can
be continued.
9. Parental Rights: Notice. The State may not, in exercising its parens
patriae interest, unreasonably delay in notifying a parent that the State
has taken emergency action regarding that parent’s child nor unreason-
ably delay in providing the parent a meaningful hearing.
10. Juvenile Courts: Parental Rights: Time. A prompt detention hearing
is required in order to protect the parent against the risk of an erroneous
deprivation of his or her parental interests.
11. Juvenile Courts: Proof. Continued detention pending adjudication is
not permitted under the Nebraska Juvenile Code unless the State can
establish by a preponderance of the evidence at an adversarial hearing
that such detention is necessary for the welfare of the juvenile.
12. Appeal and Error. On appeal, a party cannot complain of error which
the party has invited the court to commit.
13. Statutes: Time: Minors. Neb. Rev. Stat. § 43-278 (Reissue 2016) pro-
vides that an adjudication hearing shall be conducted within 90 days
after a petition is filed. However, upon a showing of good cause, the
court may continue the case beyond the 90-day period.
14. ____: ____: ____. The 90 days to conduct a hearing after a petition is
filed, as set forth in Neb. Rev. Stat. § 43-278 (Reissue 2016), is direc-
tory, not mandatory. As such, the provision does not mandate that a case
be dismissed if the adjudication is not completed within 90 days.
15. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile at
the adjudication stage, 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 (Reissue 2016).
16. Juvenile Courts: Jurisdiction: Proof. While the State need not prove
that the child has actually suffered physical harm, Nebraska case law is
clear that at a minimum, the State must establish that without interven-
tion, there is a definite risk of future harm.
17. Parental Rights: Proof. The State must prove the allegations in a peti-
tion for adjudication filed under Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2016) by a preponderance of the evidence.
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IN RE INTEREST OF DRAYGON W. ET AL.
Cite as 31 Neb. App. 40018. Juvenile Courts: Jurisdiction. Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2016) sets forth numerous grounds by which the juvenile court could
take jurisdiction over a juvenile.
19. Juvenile Courts: Trial: Witnesses. The juvenile court, as the trier of
fact, was entitled to weigh the credibility of the witnesses.
20. Trial: Witnesses. In a bench trial, the judge sitting as the trier of fact is
the sole judge of the credibility of witnesses and the weight to be given
their testimony.
Appeal from the Separate Juvenile Court of Douglas County:
Candice J. Novak, Judge. Affirmed.
Robert L., pro se.
David Ceraso, Deputy Douglas County Attorney, and
Traemon Anderson, Senior Certified Law Student.
Thomas G. Incontro, guardian ad litem.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Robert L. appeals the order of the Douglas County Separate
Juvenile Court, which adjudicated his minor children and
stepchild under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).
Upon our de novo review of the record, we affirm.
BACKGROUND
Robert is the biological father of Korben L., born in April
2011; Arya L., born in April 2013; Sebastian L., born in August
2014; and Ronan L., born in September 2016, as well as the
stepfather of Draygon W., also known as Jade W. (Jade), born
in July 2006. Dejah L. is the biological mother of all five
children.
On May 30, 2019, law enforcement brought the children
to Project Harmony after Korben made statements at school
about physical abuse occurring at home. Jade, Korben, and
Arya were interviewed at Project Harmony. As a result of
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Cite as 31 Neb. App. 400disclosures made during the interviews, Dejah was arrested.
The children returned home with Robert, but the Department
of Health and Human Services (DHHS) implemented a safety
plan for the family, and there were ongoing services in the
home. The safety plan included requirements that Dejah could
not be alone with the children and that there could be no physi-
cal discipline. Robert subsequently posted Dejah’s bond, and
she was released from jail on June 2.
On October 8, 2019, Robert brought Jade to Project
Harmony based on a sexual assault allegation unrelated to
Dejah or Robert. Forensic interviews were conducted of Jade
and Korben. The children were removed from the home based
on disclosures made by Jade and Korben that physical abuse
had continued in the home, despite the safety plan, and based
on concerns of witness tampering as the children were wit-
nesses in Dejah’s criminal matter.
In October 2019, the State filed a petition alleging that the
minor children lacked proper parental care due to the faults
and habits of Dejah and were, therefore, within the meaning of
§ 43-247(3)(a). The juvenile court subsequently adjudicated the
children in regard to Dejah.
In December 2019, the State filed a supplemental petition
alleging that the children lacked proper parental care due to
the faults and habits of Robert and were within the meaning of
§ 43-247(3)(a). Specifically, the supplemental petition alleged
under count I that Robert failed to provide safe, stable, and/
or appropriate housing for the juveniles; Robert failed to pro-
vide proper parental care, support, and/or supervision for the
juveniles; Robert had left the juveniles with an inappropriate
caregiver; Robert had subjected the juveniles to inappropriate
physical touch; and for the above reasons, the juveniles were
at risk for harm.
An adjudication hearing was held in January 2021 in regard
to the supplemental petition. Jade testified in chambers at the
hearing. At the time of adjudication, Jade was 14 years old and
was in the 9th grade.
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IN RE INTEREST OF DRAYGON W. ET AL.
Cite as 31 Neb. App. 400Jade testified about the discipline and punishment in the
home, specifically by Robert. She stated that Robert would
spank her, Korben, Arya, and Sebastian with a belt. The spank-
ings occurred often and left marks around the area of the
buttocks. With regard to Robert’s spanking Jade, it occurred
“[q]uite frequently” and normally lasted around a minute.
Jade testified that the spankings occurred so frequently that it
became “a sort of fact of life.” Before the spankings, Robert
would tell her to bend over the couch and put her face into
the couch cushion. Jade would normally be wearing pants dur-
ing the spankings, but on several occasions, she did not have
pants on.
Jade also testified that Robert had thrown her across the
room on multiple occasions. In addition, when she was 9 or
10 years old, Robert sat on her back to prevent her from run-
ning while Dejah sat on the other side and spanked her with
a fly swatter. Robert had also instructed Jade’s siblings to sit
on her back, and she was then forced to do a large number of
pushups.
Jade testified that on one occasion, Robert hit her when she
was brushing her teeth. When she began to cry, Robert shook
her and told her to stop crying. She stated that Robert had
shaken her multiple times.
Jade also testified that Robert and Dejah would hit the chil-
dren with a plastic furniture post. She stated that Robert and
Dejah hit her with the post on numerous occasions (exceeding
10) and that they also hit her siblings with it. Robert would
hit the children on the buttocks, and the force was strong
enough to leave marks. Jade also testified that there were times
the children were sent to bed without food as punishment by
their parents.
Jade testified about other physical abuse by Dejah. She
testified that Dejah had slapped her across the face, shoved
her to the ground, and strangled her. She explained that when
Dejah strangled her, she would put her hand on Jade’s neck and
restrict her breathing. She stated that it happened three or four
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IN RE INTEREST OF DRAYGON W. ET AL.
Cite as 31 Neb. App. 400times. The abuse by Dejah occurred in the presence of Jade’s
siblings. She also testified that Dejah had slapped Korben,
Arya, and Sebastian.
Jade testified that she never discussed or reported the abuse
by Dejah to Robert because she believed he would have
been supportive of Dejah. She explained that because Robert
employed similar punishment practices, he would have seen
Dejah’s actions as normal or acceptable.
On cross-examination, Jade testified that after the May 2019
Project Harmony interview, Robert and Dejah were upset with
her about what she disclosed and she believed they wanted
her to recant her statements about the abuse and “say that
nothing happened and then that I was being overdramatic and
overreacting.”
Amy Cirian, the forensic interview program manager
for Project Harmony, conducted the May 2019 interviews
with Jade, Korben, and Arya. During Arya’s interview, she
told Cirian that her mother, Dejah, would strangle Jade and
Korben and would hit the children with objects and with her
hand. She also stated that Robert would spank the children
with a belt. Jade told Cirian that Dejah would strangle her
and that Robert would spank her with a belt. Korben also
told Cirian that Dejah had strangled him and that he had seen
Dejah strangle Jade. He also stated that his dad spanked him
with a belt. Cirian testified that the statements made by the
children during the forensic interviews were consistent with
each other.
Cirian also conducted forensic interviews with Sebastian
and Arya in October 2019. She testified that the purpose of the
interviews was to see if the abuse was still occurring and that
there was also concern the children were being coached by the
parents. Arya told Cirian that spankings had occurred since
the last interview in May, but no strangulation had occurred
that she was aware of. During Sebastian’s October interview,
which was his first, he talked about spankings and getting hit
with objects as punishment in the home. Cirian testified that
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Cite as 31 Neb. App. 400nothing disclosed in the October interviews contradicted the
disclosures in the May interviews.
Ashley Harris, a nurse practitioner and manager of the
medical department for Project Harmony, testified that she
completed a medical examination of Arya on October 8, 2019.
During the examination, Arya told Harris about physical abuse
at home. Arya said that sometimes when she gets in trouble,
she gets spanked or slapped by Robert or Dejah. Arya also told
Harris about an “ultimate punishment,” where Dejah pushes
Jade to the ground, grabs her neck, and chokes her. Arya fur-
ther revealed that the “ultimate punishment” can also include
getting punched in the nose. Arya told Harris she had watched
the ultimate punishment occur at least five times.
Marlene Rieder, a sergeant with the Omaha Police Department
in the special victims unit, testified that she observed Jade’s
forensic interview in October 2019. Rieder testified that during
the interview, Jade refused to answer questions about safety in
the home because her parents’ attorney told her not to answer
questions or talk about safety in the home. Following the
October 2019 interview, Rieder learned that there had been a
prior investigation in May, resulting in Dejah’s being arrested
for child abuse.
Rieder also spoke with Robert the day of Jade’s and
Korben’s October 2019 interviews. Rieder learned that Dejah
had returned home while she was out on bond. Robert told
Rieder that he did not believe the charges of abuse. He stated
he did not believe any abuse ever happened and that he would
know if his children were being abused. Rieder found it con-
cerning that Robert did not believe any abuse occurred in the
home, especially considering that all the children interviewed
disclosed the presence of abuse in the home, on two sepa-
rate occasions, 5 months apart. After Rieder’s discussion with
Robert, the children were removed from the home based on
Robert’s disbelief of the pending charges against Dejah and to
prevent the children from recanting their allegations.
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IN RE INTEREST OF DRAYGON W. ET AL.
Cite as 31 Neb. App. 400Kaitlin Hahn, a domestic violence supervisor with DHHS,
testified that she became involved with the case following the
removal of all the children from their residence on October 8,
2019. She testified that the removal was based on disclosures
of physical abuse made by Jade and Korben and concerns of
tampering with the children because they were witnesses in a
criminal matter. Hahn testified that despite the safety plan and
services that were implemented in May, the children still made
disclosures of the same type of abuse in October.
Hahn testified that in her opinion, the children would be at
risk of harm if returned to Robert’s home because he would
not protect them. In forming her opinion, she relied in part on
the May and October forensic interviews. She considered the
statements about physical abuse, including Jade’s and Korben’s
disclosures that Dejah had strangled them and concerns the
children had about Robert’s bailing Dejah out of jail. Hahn
testified that the concerns about witness tampering after the
initial disclosures in May 2019 also weighed into her opinion.
The children stated in the October interviews that they were
told not to discuss the abuse by their parents, which then led to
conversations with prosecutors concerning witness tampering.
Hahn also took into consideration Robert’s failure to believe
that Dejah had physically abused the children. Hahn found
that concerning because it showed Robert’s inability to protect
his children.
After the State rested, Robert testified in his own behalf.
Robert admitted to spanking Jade with his hand and with a
belt. Robert’s testimony regarding his method of spanking
Jade mirrored her testimony and her statements in her forensic
interviews. Robert testified that he spanked Jade with a belt
200 to 300 times over a 3- to 4-year period. Robert stated that
there were never any red marks after spanking his children,
but he admitted that he never checked. He acknowledged that
the children discussed red marks left from spankings in their
forensic interviews. Robert testified that he spanked Korben
and Arya with his hand on occasion, but did not spank them
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Cite as 31 Neb. App. 400with a belt. He also testified there were a few times he made
Jade carry a 20-pound weight around the house as punish-
ment. Robert denied ever throwing Jade across the room, but
explained that there was an exchange between them one time
that could have been perceived that way.
Robert and the children continued living with Dejah after
the children’s disclosures of abuse in May and October 2019.
Robert testified that he did not believe that physical abuse
occurred in the home. He also did not believe that Dejah
strangled any of the children. Robert denied ever seeing Dejah
choke any of the children or hit any of them with an object.
Despite Arya’s, Korben’s, and Jade’s disclosures that Dejah
choked them, Robert stated that he did not believe it occurred.
Robert testified that prior to the May 2019 allegations, he
had no reason to believe that Dejah was abusing the children,
and after the allegations were made, he did not believe the
children. At the time of the hearing, Robert continued to deny
that any abuse occurred, even after he had viewed the forensic
interviews with the children in May and October and had heard
Jade and Korben testify in the proceeding against Dejah. He
testified that he believed Dejah that no abuse occurred. He also
testified that Jade had a history of being dishonest and is good
at manipulating the other children.
Robert testified that Dejah was against any sort of physical
punishment. He stated there were a couple times she spanked
the children or imposed some form of physical punishment, but
it was rare, and usually at his urging.
He also testified that he was aware of Jade’s and Arya’s
allegation that the children would sit on Jade as she was forced
to do pushups, but he stated they did not sit on her as a punish-
ment. Robert also acknowledged that Arya described the “ulti-
mate punishment” and that she had observed Dejah impose the
punishment. Robert’s testimony failed to confirm or deny the
children’s statements, but, rather, it merely acknowledged that
they were made.
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Cite as 31 Neb. App. 400Robert also testified that after the May 2019 forensic inter-
views, he did not talk to the children about the allegations. He
stated that he was told by Dejah’s attorney, as well as indi-
viduals from the Omaha Police Department and DHHS, not
to discuss anything about the case with the children. Robert
testified there were two occasions when the children were
asking questions and he told them they could not talk about
the case.
In April 2021, following the adjudication hearing, the juve-
nile court found that the State had met its burden of proof
in regard to the allegations in the supplemental petition by a
preponderance of the evidence. It, therefore, adjudicated the
children as being within the meaning of § 43-247(3)(a). The
juvenile court found Jade’s testimony to be credible, reliable,
and probative, and it found Robert’s testimony misleading,
unreliable, and not credible.
ASSIGNMENTS OF ERROR
Robert, pro se, assigns 29 errors on appeal; however, the
“Arguments” section of Robert’s brief is presented as num-
bered paragraphs, with no separate headings or arguments to
correlate with any particular assigned error listed in the assign-
ments of error section. In order to be considered by an appel-
late court, an alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error. See U.S. Pipeline v. Northern Natural Gas Co., 303 Neb.
444, 930 N.W.2d 460 (2019). These briefing requirements
apply equally to represented litigants and pro se litigants. See
Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015)
(pro se litigant will receive same consideration as if he or she
had been represented by attorney, and concurrently, that litigant
is held to same standards as one who is represented by coun-
sel). Accordingly, we decline to address any assigned errors
which were not argued and supported in the arguments section
of Robert’s brief. Ultimately, we can only discern two issues
in Richard’s argument section of his brief that correlate to his
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Cite as 31 Neb. App. 400assigned errors: (1) His due process rights were violated by the
delay in holding a detention hearing and the delay in holding
an adjudication hearing, and (2) the court erred in finding there
was sufficient evidence to adjudicate the children. We will
address those two claims in our analysis.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. In re Interest of Ryder J., 283 Neb.
318, 809 N.W.2d 255 (2012). When the evidence is in conflict,
however, 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
Due Process Violations.
Robert first assigns his due process rights were violated by
the delay in holding a detention hearing and the delay in hold-
ing an adjudication hearing. He first argues that he was denied
custody of his children without due process when the children
were removed from the home on October 9, 2019, based on
allegations against Dejah, and a detention hearing was not held
until April 22, 2020.
[2-6] 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 Sloane O., 291 Neb. 892, 870 N.W.2d 110 (2015).
The fundamental liberty interest of natural parents in the care,
custody, and management of their child is afforded due process
protection. In re Interest of Mainor T. & Estela T., 267 Neb.
232, 674 N.W.2d 442 (2004). While the concept of due process
defies precise definition, it embodies and requires fundamental
fairness. Id. In deciding due process requirements in a particu-
lar case, we must weigh the interest of the parent, the inter-
est of the State, and the risk of erroneous decision given the
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Cite as 31 Neb. App. 400procedures in use. In re Interest of Sloane O., supra. Due proc­
ess is flexible and calls for such procedural protections as the
particular situation demands. Id. Due process considerations
safeguard Robert’s right to custody of the children, subject
only to the State’s interest in protecting the children from harm.
See id.
[7-11] Although Neb. Rev. Stat. § 43-248(2) (Reissue 2016)
allows the State to take a juvenile into custody without a war-
rant or order of the court when it appears the juvenile “is seri-
ously endangered in his or her surroundings and immediate
removal appears to be necessary for the juvenile’s protection,”
the parent retains a liberty interest in the continuous custody of
his or her child. In re Interest of Mainor T & Estela T., supra.An ex parte order subsequently authorizing temporary custody
with DHHS is permitted because of its short duration and
the requirement of further action by the State before custody
can be continued. Id. But the State may not, in exercising its
parens patriae interest, unreasonably delay in notifying a par-
ent that the State has taken emergency action regarding that
parent’s child nor unreasonably delay in providing the parent a
meaningful hearing. Id. A prompt detention hearing is required
in order to protect the parent against the risk of an erroneous
deprivation of his or her parental interests. Id. Continued deten-
tion pending adjudication is not permitted under the Nebraska
Juvenile Code unless the State can establish by a preponder-
ance of the evidence at an adversarial hearing that such deten-
tion is necessary for the welfare of the juvenile. In re Interest
of Mainor T. & Estela T., supra.In In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780(1991), disapproved on other grounds, O’Connor v. Kaufman,
255 Neb. 120, 582 N.W.2d 350 (1998), the Nebraska Supreme
Court recognized that parents have a due process right to be
free from an unreasonable delay in providing the parents a
meaningful hearing after an ex parte order for immediate cus-
tody is filed. The court concluded that the mother’s due process
rights were not violated by a 14-day delay between the entry of
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Cite as 31 Neb. App. 400an ex parte order and that of a detention order when she was
given an opportunity to be heard at the detention hearing and
was allowed to visit her children in the interim. But the court
cautioned that this 14-day delay between the ex parte order and
detention hearing was “on the brink of unreasonableness.” Id.
at 423, 470 N.W.2d at 792.
In the present case, the ex parte order was entered on
January 2, 2020, following the filing of the supplemental peti-
tion to adjudicate in regard to Robert. On January 3, the court
scheduled a detention hearing for January 13. This timeframe
was less than the 14-day “brink of unreasonableness” set forth
in In re Interest of R.G., supra. The detention hearing began
on January 13, but was continued to February 4, due to time
constraints. However, on January 14, the court entered an order
sustaining Robert’s motion for discovery. On January 30, the
court entered an order sustaining a joint motion of the par-
ties to continue the detention hearing scheduled for February
4 “for good cause shown due to difficulties in the Discovery
Process.” The detention hearing was set for March 25.
On March 18, 2020, the State filed a motion to continue the
detention hearing because of the COVID-19 pandemic. Robert
filed an objection. On March 24, the court entered a continu-
ance order for good cause due to the pandemic. On April 7, the
court set the detention hearing for April 22, and the detention
hearing took place that day. The court entered its order the
next day, finding that the children should remain in protec-
tive custody.
Robert argues that the juvenile court failed to timely hold
a detention hearing, thereby denying him custody during this
timeframe, in violation of his right to due process. Although
the ex parte order was entered on January 2, 2020, and the
detention hearing did not conclude until April 22, we conclude
that the delay in holding the detention hearing was not unrea-
sonable. Robert was initially granted a prompt detention hear-
ing on January 13, which was 11 days after the ex parte order
was entered. The detention hearing was continued because
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Cite as 31 Neb. App. 400the court ran out of time. The court promptly rescheduled the
hearing for February 4, but was unable to hold the detention
hearing on that date due to Robert’s request for discovery and a
subsequent joint motion by the parties to continue due to issues
with discovery.
[12] Stated another way, the court commenced a timely
detention hearing, and then rescheduled a timely hearing, which
was then continued by Robert who wanted to conduct discov-
ery. On appeal, a party cannot complain of error which the
party has invited the court to commit. In re Interest of Marquee
N., 30 Neb. App. 862, 974 N.W.2d 26 (2022). Because the
detention hearing was delayed as a result of Robert’s discovery
request, we conclude that his due process rights were not vio-
lated by the delay.
[13,14] Robert also contends that his due process rights
were violated by the delay in holding an adjudication hear-
ing. Neb. Rev. Stat. § 43-278 (Reissue 2016) provides that an
adjudication hearing shall be conducted within 90 days after a
petition is filed. However, upon a showing of good cause, the
court may continue the case beyond the 90-day period. This
court has held that § 43-278 is directory, not mandatory. See
In re Interest of Brianna B. & Shelby B., 9 Neb. App. 529, 614
N.W.2d 790 (2000). As such, the provision does not mandate
that a case be dismissed if the adjudication is not completed
within 90 days. Id.There were multiple factors that affected the delay in hold-
ing an adjudication hearing. One factor was the COVID-19
pandemic, which caused several continuances. Another fac-
tor causing delay was an appeal filed by Robert in May 2020
challenging the court’s April order that the children remain in
the temporary custody of DHHS. We ultimately determined
that the order being appealed from was not a final, appealable
order and dismissed the appeal. A petition for further review
was filed with the Supreme Court, further delaying an adju-
dication hearing. Another delay occurred as the result of the
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Cite as 31 Neb. App. 400retirement of the juvenile court judge who had been handling
the case and the reassignment of the case.
We conclude that good cause existed to extend the time-
frame beyond the 90-day period set forth in § 43-278 and
that the delay in the adjudication hearing did not deny Robert
due process.
Sufficiency of Evidence to Adjudicate.
Robert next assigns that the juvenile court erred in finding
that the State met its burden to prove the allegations in the
supplemental petition by a preponderance of the evidence and
as a result, adjudicating the children within the meaning of
§ 43-247(3)(a).
[15-17] To obtain jurisdiction over a juvenile at the adju-
dication stage, the court’s only concern is whether the condi-
tions in which the juvenile presently finds himself or herself
fit within the asserted subsection of § 43-247. In re Interest of
Lilly S. & Vincent S., 298 Neb. 306, 903 N.W.2d 651 (2017).
While the State need not prove that the child has actually suf-
fered physical harm, Nebraska case law is clear that at a mini-
mum, the State must establish that without intervention, there
is a definite risk of future harm. Id. The State must prove such
allegations by a preponderance of the evidence. Id.[18] Section 43-247(3)(a) sets forth numerous grounds by
which the juvenile court could take jurisdiction over a juvenile.
In re Interest of Jeremy U. et al., 304 Neb. 734, 936 N.W.2d
733 (2020). The grounds alleged in the supplemental petition
here, which the juvenile court found were proved by sufficient
evidence, included that the children lacked proper parental care
by reason of the faults or habits of Robert in that he failed to
provide safe, stable, and/or appropriate housing for the juve-
niles; he failed to provide proper parental care, support, and/
or supervision for the juveniles; he had left the juveniles with
an inappropriate caregiver; he had subjected the juveniles to
inappropriate physical touch; and for the above reasons, the
juveniles were at risk for harm.
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Cite as 31 Neb. App. 400[19,20] In reaching its decision that the State had proved
the allegations in the supplemental petition by a preponder-
ance of the evidence, the juvenile court found Jade’s testi-
mony, as well as the other State’s witnesses’ testimony, cred-
ible, probative, and entitled to weight. It found that Robert’s
testimony was misleading, unreliable, and not credible. Robert
contends that the court erred in finding his testimony was not
credible. The juvenile court, as the trier of fact, was entitled
to weigh the credibility of the witnesses. See In re Interest
of J.L.H., J.L.H., and R.H., 2 Neb. App. 40, 507 N.W.2d 641(1993) (in bench trial, judge sitting as trier of fact is sole
judge of credibility of witnesses and weight to be given their
testimony). When 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 the other. In re Interest of Michael R., 11 Neb. App.
903, 662 N.W.2d 632 (2003). Here, we give weight to the fact
that the juvenile court, after hearing Robert’s testimony, found
it not credible and accepted the State’s witnesses’ version of
the facts.
Based on our de novo review of the record, the State pre-
sented ample evidence to establish that the children are within
the meaning of § 43-247(3)(a). In May 2019, three of the
children disclosed that Dejah had physically abused them,
including choking or strangling two of the children, and Dejah
was subsequently arrested. Robert posted Dejah’s bond several
days later, and she was released from jail. He allowed her to
return home and did not acquire separate housing for himself
and the children. Despite a safety plan being in place, the chil-
dren disclosed that physical discipline was still occurring in
October. There were also concerns at that time that the children
were being told by Robert to recant their statements of abuse
or to not talk about the abuse further.
Most importantly, Robert chose not to believe any of the
children, even after all of them who were interviewed dis-
closed abuse by Dejah. He told Rieder, an Omaha Police
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IN RE INTEREST OF DRAYGON W. ET AL.
Cite as 31 Neb. App. 400Department sergeant, that in October 2019, he did not believe
Dejah ever physically abused the children. He also testified at
the adjudication hearing that he did not believe Dejah strangled
any of the children and did not believe that any physical abuse
ever occurred in the home. He further testified that Jade has
a history of being dishonest and is good at manipulating her
siblings. Based on Robert’s refusal to believe his children, he
has failed to protect them.
In addition to the evidence of Dejah’s abuse and Robert’s
failure to believe his children, there was evidence of Robert’s
using physical discipline, including spanking the children with
a belt, forcing Jade to do pushups with her siblings sitting on
her back, hitting the children with a plastic post, and slapping
the children.
Based on the foregoing, we find that the juvenile court did
not err in finding sufficient evidence to adjudicate the children
under § 43-247(3)(a).
CONCLUSION
We conclude that the juvenile court did not err in adjudicat-
ing the children in regard to Robert. Accordingly, the court’s
order is affirmed.
Affirmed.