In re Interest of Kelsey B. ( 2017 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF KELSEY B.
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 KELSEY B., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLANT,
V.
DANIEL H., APPELLEE.
Filed September 26, 2017. No. A-17-260.
Appeal from the Separate Juvenile Court of Douglas County: ELIZABETH CRNKOVICH,
Judge. Reversed and remanded for further proceedings.
Donald W. Kleine, Douglas County Attorney, and Patrick C. McGee for appellant.
Brady J. Hoekstra for appellee.
MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
BISHOP, Judge.
The State filed a supplemental petition alleging that Kelsey B. was a child as defined by
Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) through no fault of her father, Daniel H. The
separate juvenile court of Douglas County did not accept Daniel’s plea, and after a subsequent
evidentiary hearing wherein the court did not allow the State to call Daniel as a witness, it
dismissed the supplemental petition, finding there was insufficient evidence to support the
allegations. The State appeals, claiming the court erred by not allowing Daniel to be called as a
witness by the State. We reverse and remand for further proceedings.
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BACKGROUND
Kelsey, born in 2001, is the daughter of Daniel and Elizabeth W. On October 27, 2016, she
was removed from Elizabeth’s care and custody because Elizabeth subjected her to inappropriate
physical discipline. Pursuant to an ex parte order, Kelsey was placed in the temporary custody of
the Nebraska Department of Health and Human Services (DHHS), and into foster care.
The State filed a petition on October 28, 2016, alleging that Kelsey was a child as defined
by § 43-247(3)(a) because she lacked proper parental care by reason of the faults or habits of
Elizabeth. Because Elizabeth is not part of this appeal, she will only be discussed as necessary.
On November 10, 2016, the State filed a supplemental petition alleging that Kelsey was a
child as defined by § 43-247(3)(a) because she was homeless or destitute, or without proper support
through no fault of Daniel, in that:
A. On or about October 31, 2016, Daniel H[.] reported that he was not able to
control [Kelsey’s] behaviors including running away, truancy, inappropriate sexual contact
via internet with grown men, drug activity, stealing, suicidal ideations and attempts,
throwing things in the home, physical altercations with siblings, and refusing to stay home.
B. [Kelsey] does not want to return to [Daniel’s] home.
C. Daniel H[.] is unable [sic] provide the necessary level of care and supervision to
maintain [Kelsey] in his home.
D. Due to the above allegations, [Kelsey] is at risk for harm[.]
The State also filed an ex parte motion for immediate temporary custody of Kelsey on November
10, which was granted by the court.
In December 2016, Kelsey was adjudicated to be within the meaning of § 43-247(3)(a)
based on Elizabeth’s admissions to allegations in the petition.
An adjudication hearing on the supplemental petition was held on January 5, 2017. Daniel
admitted the allegations in the supplemental petition entirely. In its factual basis, the State noted
Kelsey was 15 years old, and at the time of filing she resided in Douglas County, Nebraska. The
State then offered exhibit 2, which was received into evidence without objection. Exhibit 2, was
the November 9, 2016, “affidavit for removal of minor child from parental/custodial home”
authored by Mary Potmesil, a children and family specialist with DHHS (this is the same affidavit
that was attached to the State’s ex parte motion for immediate temporary custody filed on
November 10, the date the supplemental petition was also filed). The affidavit states:
....
2. On or about 10/27/2016, Kelsey was removed from her mother . . . due to
physical abuse and placed in kinship foster home . . . .
3. After removal on 10/27/2016, Kelsey was not placed with her father Daniel H[.]
due to Kelsey reporting that she had been kicked out of the home in February of 2016, in
spite of Daniel H[.] having sole custody of Kelsey, and been [sic] residing with [her
mother] ever since. Daniel H[.] stated that Kelsey had run in February, and that when police
had been contacted, they suggested Kelsey go to [her mother’s] home. [The mother]
reported that Daniel had contacted her and stated that he was unable to control Kelsey’s
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behaviors. Kelsey stated she did not wish to go back to Daniel’s home when placement
was being considered. Kelsey has refused all but initial scheduled visits with Daniel H[.]
4. On or about 10/31/2016, Daniel [H.] stated to CFSS Potmesil that he loved
Kelsey and would like her in his home, but that he was not able to control Kelsey’s
behaviors including running away, truancy, inappropriate sexual contact via internet with
grown men, drug activity, stealing, suicidal ideations and attempts, throwing things in the
home, physical altercations with siblings, and refusing to stay in the home when living
there. Daniel H[.] stated he felt the best option for Kelsey’s placement was where she could
have full care and full time supervision, being able to talk with someone when she needs
to, and being removed from the entire situation with [her mother].
5. That there was no appropriate person for [Potmesil] to release [Kelsey] to which
[sic] could provide for [Kelsey’s] safety and stability.
6. That in the opinion of [Potmesil], . . . placement of [Kelsey] into temporary foster
care is a matter of immediate and urgent necessity for the protection and safety of [Kelsey]
and that this situation presented a safety issue to [Kelsey] and precluded reasonable efforts
to allow [her] to remain in the parental/custodial home.
The Court asked Daniel’s counsel if he accepted the factual basis, and counsel responded, “Yes,
Your Honor.”
The following conversation then took place between the court and the State.
THE COURT: . . . [Y]our allegation is that Daniel H[.] reported that he’s not able
to control the child’s behaviors. Are you asking that I make a finding simply that he
reported this or that he was not able to control the child’s behaviors?
[The State]: That he was not able to, Your Honor.
THE COURT: All right. And where in Exhibit [2] does it tell me, other than his
statement, why he was not able to do this?
[The State]: Judge, it is not contained in the exhibit. However --
THE COURT: Then you have not provided the Court a factual basis. You have
merely provided the Court a conclusion.
[The State]: Well, Judge, the evidence would be that he has reported to HHS that
he’s unable to control the child.
THE COURT: Did he say why he was unable? Isn’t that at the heart of taking
jurisdiction?
[The State]: Judge, I feel that the evidence is sufficient.
THE COURT: I am telling you it is not. His mere statement that he is not able to
care for her is not proof that he is not able to care for her. . . . [Y]ou have not provided a
factual basis.
The court noted the State had provided no evidence of what efforts Daniel made to address
Kelsey’s behavior, including counseling, evaluations, structure, or support. It was not willing to
make a finding that Daniel was unable to care for Kelsey by “the mere statement he made that he
was unable to.” The juvenile court did not accept Daniel’s plea, as noted in its order filed on
January 9, 2017. The adjudication hearing was continued to February 21.
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At the adjudication hearing on February 21, 2017, two witnesses testified for the State.
Potmesil testified she is an initial assessment worker with DHHS and investigates intakes of child
abuse and neglect. On October 27, 2016, Potmesil received an intake alleging Kelsey (15 years
old) had been physically abused by her mother, and Potmesil conducted an investigation. When
she contacted Daniel the night of Kelsey’s removal, he explained there were circumstances
preventing Kelsey from being in his home. Daniel explained that if he tried to enforce house rules
Kelsey would run away, she had run away numerous times leading him to contact the police seven
times, she had missed multiple days of school, and she was engaging in risky behavior. Daniel had
also previously called child protective services about Kelsey’s behaviors (Potmesil did not know
the dates of those calls, and the record is not clear as to whether those calls resulted in
investigations). After conducting an investigation, Potmesil authored an affidavit for removal of
Kelsey. That affidavit (exhibit 2) was again received into evidence without objection. (This is the
same exhibit received at the hearing on January 5, 2017, the content of which was set forth
previously.) Potmesil opined that Kelsey’s behaviors put her at risk if she were back in Daniel’s
home because “she’s not willing and/or able to follow the rules of the house, if she’s running away,
if she’s engaging in sexual activity, . . . she was hanging around with people that were utilizing
drugs. . . . [D]ue to her age, he couldn’t force her to comply with household rules[.]” Potmesil
further opined that Kelsey’s removal was not Daniel’s fault.
A pediatric nurse practitioner from Project Harmony also testified. She performed a
forensic examination of Kelsey on October 27, 2016, following a report that Kelsey had been
physically abused by her mother. The exam report (exhibit 9) was received into evidence without
objection. The report notes Kelsey was pregnant at the time. The nurse practitioner testified that
during the exam, Kelsey reported she had lost weight, had not been eating well, and thought she
had an eating disorder. She also reported she had intentionally ingested pills that summer with the
intention of killing herself (Kelsey said her mother forced her to vomit but did not seek medical or
mental health care for Kelsey). Kelsey continued to struggle with thoughts of hurting herself and
has a history of “cutting,” having last done so within two weeks of the exam. She also reported
regular use of alcohol and marijuana. Regarding school attendance, Kelsey told the nurse
practitioner she does not remain at school for a full day, instead, she walks into the front door of
school and then goes out the back door. The nurse practitioner believed Kelsey should restart
mental health therapy, and would likely need a full mental health evaluation.
The State then attempted to call Daniel as a witness, but the court said, “You cannot call
him. He is the dad.” After an off-the-record discussion, the following occurred on the record:
[The State]: Judge, that is all of my evidence at this time, with the exception of
[Daniel].
THE COURT: And you have indicated on the record you would like to make an
offer of proof of what he would testify [sic] if called to testify?
[The State]: Yes, Judge.
THE COURT: And I said you may do so at the conclusion of the hearing. Unless
his attorney objects and then I will have to rule on that. But you are resting otherwise?
[The State]: Yes, Judge.
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Daniel’s counsel and the guardian ad litem both stated they had no evidence to present. The State
then said it would still like to make an offer of proof as to what Daniel would testify to. The court
responded, “I heard you, and I did tell you you are welcome to do that when the matter is
concluded. I suspect you are misunderstanding. An offer of proof is not something this Judge will
consider as evidence.” The court continued, “I think you do not need to ask repetitively.” The court
then stated it was dismissing the supplemental petition “for lack of evidence under the no-fault.”
It reasoned as follows.
Number one, this individual has custody, but he allowed this child to reside with
her mother repeatedly. There is testimony that he called the police. There is testimony that
she has many challenging mental health issues, which would be clear based on the behavior
that has been testified to. There is no evidence, other than calling the police occasionally,
of what steps, if any, [Daniel] took. There is no evidence that he tried to get her into
counseling. There is no evidence that he had her hospitalized. There is no evidence that he
consulted with school official about her truancies. None.
Additionally, the testimony presented by the State shows that indeed she needs
mental health evaluations. There is no evidence that indicates that [Daniel] is unable, either
financially, psychologically, or in any other way, to get her the evaluations that she needs.
The evidence of [DHHS] focused solely on the child’s behaviors. This is not a petition
under a 3B. Neither is it a delinquency petition.
The evidence does not support that this child comes within the meaning of
[§ 43-247(3)(a)(1)] because she is homeless, destitute, or without proper support through
no fault of Daniel H[.] Therefore, it is dismissed for lack of evidence.
We are adjourned.
The State once again asked to make its offer of proof, but the court responded:
We are adjourned.
I do not know what you are doing . . . I think you are kind of trying to set me up
here. But it is quite offensive, your obnoxiousness in this regard in this case. You would
be wise to stop.
You may do your offer of proof as I directed when we are adjourned and when I
have left.
After the judge said “[w]e are adjourned” and left the courtroom, the State made its offer of proof.
It stated that, if allowed, Daniel would have testified he reported Kelsey missing at least six times
and made numerous police reports that did not result in a “missing report”; he called child
protective services because he did not know what to do; he sought group home placement for
Kelsey on two occasions, one of which was denied because Kelsey sabotaged the interview; he
sought services at Girls Incorporated, due to Kelsey’s running away and defiance; he made
numerous contacts with Kelsey’s teachers and school counselor; and he set up a therapy
appointment(s) for Kelsey, which she missed due to her running behaviors.
In its order filed on February 21, 2017, the juvenile court dismissed the supplemental
petition for lack of evidence. The State has timely appealed the juvenile court’s order.
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ASSIGNMENT OF ERROR
The State assigns, summarized, that the juvenile court erred when it refused to allow Daniel
to testify.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches a conclusion
independently of the juvenile court’s findings. In re Interest of Isabel P. et al., 293 Neb. 62, 875
N.W.2d 848 (2016).
ANALYSIS
The State does not assign as error or argue that the juvenile court should have accepted
Daniel’s plea at the hearing on January 5, 2017. Nor does the State assign or argue that, even
without Daniel’s testimony, there was sufficient evidence presented at the February 21 hearing to
establish that Kelsey was a child within the meaning of § 43-247(3)(a) because she was homeless
or destitute, or without proper support through no fault of Daniel. The State also does not challenge
the juvenile court’s handling of the offer of proof.
The State only challenges the court’s “refus[al]” to allow Daniel to testify as a witness for
the State. Brief for appellant at 13. The State argues that as a party to the case, Daniel had a right
to testify and the State had a right to compel him to testify. It further argues Daniel made no
objections to being called as a witness, and there was no other basis for the court to exclude his
testimony. The State asks this court to vacate the order to dismiss, and remand the matter back to
the juvenile court to hear the testimony of Daniel.
As detailed above, when the State attempted to call Daniel as a witness, the juvenile court
said, “You cannot call him. He is the dad.” We are unaware of any authority allowing the court to
sua sponte prohibit the State from calling Daniel as a witness. As noted above, when called by the
State as a witness, Daniel made no objection to testifying.
Daniel argues the juvenile court did not err in refusing to compel him to testify because the
testimony the State would have sought from him “might have tended to prove him guilty of a
crime,” like child neglect. Brief for appellee at 11. However, we do not get to the merits of Daniel’s
argument because he never had the opportunity to invoke, or not invoke, his privilege against
self-incrimination at the trial court level. See, U.S. Const. amend V; Neb. Const. art. I, § 12; Neb.
Rev. Stat. § 25-1210 (Reissue 2016) (“When the matter sought to be elicited would tend to render
the witness criminally liable or to expose him or her to public ignominy, the witness is not
compelled to answer, except as provided in section 27-609.”). In order for Daniel to invoke this
privilege, he must first be asked a question which, if answered, would tend to render him criminally
liable. See In re Interest of M.S., 218 Neb. 889, 895, 360 N.W.2d 478, 482 (1984) (“We now
conclude that, absent questions which would subject the parent to criminal sanctions, a proceeding
to terminate parental rights does not trigger the protection afforded by the fifth amendment against
self-incrimination. No incriminating questions were asked of the mother in this case.”). See, also,
In re Interest of Clifford M. et al., 6 Neb. App. 754, 577 N.W.2d 547 (1998) (Fifth Amendment
privilege not only permits person to refuse to testify against himself or herself during criminal trial
in which he or she is defendant, but also privileges him or her to refuse to answer questions put to
him or her in any other proceeding, civil or criminal, formal or informal, where answers might
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tend to incriminate him or her in future criminal proceedings). Because the court sua sponte did
not allow the State to call Daniel as a witness, he was never asked such a question and thus was
not given the opportunity to invoke, or not invoke, the privilege of self-incrimination. See State ex
rel. Beck v. Lush, 168 Neb. 367, 95 N.W.2d 695 (1959) (to avoid waiver of § 25-1210, objections
based on statute must be made when witness is confronted with question or interrogatory seeking
such information). The privilege of self-incrimination therefore could not have been a basis for the
juvenile court’s decision to not allow the State to call Daniel as a witness.
For the reasons stated above, we find no basis for the juvenile court’s decision to prohibit
the State from calling Daniel as a witness. We therefore reverse the order to dismiss, and remand
the matter back to the juvenile court for further proceedings. Because Daniel neither objected to
being called as a witness, nor had an opportunity to invoke, or not invoke, the privilege of
self-incrimination, we need not address whether the State could compel Daniel to testify. In re
Interest of Carmelo G., 296 Neb. 805, 896 N.W.2d 902 (2017) (appellate court not obligated to
engage in analysis not necessary to adjudicate case and controversy before it).
CONCLUSION
For the reasons stated above, we reverse the juvenile court’s dismissal of the supplemental
petition and remand the matter for further proceedings.
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
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