In re Interest of Christian A. & Brysen A. ( 2014 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IN RE INTEREST OF CHRISTIAN A. & BRYSEN A.
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 CHRISTIAN A. AND BRYSEN A., CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
JESSE A., APPELLANT.
Filed January 7, 2014. No. A-13-412.
Appeal from the Separate Juvenile Court of Lancaster County: ROGER J. HEIDEMAN,
Judge. Affirmed.
Matt Catlett for appellant.
Joe Kelly, Lancaster County Attorney, and Daniel J. Zieg for appellee.
IRWIN, PIRTLE, and BISHOP, Judges.
PIRTLE, Judge.
INTRODUCTION
Jesse A. appeals from two orders of the separate juvenile court of Lancaster County
adjudicating his two minor children as juveniles within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2008). Based on the reasons that follow, we affirm.
BACKGROUND
Jesse and Savannah A. were married on January 15, 2010, and are the parents of
Christian A., born in May 2011, and Brysen A., born in February 2013. On February 20, 2013,
the State filed a petition alleging that Christian was a juvenile as defined by § 43-247(3)(a) on
two counts: (1) that he lacked proper parental care by reason of the faults or habits of his mother,
Savannah, or was in a situation dangerous to his life or limb or injurious to his health or morals,
in view of the fact Savannah engaged in a physical altercation with Jesse on January 16 in
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Christian’s presence, and that the actions of Savannah, and/or the situation of Savannah’s being
exposed to Jesse, places Christian at risk of harm, and (2) that Christian lacked proper parental
care by reason of the faults or habits of his father, Jesse, or was in a situation dangerous to his
life or limb or injurious to his health or morals, in view of the fact Jesse engaged in a physical
altercation with Savannah on January 16 in Christian’s presence, and that the actions of Jesse,
and/or the situation of Jesse’s being exposed to Savannah, places Christian at risk of harm.
A hearing on the State’s petition was held on April 8, 2013. The juvenile court granted
the State leave to file an amended petition, which added Brysen as a juvenile as defined by
§ 43-247(3)(a) on the same counts as alleged in the original petition. Jesse entered a denial to the
allegations in count two of the amended petition. Savannah entered a plea of no contest to the
allegations in count one. A factual basis was presented to support the plea, and the court accepted
Savannah’s no contest plea.
After accepting Savannah’s plea, the State asked that the Department of Health and
Human Services (the Department) be given legal custody of Christian and Brysen, with physical
custody remaining with Savannah. The court asked the State if it had any additional evidence in
support of its request. The State then called Sarah Birney, an employee of the Department who
was familiar with the case. Birney testified that the Department was concerned that Jesse might
have some “drug issues.” She testified that as a result of the drug use concerns, the Department
had instituted a safety plan limiting Jesse’s visits with the children to visits at Savannah’s home
supervised by Savannah’s mother. Birney testified that the caseworker had given Jesse an
opportunity to do a walk-through of his home to see if it was appropriate for visitations and that
he had refused. Birney also testified that Savannah had reported to the Department that Jesse had
been harassing her about allowing visitation. Birney testified that due to the allegations of
domestic violence, the Department felt that supervised visitation was necessary to observe how
Jesse behaved around the children and to ensure the situation was safe for them pending further
assessments of Jesse.
Birney also testified that the Department normally asks for legal custody of minor
children at disposition so that it has access to the children and for the children’s safety and
protection. She testified that the Department was in favor of it being given legal custody of
Christian and Brysen for their safety and protection based on the allegations of domestic violence
and drug use.
Following the April 8, 2013, hearing, the juvenile court entered an order finding that the
allegations against Savannah in count one were true by a preponderance of the evidence and
adjudicating Christian and Brysen. It also ordered that temporary legal custody of the children be
placed with the Department, with Savannah having physical custody. The court set a formal
hearing in regard to the allegations in count two against Jesse. The court also ordered Jesse to
cooperate with a walk-through of his residence, if he wanted to have visits take place there, and
to cooperate with random drop-ins by the Department when he had the children.
On April 12, 2013, the State filed a second amended petition which included the same
allegations against Jesse as in the amended petition, with one additional allegation--that Jesse
had used marijuana on one or more occasions in the presence of one or both of the children.
A hearing on the second amended petition was held on April 23, 2013. Savannah testified
that she and Jesse engaged in a physical altercation on January 16, 2013. She testified that she
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and Jesse had separated a few weeks before the incident and were still separated at the time of
the hearing. Savannah testified that on the date in question, she and Christian had gone with
Jesse to the store and on the way home Savannah found a woman’s wallet and identification in
the glove compartment of Jesse’s truck. When they arrived back at Savannah’s residence, she
confronted him about it while they were still in the truck. Jesse told Savannah that the items
belonged to his girlfriend. Savannah testified that she was upset and that she responded by
slapping Jesse on the shoulder with an open hand. Savannah testified that she got out of the truck
and was getting Christian’s car seat from the back seat, when Jesse called her a “dumb bitch,”
called her a “piece of [crap],” and said that he regretted marrying her. She also testified that Jesse
punched her in the left jaw when she either was getting the car seat or was reaching for Christian,
who was sitting on Jesse’s lap.
Savannah testified that Christian was upset and started crying during the argument. She
testified that this was not the first physical altercation Christian had witnessed between her and
Jesse. She testified that Christian, who was 20 months old at the time, had witnessed more than
20 physical altercations between them.
At the time of the incident at issue, Savannah was about 30 or 31 weeks pregnant with
Brysen. Savannah testified that Jesse knew she was pregnant and that some of their other
physical altercations had occurred while she was pregnant with Brysen.
Savannah also testified that she and Jesse smoked marijuana together and that Jesse
would try to get her to smoke it with him almost every day. She testified that they would smoke
marijuana in their one-bedroom apartment, sometimes in the bathroom and other times in the
apartment in front of Christian. She testified that she has smoked marijuana at least five times in
front of Christian and that Jesse smoked marijuana “a lot” and often in Christian’s presence.
Jesse also gave his account of the altercation on January 16, 2013. He testified that after
returning from the store, Savannah confronted him about his girlfriend’s identification card that
she found in the glove compartment of his truck. He testified that Savannah was angry and was
yelling at him. Jesse testified that Savannah reached across the front seat and hit him on the right
side of his face with a closed fist. He testified that Christian was sitting on his lap at the time.
Jesse testified that Savannah got out of the truck and that while reaching in the back seat for
Christian’s car seat, she found hair gel and squirted it all over the inside of his truck. He testified
that at no time did he raise his voice or swear at Savannah and that he just told her to get out of
the truck. He also denied hitting Savannah.
Jesse testified that the January 16, 2013, incident was the first physical altercation
between him and Savannah, but that they have had a lot of verbal arguments with raised voices.
Jesse admitted smoking marijuana in the past, but denied ever smoking at home and
denied ever smoking it in the presence of his children.
A friend of Jesse’s testified that he was sitting in the back seat of Jesse’s truck during the
altercation on January 16, 2013. He testified that Savannah got upset after finding Jesse’s
girlfriend’s wallet and identification in the truck. He testified that she “punched” Jesse in the face
and then squirted hair gel in the truck. Jesse’s friend testified that Christian was sitting on Jesse’s
lap when Savannah punched Jesse. He testified that Jesse told Savannah to get out of the truck,
but that Jesse did not swear at her or raise his voice. He also testified that Jesse did not hit or
strike her.
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Following the hearing, the juvenile court entered an order finding the allegations against
Jesse in count two in the second amended petition were true by a preponderance of the evidence
and found that Christian and Brysen were children as defined by § 43-247(3)(a). The court
ordered Jesse to participate in a pretreatment assessment.
ASSIGNMENTS OF ERROR
Jesse assigns, restated, that the juvenile court erred in (1) adjudicating Christian and
Brysen based on the allegations in count one against Savannah, (2) giving the Department
temporary legal custody of Christian and Brysen, (3) ordering Jesse to cooperate with a
walk-through of his residence and cooperate with random drop-ins by the Department, and (4)
adjudicating Christian and Brysen based on the allegations against Jesse in count two.
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 trial court’s findings; however, where the evidence is in
conflict, the appellate court will consider and may give weight to the fact that the trial court
observed the witnesses and accepted one version of the facts over another. In re Interest of
Damien S., 19 Neb. App. 917, 815 N.W.2d 648 (2012).
ANALYSIS
Adjudication Based on Allegations
Against Savannah.
Jesse first assigns that the juvenile court erred in adjudicating Christian and Brysen based
on the allegations in count one against Savannah because there was insufficient evidence to
support the adjudication. We disagree.
The purpose of the adjudication phase is to protect the interests of the child. The
Nebraska Juvenile Code does not require the separate juvenile court to wait until disaster has
befallen a minor child before the court may acquire jurisdiction. 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 intervention, there is a definite risk of future harm. The
State must prove such allegations by a preponderance of the evidence. In re Interest of Justine J.
et al., 286 Neb. 250, 835 N.W.2d 674 (2013).
Savannah pled no contest to the allegations in count one, and a factual basis to support
the plea was presented to the court. The evidence consisted of an incident report by the Lincoln
Police Department that resulted from the domestic dispute that occurred on January 16, 2013.
The report described an altercation between Jesse and Savannah that took place in Jesse’s
vehicle, while Christian was present and sitting on Jesse’s lap. The report contains different
versions of what happened as reported by Savannah, Jesse, and Jesse’s friend. However, it is
clear from the incident report that Christian witnessed some sort of physical altercation between
his parents, whether it was just Savannah hitting Jesse or Jesse also striking Savannah. The
evidence established that there was a definite risk of future harm to Christian and thus, provided
a sufficient factual basis to support Savannah’s plea and the adjudication of Christian.
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Jesse also argues that the altercation between Savannah and Jesse on January 16, 2013,
was not grounds to adjudicate Brysen because he was not yet born at that time. Although Brysen
was not physically harmed during the January 16 incident, as previously noted, the State does not
have to prove that the child suffered physical harm, it must only establish that there is a definite
risk of future harm. See In re Interest of Justine J. et al., supra. Physical violence between
Savannah and Jesse, occurring only a month before Brysen was born, posed a definite risk of
future harm to Brysen. We conclude that there was sufficient evidence to support the court’s
adjudication of Brysen. Jesse’s assignment of error is without merit.
Legal Custody.
Jesse next assigns that the juvenile court erred in giving the Department temporary legal
custody of the children. He argues that there was no advance notice of the motion by the State,
that there was insufficient evidence that such an award was necessary, and that the court
impermissibly permitted counsel for the Department to participate in the hearing on the State’s
motion.
In regard to Jesse’s allegation of no advance notice, such notice was not required. Once
the juvenile court adjudicated Christian and Brysen as children within the meaning of
§ 43-247(3)(a), the court had jurisdiction over the children and could determine their placement,
including legal and physical custody. Neb. Rev. Stat. § 43-284 (Reissue 2008) provides that
when any juvenile is adjudged to be under § 43-247(3), “the court may permit such juvenile to
remain in his or her own home subject to supervision or may make an order committing the
juvenile to . . . (6) the care and custody of the Department.” The juvenile court has broad
discretion as to the disposition of those who fall within its jurisdiction. In re Interest of T.T., 18
Neb. App. 176, 779 N.W.2d 602 (2009).
The foremost purpose and objective of the Nebraska Juvenile Code is to promote and
protect the juvenile’s best interests, and the code must be construed to assure the rights of all
juveniles to care and protection. In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214(2012). Once a child has been adjudicated under § 43-247(3), the juvenile court ultimately
decides where a child should be placed. In re Interest of Karlie D., supra. Juvenile courts are
accorded broad discretion in determining the placement of an adjudicated child and to serve that
child’s best interests. Id.
In regard to Jesse’s argument that there was insufficient evidence to support giving the
Department legal custody, the State provided testimony from Birney in support of its request.
Birney testified that the Department was concerned that Jesse might have some “drug issues.”
She testified that as a result of the drug use concerns, the Department had instituted a safety plan
limiting Jesse’s visits with the children to supervised visits. Birney testified that the caseworker
had given Jesse an opportunity to do a walk-through of his home to see if it was appropriate for
visitations and that he had refused. Birney also testified that Savannah had reported to the
Department that Jesse had been harassing her about allowing visitation.
Birney also testified that the Department normally asks for legal custody of minor
children at disposition so that it has access to the children and for the children’s safety and
protection. She testified that the Department was in favor of being given legal custody of
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Christian and Brysen for their safety and protection based on the allegations of domestic violence
and drug use.
As previously noted, the court has broad discretion in deciding what is in the best
interests of children who have been adjudicated. See In re Interest of Karlie D., supra. We
conclude that there was sufficient evidence to support giving the Department legal custody of the
children.
We also determine that there was no error in allowing counsel for the Department to
participate following the State’s request to give the Department legal custody. Jesse argues that
counsel for the Department should not have been allowed to cross-examine Birney because it had
not had involvement in the case. Based on Birney’s testimony, the Department was already
involved in the case at that point, as it had implemented a safety plan.
Juvenile Court’s Orders Regarding
Jesse’s Visitation.
Jesse next assigns that the juvenile court erred in ordering him to cooperate with a
walk-through of his residence if he wanted visits to take place there and to cooperate with
random drop-ins by the Department when he had the children. There was evidence presented that
the Department had instituted a safety plan based on concerns that Jesse had “drug issues.” The
safety plan instituted supervised visits for Jesse. He previously had been given an opportunity to
have the Department do a walk-through of his home to see if it was appropriate for visits, and he
refused.
The court had adjudicated Christian and Brysen and had the authority to ensure the safety
of the children. Juvenile courts have broad discretion to accomplish the purpose of serving the
best interests of the children involved. In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214(2012). Further, § 43-247(5) gives the juvenile court jurisdiction over the parent of any juvenile
described in § 43-247(3)(a), as Christian and Brysen were found to be. There is no merit to this
assignment of error.
Adjudication Based on Allegations
Against Jesse.
Jesse also assigns that the juvenile court erred in adjudicating Christian and Brysen based
on the allegations against him in count two of the second amended petition. Jesse first argues that
the juvenile court’s order violates his due process rights because the second amended petition
alleged that he had “engaged” in a physical altercation with Savannah, while the court’s order
states that Jesse was “involved” in such altercation. Although the court used a different word in
its order to describe Jesse’s participation in the altercation from that used in the petition, the
court stated that it found that the allegations of count two of the second amended petition were
true by a preponderance of the evidence. Therefore, the court clearly found the allegations in the
second amended petition to be true, despite its use of a different word. The juvenile court’s order
does not violate Jesse’s due process rights.
Jesse also argues that there was insufficient evidence to support the adjudication. He
contends that there was no evidence that Christian or Brysen were actually harmed as a result of
the January 16, 2013, incident or that there was a showing of a definite risk of harm. Jesse again
notes that Brysen was not yet born at the time of the incident.
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Although Christian and Brysen did not suffer visible harm as a result of the January 16,
2013, incident, the physical violence between Savannah and Jesse established a definite risk of
future harm. Savannah, Jesse, and Jesse’s friend all testified that a physical altercation occurred
on January 16. Although the witnesses’ accounts of the incident differ, they all agree that
Christian was present and was sitting on Jesse’s lap. Further, Savannah testified that the physical
altercation on January 16 was not the first physical altercation between her and Jesse. She
testified that Christian, at 20 months of age, had witnessed more than 20 physical altercations
between them. Although Jesse testified that the January 16 incident was the first physical
altercation, the court apparently found Savannah’s testimony to be more credible as the court
was entitled to do. Where the evidence is in conflict, the appellate court will consider and may
give weight to the fact that the trial court observed the witnesses and accepted one version of the
facts over another. In re Interest of Damien S., 19 Neb. App. 917, 815 N.W.2d 648 (2012). We
give deference to Savannah’s testimony, as the juvenile court did.
As previously discussed, even though Brysen was not born at the time of the January 16,
2013, incident, the incident posed a definite risk of future harm to Brysen, especially when the
pattern of physical violence between the parties is taken into consideration.
Jesse also argues that the juvenile court erred in permitting the Department’s counsel to
participate in the adjudication hearing involving the allegations against Jesse. Jesse contends that
the Department’s participation was allowed based on the juvenile court’s erroneous decision to
give the Department legal custody of Christian and Brysen. Having previously determined that
the juvenile court did not err in giving the Department legal custody, we find the court did not err
in allowing the Department’s counsel to participate in the adjudication hearing involving the
allegations against Jesse.
Finally, Jesse argues that the juvenile court erred in ordering him to participate in a
pretreatment assessment because such order rested on an erroneous adjudication. Because we
have found that the juvenile court properly adjudicated Christian and Brysen in regard to the
allegations against Jesse, this assignment of error is without merit.
CONCLUSION
Having found no merit to any of Jesse’s assignments of error, we affirm the juvenile
court’s adjudication of Christian and Brysen as juveniles within the meaning of § 43-247(3)(a)
based on the faults and habits of Savannah and Jesse.
AFFIRMED.
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