In re Interest of Jeremy U. ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/06/2020 08:06 AM CST
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
In re Interest of Jeremy U. et al.,
children under 18 years of age.
State of Nebraska, appellant and cross-appellee,
v. Tiffany G., appellee and cross-appellant,
and Brandon M., appellee.
___ N.W.2d ___
Filed January 3, 2020. No. S-19-215.
1. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
2. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
3. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
4. Juvenile Courts: Parental Rights: Notice. The factual allegations of
a petition seeking to adjudicate a child must give a parent notice of the
bases for seeking to prove that the child is within the meaning of Neb.
Rev. Stat. § 43-247(3)(a) (Reissue 2016).
5. Juvenile Courts: Proof. The State has the burden to prove the allega-
tions of a petition seeking to adjudicate a child by a “preponderance
of the evidence,” which is the equivalent of the greater weight of
the evidence.
6. Evidence: Words and Phrases. The greater weight of the evidence
means evidence sufficient to make a claim more likely true than
not true.
7. Juvenile Courts: Minors. The State’s right in juvenile proceedings is
derived from its parens patriae interest, and it is pursuant to that inter-
est that the State has enacted the Nebraska Juvenile Code.
8. ____: ____. The State has a right to protect the welfare of its resident
children, which is a governmental interest of great importance.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
9. ____: ____. The purpose of the adjudication phase of a juvenile pro-
ceeding is to protect the interests of the child.
10. Statutes. Statutory language is to be given its plain and ordinary
meaning.
11. Statutes: Legislature: Intent. In discerning the meaning of a statute, a
court should determine and give effect to the purpose and intent of the
Legislature as ascertained from the entire language of the statute consid-
ered in its plain, ordinary, and popular sense.
12. Statutes: Juvenile Courts: Minors: Appeal and Error. An appellate
court liberally construes statutes within the Nebraska Juvenile Code to
accomplish its purpose of serving the best interests of the juveniles who
fall within it.
13. Juvenile Courts: Parental Rights: Words and Phrases. “Parental”
as used in the phrase “lacks proper parental care” in Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016) describes the type and nature of care
rather than the relationship of the person providing it.
14. ____: ____: ____. “Proper parental care” under Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016) includes providing a home, support,
subsistence, education, and other care necessary for the health, mor-
als, and well-being of the child. It commands special care for the
children in special need because of mental condition. It commands
that the child not be placed in situations dangerous to life or limb, and
not be permitted to engage in activities injurious to his or her health
or morals.
15. Statutes. A court must attempt to give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be rejected as
superfluous or meaningless.
16. Juvenile Courts: Jurisdiction: Proof. While the State need not prove
that the child has actually suffered physical harm to assert jurisdiction
under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), Nebraska case
law is clear that 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:
Chad M. Brown, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
Donald W. Kleine, Douglas County Attorney, Anthony M.
Hernandez, and Alexander T. Kelly, Senior Certified Law
Student, for appellant.
Reginald Young, of Young & Young, for appellee.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
After a newborn reportedly tested positive for methamphet-
amine, the State sought to adjudicate the newborn—who had
been in a hospital with his mother—and his two siblings—who
lived with and received appropriate care from their grand-
mother—solely on the basis that the children “lack[ed] proper
parental care.”1 The juvenile court declined to adjudicate them,
finding that the State failed to prove they were at risk of harm.
On appeal, our decision regarding the older siblings is driven
by the plain meaning of the statute on the State’s chosen
ground, its choice not to allege any other ground, and its failure
to establish that the mother exposed or threatened to expose
them to her drug usage. We affirm the juvenile court’s decision
as to them. But because the evidence demonstrated that the
newborn lacked proper parental care due to his mother’s fault
or habits, we reverse the court’s decision as to him and remand
the cause for further proceedings.
II. BACKGROUND
1. Adjudication Petitions
Tiffany G. is the biological mother of Savannah M., born in
March 2015; Ashton M., born in April 2016; and Jeremy U.,
born in October 2018. Brandon M. is the biological father of
Savannah. The fathers of Ashton and Jeremy are not involved
in these proceedings.
Four days after Jeremy’s birth, the State filed a juvenile peti-
tion seeking to adjudicate the children under § 43-247(3)(a)
on only one ground: due to a lack of proper parental care by
reason of Tiffany’s fault or habits. Within the scope of that
ground, the petition alleged that the children were at risk for
1
See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).
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304 Nebraska Reports
IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
harm due to Tiffany’s use of alcohol or controlled substances,
her failure to provide proper parental care, and her failure to
provide stable housing.
On the same day, the State filed two motions concerning
custody. One was an ex parte motion for immediate custody
of Jeremy. The other was a motion for protective custody of
Savannah and Ashton. Both motions sought an order plac-
ing the temporary care and custody of the children with
the Nebraska Department of Health and Human Services
(DHHS) with placement to exclude Tiffany’s home. The court
granted the State’s motion with respect to Jeremy, stating
that Jeremy’s urine drug screen was positive for methamphet-
amine and that Tiffany admitted recent use of the drug. The
court later ordered that Savannah and Ashton be placed in
the temporary custody of DHHS, with placement to exclude
Tiffany’s home.
In January 2019, the State filed a supplemental petition.
It alleged that Savannah lacked proper care by reason of the
fault or habits of Brandon. Specifically, it alleged that Brandon
failed to provide proper parental care and safe housing, which
put Savannah at risk for harm. The court granted the State’s
motion for an ex parte order for immediate temporary custody
of Savannah.
2. Adjudication Hearing
The court heard testimony from two witnesses during an
adjudication hearing. Neither parent testified.
Kelci Christensen, a child and family services specialist with
DHHS until November 2018, conducted an initial assessment
for the family. The intake that she received informed her that
Tiffany was in the hospital for Jeremy’s birth and that there
were allegations Tiffany tested positive for methamphetamine.
When Christensen met with Tiffany, Tiffany reported she was
“couch surfing at the time, didn’t have a stable place to live.”
Christensen testified that Tiffany admitted using metham-
phetamine almost daily for the past 13 years. She also used
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304 Nebraska Reports
IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
marijuana “pretty often,” but not as frequently as metham-
phetamine. According to Christensen, Tiffany said she used
methamphetamine within the week of Jeremy’s birth and she
believed Jeremy would test positive for the drug. Tiffany had
sought treatment, but had not successfully completed it.
Christensen testified that the effects of methamphetamine
make it more difficult for an individual to properly “parent”
his or her children. Parents under the influence of metham-
phetamine often have difficulty making appropriate decisions.
Christensen would categorize children under age 3—which
these children were—as vulnerable children in their parent’s
custody if the parent was under the influence of methamphet-
amine. She testified that a child in the presence of a parent who
was under the influence of methamphetamine would be unsafe.
When Christensen conducted her investigation, Tiffany
had legal custody of the children, but not physical custody.
Savannah and Ashton were residing with Tiffany’s mother,
Tina G. Christensen testified that Savannah and Ashton had
appropriate clothing, had a bedroom to sleep in at Tina’s house,
and appeared to be in good health. Jeremy was initially placed
with Carolina O., a friend of the family, but he was eventually
placed with Tina.
While at the hospital, Christensen drafted a safety plan. As
part of the safety plan, Tiffany agreed to participate in domes-
tic violence classes and to comply with any recommendations
of a drug and alcohol evaluation. Tiffany arranged to have
someone else care for her children. According to the plan, Tina
would care for Savannah and Ashton and Jeremy would stay
with Carolina. Tiffany, Tina, and Carolina all signed the safety
plan. Christensen observed Tiffany sign a temporary delegation
of parental authority form as to Savannah and Ashton and one
regarding Jeremy. According to Christensen, a parent’s signing
a temporary delegation of parental authority form shows that
the parent is “willing to at least try to keep that child safe and
out of risk of harm.” Neither the safety plan nor the delegation
forms are in our record.
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304 Nebraska Reports
IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
Despite the execution of those forms, the children were
removed and placed in the temporary care and custody of
DHHS. Christensen did not agree with the removal of the
children, because DHHS’ policy is to first offer a parent a
safety plan and provide an opportunity to appropriately care
for a child without court involvement. Specifically, she did not
agree with Jeremy’s removal because Tiffany was not given
a chance to enact any of the measures agreed upon in the
safety plan.
According to Christensen, DHHS determined that the alle-
gations of the petition were unfounded. She explained that it
was not child abuse or neglect for Tiffany to realize that she
“could not care for her children physically because of her
drug use and plac[e] them with appropriate parents who could
make sure that . . . her children received everything that they
needed in order to be happy and healthy.” And due to the safety
plan, Christensen did not believe the children were at risk for
immediate harm. Christensen acknowledged that the temporary
delegation of parental powers could be revoked by a parent at
any time. But she testified that as long as a parent who is con-
stantly under the influence of methamphetamine has continued
to leave the child with an appropriate caregiver, that is not a
risk for harm.
Maranda Buckley, an employee of PromiseShip, provided
testimony relevant to Brandon. Her duties with PromiseShip
included meeting with families, assessing ongoing safety risks,
and “looking out for the best interests of the children and their
well-being.” Buckley opined that Savannah would be at risk
for harm in Brandon’s custody due to his not having a house
or income and his inability to meet Savannah’s needs. Brandon
was in jail when Buckley met with him on January 7, 2019, but
he was released on January 16. Buckley had not spoken with
Brandon since his release, testifying that he “ha[d] not been
engaging” and would not return her telephone calls or respond
to her text messages. According to Buckley, Brandon had not
attempted to visit or call Savannah.
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304 Nebraska Reports
IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
3. Juvenile Court’s Order
The court found that the State proved some of the allega-
tions of the petition and supplemental petition. It found to be
true that Tiffany failed to provide the juveniles with proper
parental care, support, supervision, and/or protection and that
she failed to provide them with safe, stable housing. According
to the order, the evidence showed that at the time of removal,
Savannah and Ashton had not been living with Tiffany and
that Tiffany “had not seen them for at least two years.” With
respect to Brandon, the court found that the State proved
he failed to provide Savannah with proper parental care and
safe housing.
The court dismissed the petition due to insufficient evidence
that the juveniles were at risk for harm due to Tiffany’s use
of controlled substances, failure to provide proper parental
care, and failure to provide stable housing. The court like-
wise dismissed the allegation of the supplemental petition that
Brandon’s failures put Savannah at risk for harm.
The court found that In re Interest of Justine J. et al.2 was
“controlling.” It determined that the State had not shown any
risk of harm to Savannah and Ashton, noting that Christensen
did not believe the children were at risk of harm. With regard to
Jeremy, the court stated that Christensen’s testimony “showed
that there was not a risk of harm . . . because [Tiffany] had
made a rational decision to find a suitable care taker due to
her continued methamphetamine addiction.” According to the
court, Tiffany “had exhibited this rational thinking on at least
three occasions, coinciding with her three children.” The court
recognized that Christensen testified the children would be at
a risk of harm if in Tiffany’s physical custody, but not at a
risk in her legal custody. Due to insufficient evidence to prove
risk of harm, the court dismissed the matter and terminated the
court’s jurisdiction.
The State timely appealed, and Tiffany filed a cross-appeal.
2
In re Interest of Justine J. et al., 286 Neb. 250, 835 N.W.2d 674 (2013).
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304 Nebraska Reports
IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
III. ASSIGNMENTS OF ERROR
The State assigns that the juvenile court erred (1) when
it found that Tiffany’s use of controlled substances did not
place the juveniles at risk of harm due to insufficient evidence
and (2) when it found that Brandon did not fail to provide
Savannah with safe, stable housing.
On cross-appeal, Tiffany assigns that the juvenile court
erred when it found that (1) jurisdiction of the court was
proper, (2) she had not seen Savannah and Ashton for 2 years,
and (3) the allegations that she failed to provide her children
with proper parental care and had failed to provide her chil-
dren with safe, stable housing due to her fault or habits were
true by a preponderance of the evidence.
IV. STANDARD OF REVIEW
[1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.3
[2] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings.4
V. ANALYSIS
1. Jurisdiction
[3] We begin with an error assigned on cross-appeal: that the
juvenile court lacked subject matter jurisdiction. Subject matter
jurisdiction is the power of a tribunal to hear and determine a
case in the general class or category to which the proceedings
in question belong and to deal with the general subject mat-
ter involved.5 Section 43-247 provides for the juvenile court’s
jurisdiction over certain individuals and proceedings.
Tiffany’s argument is confusing. She concedes that venue
was proper. Nonetheless, she argues, “There was simply no
evidence presented by the state during the trial as to where
3
In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).
4
In re Interest of Michael N., 302 Neb. 652, 925 N.W.2d 51 (2019).
5
Green v. Seiffert, ante p. 212, 933 N.W.2d 590 (2019).
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IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
the alleged incidents in its petition occurred, and without that
evidence, the court cannot find that it has jurisdiction in this
matter.”6 But in a proceeding under the Nebraska Juvenile
Code, the State is not required to prove proper venue, because
proof of venue is immaterial to the determination of whether a
juvenile falls within the meaning of § 43-247.7
A juvenile court petition is to be filed with the clerk of the
court having jurisdiction over the matter.8 The petition here,
filed with the clerk of the district court 9 for Douglas County,
alleged that the juveniles were living within Nebraska and that
Tiffany lived in Omaha, Nebraska. Even if a petition seeking
to adjudicate a juvenile was filed in a county other than the
county where the juvenile is presently living or domiciled,
Neb. Rev. Stat. § 43-282 (Reissue 2016) allows for proceed-
ings to be transferred, after adjudication, to the county where
the juvenile lives or is domiciled. We conclude that the sepa-
rate juvenile court of Douglas County had subject matter juris-
diction. We turn to the merits.
2. Adjudication
We emphasize at the outset that the sole ground alleged by
the State for adjudication under § 43-247(3)(a) was that the
juveniles lacked proper parental care by reason of the fault or
habits of Tiffany and Brandon (as to Savannah only). Section
43-247(3)(a) sets forth numerous grounds by which the juve-
nile court could take jurisdiction over a juvenile, but the State
alleged only one.
Under § 43-247(3)(a), a juvenile court has jurisdiction of
any juvenile
who is homeless or destitute, or without proper sup-
port through no fault of his or her parent, guardian, or
6
Reply brief for appellee on cross-appeal at 6.
7
See In re Interest of Leo L., 258 Neb. 877, 606 N.W.2d 783 (2000).
8
Neb. Rev. Stat. § 43-261(1)(b) (Reissue 2016).
9
See id.
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IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
c­ustodian; who is abandoned by his or her parent, guard-
ian, or custodian; who lacks proper parental care by
reason of the fault or habits of his or her parent, guard-
ian, or custodian; whose parent, guardian, or custodian
neglects or refuses to provide proper or necessary sub­
sistence, 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; who is in a situation or
engages in an occupation, including prostitution, danger-
ous to life or limb or injurious to the health or morals
of such juvenile; or who, beginning July 1, 2017, has
committed an act or engaged in behavior described in
subdivision (1), (2), (3)(b), or (4) of this section and who
was under eleven years of age at the time of such act
or behavior[.]
(Emphasis supplied.) It is obvious that the State’s chosen
ground was only one among the many which were available.
[4-6] The factual allegations of a petition seeking to adjudi-
cate a child must give a parent notice of the bases for seeking to
prove that the child is within the meaning of § 43-247(3)(a).10
And the State then has the burden to prove the allegations of
the petition by a “preponderance of the evidence,”11 which
is the equivalent of the greater weight of the evidence.12 The
greater weight of the evidence means evidence sufficient to
make a claim more likely true than not true.13
Here, because the State alleged only one ground—that the
juveniles lacked proper parental care by reason of the fault or
habits of their parent, guardian, or custodian—we narrow our
focus to that ground only.
10
In re Interest of Taeven Z., 19 Neb. Ct. App. 831, 812 N.W.2d 313 (2012).
11
See Neb. Rev. Stat. § 43-279.01 (Reissue 2016).
12
See Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81 (2019).
13
Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
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IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
(a) Justification for State
Involvement
[7-9] The State’s right in juvenile proceedings is derived
from its parens patriae interest, and it is pursuant to that inter-
est that the State has enacted the Nebraska Juvenile Code.14
The State has a right to protect the welfare of its resident chil-
dren, which is a governmental interest of great importance.15
This right is especially prominent in juvenile adjudications,
because the purpose of the adjudication phase of a juvenile
proceeding is to protect the interests of the child.16
(b) Interpretation of § 43-247(3)(a)
Key to our analysis is the meaning of the phrase “lacked
proper parental care.” Specifically, in that context, does the
adjective “parental” describe the type and nature of care or
the person providing the care? The plain meaning of the stat-
ute, supported by our case law, dictates that it describes type
and nature.
[10-12] Statutory language is to be given its plain and ordi-
nary meaning.17 In other words, in discerning the meaning of a
statute, a court should determine and give effect to the purpose
and intent of the Legislature as ascertained from the entire
language of the statute considered in its plain, ordinary, and
popular sense.18 And we liberally construe statutes within the
Nebraska Juvenile Code to accomplish its purpose of serving
the best interests of the juveniles who fall within it.19
The structure of the phrase is significant. In assessing
whether a juvenile “lacks proper parental care by reason of the
14
In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).
See, also, Neb. Rev. Stat. § 43-246 (Supp. 2019).
15
See In re Interest of Noah B. et al., supra note 14.
16
Id.
17
Christine W. v. Trevor W., 303 Neb. 245, 928 N.W.2d 398 (2019).
18
See Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018).
19
See In re Interest of Gabriela H., 280 Neb. 284, 785 N.W.2d 843 (2010).
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IN RE INTEREST OF JEREMY U. ET AL.
Cite as 304 Neb. 734
fault or habits of his or her parent, guardian, or custodian,”20
the initial focus is on the first component: Does the juvenile
lack proper parental care? Typically, only if this question
is answered in the affirmative does one look to the cause:
whether the lack of proper parental care is due to the fault or
habits of the juvenile’s parent, guardian, or custodian.
The history of the phrase and our cases construing it sup-
port our interpretation—that “parental” describes the type and
nature of care. In 1955, the Legislature crafted the current
language of “lacks proper parental care by reason of the fault
or habits of his parent, guardian, or custodian.”21 In 1962, we
stated that “[l]egislation authorizing proceedings to declare a
child neglected and dependent is applicable only to emergency
situations where the child’s needs must be met.”22 Although
the trial court in that case had found that the children were
neglected, we stated:
Its findings were restricted in their reference to the par-
ents only and in no way made reference to what was
being done for the [children] by the [couple] who had
them in custody. It appears plainly that at that time they
were carefully nurtured, cared for, and loved by them.23
Five years later, we announced a definition of the phrase
“neglected child.”24 We stated:
A neglected child is a child under 18 years of age who is
abandoned by his parent, who lacks proper parental care
by reason of the fault or habits of the parent, or whose
parent neglects or refuses to provide proper or necessary
subsistence, education, or other care necessary for the
health, morals, or well-being of such child.25
20
§ 43-247(3)(a).
21
See 1955 Neb. Laws, L.B. 163.
22
State v. Gross, 173 Neb. 536, 544, 114 N.W.2d 16, 20 (1962).
23
Id. at 540-41, 114 N.W.2d at 19.
24
See Mullikin v. Lutkehuse, 182 Neb. 132, 153 N.W.2d 361 (1967).
25
Id. at 134, 153 N.W.2d at 363.
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But for two reasons we do not understand our 1967 defini-
tion to mean neglect can be based only on a parent’s actions or
inactions. First, the definition merely repeated the language of
the statute while omitting any references to the other statutory
words “guardian” or “custodian.”26 Second, if the concern was
whether the neglect was by a parent only, it would have been
unnecessary for us to discuss in that case whether the child was
receiving proper care by her grandmother—the child’s custo-
dian at the time of filing the petition.
[13,14] We conclude that “parental” as used in the phrase
“lacks proper parental care” describes the type and nature of
care rather than the relationship of the person providing it. As
we explained in 1979, “proper parental care” includes
providing a home, support, subsistence, education, and
other care necessary for the health, morals, and well-
being of the child. It commands special care for the chil-
dren in special need because of mental condition. It com-
mands that the child not be placed in situations dangerous
to life or limb, and not be permitted to engage in activities
injurious to his health or morals.27
These responsibilities can be performed by a parent or some-
one standing in place of a parent.
The State advances two contrary arguments, but neither is
persuasive. One argument is that “lack[ing] proper parental
care” under § 43-247(3)(a) includes abandonment by a par-
ent. But this argument fails because abandonment is spe-
cifically covered by a separate ground within § 43-247(3)(a).
Immediately before the “lacks proper parental care” ground, the
statute provides a ground for adjudication of a juvenile “who
is abandoned by his or her parent, guardian, or custodian.”28
Because § 43-247(3)(a) separately allows adjudication of a
juvenile who is abandoned, “lack[ing] proper parental care”
26
See Neb. Rev. Stat. § 43-201(3) (Reissue 1974).
27
State v. Metteer, 203 Neb. 515, 520, 279 N.W.2d 374, 377 (1979).
28
§ 43-247(3)(a) (emphasis supplied).
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under § 43-247(3)(a) focuses on something other than aban-
donment. And the State did not allege abandonment.
[15] The State’s other argument is textual. The State asserts
that “parental” is focused on performance by a parent. But this
argument is inconsistent with the remainder of the phrase “by
reason of the fault or habits of his or her parent, guardian, or
custodian.”29 If “parental care” could only be provided by a
parent, there would be no reason for the statute to include a
child’s guardian or custodian. A court must attempt to give
effect to all parts of a statute, and if it can be avoided, no
word, clause, or sentence will be rejected as superfluous or
meaningless.30
Case law from other jurisdictions supports our long-standing
interpretation that “parental” describes the type of care. The
Supreme Court of Texas declared:
The term, “parental care,” as used in the statute is purely
descriptive; it refers to the kind and quality of care which
should be, and ordinarily is, provided by parents. . . .
“Parental care” may be provided by persons who occupy
a parental position in the life of a child, either perma-
nently or temporarily.31
Similarly, the Oregon high court stated that “‘parental care may
be provided by persons who are not parents or guardians” and
that “[t]he ‘parental care’ of which the statute speaks is the
kind of care to be expected of a good father and mother.”32 The
North Dakota Supreme Court defined the phrase “proper paren-
tal care” to mean the “‘“minimum standards of care which the
community will tolerate.”’”33 And the Vermont Supreme Court
29
§ 43-247(3)(a).
30
In re Interest of Marcella G., 287 Neb. 566, 847 N.W.2d 276 (2014).
31
Hendricks v. Curry, 401 S.W.2d 796, 801 (Tex. 1966) (superseded by
statute on other grounds as noted in In re Interest of R.D.S., 902 S.W.2d
714 (Tex. App. 1995)).
32
In re Murphy, 218 Or. 514, 521, 346 P.2d 367, 370 (1959) (en banc).
33
Interest of J.B., 916 N.W.2d 787, 789 (N.D. 2018).
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determined that the term “parental care” did not compel an
adjudication whenever incapacitated parents leave their children
with relatives or others to provide parental care during the period
of incapacitation.34
To summarize, whether a juvenile “lacks proper paren-
tal care by reason of the fault or habits of his or her parent,
guardian, or custodian” is a two-step inquiry. The first step
is to determine if the juvenile is lacking proper parental care,
whether such care is being provided by a parent, a guardian, or
a custodian. If the juvenile is not lacking that type of care (and,
as discussed below, there is no definite risk of harm), adjudi-
cation under this provision of § 43-247(3)(a) is improper. If,
on the other hand, the juvenile is lacking such care, the court
should proceed to the second step: Does that condition result
from the fault or habits of the juvenile’s parent, guardian, or
custodian? If the answer to that question is also yes, then the
juvenile court should take jurisdiction of the juvenile and pro-
ceed to a proper disposition.
(c) Risk of Harm
[16] In considering whether a juvenile lacks proper parental
care, our case law has incorporated a risk of harm component.
This stems from the part of the definition of proper parental
care “command[ing] that the child not be placed in situations
dangerous to life or limb, and not be permitted to engage in
activities injurious to his health or morals.”35 We have stated:
“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.”36
34
See In re G.C., 170 Vt. 329, 749 A.2d 28 (2000).
35
State v. Metteer, supra note 27, 203 Neb. at 520, 279 N.W.2d at 377.
36
In re Interest of Kane L. & Carter L., 299 Neb. 834, 846, 910 N.W.2d 789,
799 (2018). Accord, In re Interest of Lilly S. & Vincent S., 298 Neb. 306,
903 N.W.2d 651 (2017); In re Interest of Justine J. et al., supra note 2.
See, also, In re Interest of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008).
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In other words, we view risk of harm as a component of a
lack of proper parental care. This principle is often invoked
where a juvenile is arguably receiving proper parental care,
but faces a definite risk of harm. For example, in Jones v.
State,37 a child was receiving appropriate care by his care-
givers, but his mother was threatening to take the child and
the caregivers sought the court’s aid to protect the child.
Because “there was every reason to believe that the child was
in danger of becoming a neglected child if removed from his
present home in Nebraska,”38 we reversed the trial court’s
judgment of dismissal. Similarly, we determined that where a
child “was in danger of becoming a dependent and neglected
child in the immediate future if his custody was given to
[his parents,] the court should take jurisdiction to protect his
interests.”39 And in In re Interest of M.B. and A.B.,40 although
there was no indication that the children lacked proper paren-
tal care, the court adjudicated the children because their
father/stepfather had been convicted of sex crimes against
children. We affirmed, stating that “[i]f evidence of the fault
or habits of a parent or custodian indicates a risk of harm to
a child, the juvenile court may properly take jurisdiction of
that child, even though the child has not yet been harmed
or abused.”41
More recently, we applied the risk of harm principle in
In re Interest of Justine J. et al.,42 the case relied upon by
the juvenile court. There, the mother appealed from an order
adjudicating her four children under § 43-247(3)(a). She did
not challenge the adjudication of her two oldest children,
37
Jones v. State, 175 Neb. 711, 123 N.W.2d 633 (1963).
38
Id. at 717, 123 N.W.2d at 637.
39
Stew. v. McCauley, 178 Neb. 412, 419-20, 133 N.W.2d 921, 926 (1965).
40
In re Interest of M.B. and A.B., 239 Neb. 1028, 480 N.W.2d 160 (1992).
41
Id. at 1030, 480 N.W.2d at 161-62.
42
In re Interest of Justine J. et al., supra note 2.
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who had lived with her, but contested the adjudication of her
two youngest children, who lived with their grandparents. We
found that the State failed to meet its burden to show there was
a definite risk of future harm to the youngest children by rea-
son of the fault or habits of their mother while those children
were living with their grandparents. We determined that the
State failed to prove “an evidentiary nexus between the neglect
suffered by [the oldest children] and any definite risk of future
harm to [the youngest children].”43
(d) Application to Current Case
(i) Jeremy
As to Jeremy, the facts are clear: he has already suffered
harm from Tiffany’s lack of parental care in failing to pro-
tect him from methamphetamine entering his body. He was
exposed to Tiffany’s drug use in utero. According to the undis-
puted evidence at the adjudication hearing, Tiffany admitted
to Christensen that she had used methamphetamine within the
week of Jeremy’s birth and that she believed Jeremy would
test positive for methamphetamine. Thus, there was persuasive
evidence that Jeremy lacked proper parental care by reason of
Tiffany’s fault or habits. We conclude that the juvenile court
erred by failing to adjudicate Jeremy.
(ii) Savannah and Ashton
But as to Savannah and Ashton, the circumstances differ.
The outcome here is driven by the State’s litigation strategy
and deficiencies of the evidentiary record it developed.
First, the State elected not to allege that by entrusting the
children to Tina, their grandmother, Tiffany abandoned the two
siblings. If in the future Tiffany’s drug addiction persists and
she engages in conduct amounting to abandonment, the State
may have reason to seek adjudication on that basis. But here,
43
Id., 286 Neb. at 255, 835 N.W.2d at 679.
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the State did not do so. Rather, the sole ground advanced was
lack of proper parental care.
Second, the record did not establish that Savannah or Ashton
lacked such care or were at a definite risk of harm. The evi-
dence established that they had been in Tina’s physical custody,
where they were provided with a place to sleep, food, and
clothing. There was no evidence that they had been exposed
to Tiffany’s drug addiction or that they were at definite risk
of being so exposed. Nor was there evidence that Tiffany had
previously taken Savannah and Ashton from Tina or that she
was threatening to do so. Indeed, all of the evidence was to the
contrary. The State’s assertion that Tiffany could remove the
children from Tina’s care at any time rested on pure specula-
tion. Similarly, there was no evidence that Savannah was at
risk of harm due to Brandon’s fault or habits. But if in the
future, these children are exposed to Tiffany’s persistent drug
use or she threatens or attempts to do so, our decision today
would not prevent the State from taking prompt action to pro-
tect them.
In other words, should the situation change and the State
acquire evidence that Savannah or Ashton lack proper parental
care, whether it would be by reason of the fault or habits of
their custodian or their parents, the State should again petition
the juvenile court for adjudication pursuant to § 43-247(3)(a).
But in this appeal, because the State did not show that Savannah
and Ashton lacked proper parental care, the juvenile court
properly declined to adjudicate them.
(e) Remaining Assignments of Error
Both the State and Tiffany assign errors regarding certain
findings and conclusions by the juvenile court. In our de novo
review, we have reached conclusions independently of the trial
court’s findings and have disregarded any findings and con-
clusions that were unsupported by the evidence. We need not
discuss those assignments of error further.
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VI. CONCLUSION
We affirm the juvenile court’s decision declining to adjudi-
cate Savannah and Ashton, because they did not lack proper
parental care. Because Jeremy did lack proper parental care,
as demonstrated by Tiffany’s drug use during pregnancy until
the time of his birth, we reverse the juvenile court’s decision
declining to adjudicate him and remand the cause for fur-
ther proceedings.
Affirmed in part, and in part reversed and
remanded for further proceedings.