In re Interest of Vladimir G. , 306 Neb. 127 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2020 01:10 AM CDT
- 127 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127In re Interest of Vladimir G., a child
under 18 years of age.
State of Nebraska, appellee, v.
Abigail G., appellant.
___ N.W.2d ___
Filed June 12, 2020. No. S-19-645.
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. Constitutional Law: Self-Incrimination: Appeal and Error. A court’s
decision to allow a witness to invoke his or her Fifth Amendment right
against self-incrimination is reviewed for an abuse of discretion.
3. Statutes: Judgments: Appeal and Error. The meaning of a statute is a
question of law, which an appellate court resolves independently of the
trial court.
4. Constitutional Law: Self-Incrimination. The state and federal
Constitutions provide that no person shall be compelled to give evidence
against himself or herself of an incriminating nature.
5. ____: ____. The Fifth Amendment privilege not only permits a person
to refuse to testify against himself or herself during a criminal trial in
which he or she is a defendant, but also grants him or her the privilege
to refuse to answer questions put to him or her in any other proceeding,
civil or criminal, formal or informal, where the answers might tend to
incriminate him or her in future criminal proceedings.
6. Juvenile Courts: Constitutional Law: Self-Incrimination. In a juve-
nile adjudication hearing, as in any other civil proceeding, a parent may
invoke his or her Fifth Amendment privilege to refuse to answer ques-
tions put to him or her where the answers might tend to incriminate him
or her in future criminal proceedings.
- 128 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 1277. Constitutional Law: Self-Incrimination: Testimony. The Fifth
Amendment must be accorded a liberal construction in favor of the
privilege against compulsory self-incrimination, and thus the analysis
under the Fifth Amendment ordinarily examines an entire line of ques-
tioning to determine whether to exclude the testimonial evidence based
on privilege.
8. Constitutional Law: Witnesses: Self-Incrimination. The Fifth
Amendment privilege not only extends to answers that would in them-
selves support a conviction but likewise embraces those which would
furnish a link in the chain of evidence needed to prosecute the claimant.
It need only be evident from the implications of the question, in the set-
ting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because
injurious disclosure could result.
9. ____: ____: ____. While a witness may invoke the Fifth Amendment to
avoid answering questions, the witness’ assertion of the privilege does
not by itself establish the risk of incrimination; instead, the court must
make inquiry to determine itself whether answering the questions would
raise Fifth Amendment concerns.
10. ____: ____: ____. A trial court is required, in the exercise of sound
discretion, to determine whether the witness’ claims of the Fifth
Amendment privilege are justifiable.
11. ____: ____: ____. The trial judge necessarily is accorded broad discre-
tion in determining the merits of a claimed Fifth Amendment privilege.
Whether a witness’ claim of privilege against self-incrimination is
justified is a decision which rests within the trial court’s exercise of
sound discretion under all the circumstances then present, including
the setting in which a question is asked and the nature of the testi-
mony sought.
12. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
13. 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).
14. Juvenile Courts: Proof. The State has the burden to prove the alle-
gations of a petition seeking to adjudicate a child by a preponder-
ance of the evidence, which is the equivalent of the greater weight of
the evidence.
15. Evidence: Words and Phrases. The greater weight of the evidence
means evidence sufficient to make a claim more likely true than not
true.
- 129 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127Appeal from the County Court for Sioux County: Russell
W. Harford, Judge. Affirmed.
Amy L. Patras, of Crites, Shaffer, Connealy, Watson, Patras
& Watson, P.C., L.L.O., for appellant.
Joe W. Stecher, Deputy Sioux County Attorney, for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Abigail G. appeals the order of the county court for Sioux
County, sitting as a juvenile court, which adjudicated her
son, Vladimir G., to be a child within the meaning of Neb.
Rev. Stat. § 43-247(3)(a) (Reissue 2016). Abigail claims, inter
alia, that the court erred when it required her to testify despite
her invocation of her Fifth Amendment rights. We conclude
that although Abigail could invoke her Fifth Amendment privi-
lege in this adjudication, any error on the part of the court in
requiring her testimony was not reversible error. We further
conclude that there was sufficient evidence to support the
adjudication. We therefore affirm the county court’s order
of adjudication.
STATEMENT OF FACTS
The State filed a petition alleging that Vladimir, born in
July 2016, was a child within the meaning of § 43-247(3)(a)
on the basis that he “lack[ed] proper parental care by reason
of the fault or habits of his parent, guardian, or custodian”
or that he was “a juvenile who is in [a] situation dangerous
to life or limb or injurious to [his] health.” The petition was
prompted when in March 2018, Vladimir was examined in
a hospital and was found to have suffered injuries including
abusive head trauma, a large abrasion to the back described as
“rug burn,” bone fractures, and multiple bruises throughout his
face and body.
- 130 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127Vladimir’s mother, Abigail, told a law enforcement offi-
cer that the injuries described above had all occurred while
Vladimir was under the care of her boyfriend, Thomas Joseph
Boyd. Prior to the hospital visit in March 2018, on or about
February 24, Abigail had taken Vladimir to a hospital for an
examination because she was concerned that Boyd might have
sexually abused Vladimir. In the February examination, the
doctor did not find evidence of sexual abuse but told Abigail
that there were not always physical signs of sexual abuse.
After the February examination, Abigail told medical and law
enforcement personnel that she would no longer allow Boyd
to have contact with Vladimir. After the examination in March
that disclosed the injuries set forth above, Abigail told medi-
cal personnel that the injuries had occurred after the February
hospital visit and that they had occurred while Vladimir was
under the care of Boyd.
The adjudication hearing was held on March 6, 2019. The
first witness called by the State at the hearing was Abigail.
Abigail objected to testifying based on Fifth Amendment
grounds. The State argued that there was nothing it would
be questioning Abigail about that would incriminate her; the
State further argued that because there were relevant mat-
ters to which Abigail could testify that would not incriminate
her, she could not make a blanket objection to testifying and
instead would need to “plead[] the Fifth” as to specific ques-
tions. The court overruled Abigail’s objection after it cited
Neb. Rev. Stat. § 43-279(1)(c) (Reissue 2016), which requires
the court in an adjudication to inform the parties “[o]f the
privilege against self-incrimination by advising the juvenile,
parent, guardian, or custodian that the juvenile may remain
silent concerning the charges against the juvenile and that
anything said may be used against the juvenile.” The court
reasoned that the focus of the statute was the juvenile’s, and
not a parent’s, right to remain silent. Prior to Abigail’s testi-
mony, rather than requiring Abigail to object to specific ques-
tions, the State stipulated that Abigail had a continuing objec-
tion to testifying on Fifth Amendment grounds.
- 131 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127Thereafter, Abigail generally testified to the effect that,
notwithstanding her suspicions in February 2018 about Boyd’s
conduct regarding Vladimir, she continued to leave Vladimir
in Boyd’s care during March when all the serious injuries
occurred. Abigail testified regarding three specific injuries
that occurred in March while Vladimir was in Boyd’s care
and what Boyd told her after she noticed the injuries. Abigail
testified that Boyd told her that a bruise around Vladimir’s eye
was caused when Vladimir threw a tantrum and hit himself on
a bedpost; that a rug burn was caused when Boyd’s son, who
is near in age to Vladimir, dragged Vladimir across the carpet;
and that an injury to Vladimir’s arm occurred when Vladimir
and Boyd’s sons were playing together and Boyd’s dog got
involved in the play and knocked Vladimir over and into a
piece of furniture. On cross-examination, Abigail testified that
she believed the reasons given by Boyd regarding how the
injuries occurred and that she did not believe that Boyd had
caused the injuries.
Abigail also testified regarding the concerns that prompted
her to seek the medical examination in February 2018. She
testified that she was concerned Vladimir had been sexually
abused and that she thought Boyd might have been involved
because Boyd “was up in the middle of the night with”
Vladimir and Boyd’s two sons. She testified that she talked
with medical and law enforcement personnel regarding her
concerns in February 2018, but she did not recall that anyone
had told her not to allow Boyd to have contact with Vladimir;
nor did she recall telling the law enforcement officer that she
would not allow Boyd to have further contact with Vladimir.
Abigail also testified that at the time of the hearing, she con-
tinued to have a sexual relationship with Boyd; Abigail had
objected to the question that prompted this testimony on the
basis, in addition to the continuing Fifth Amendment objec-
tion, that the petition for adjudication had not given her notice
that her continuing relationship with Boyd was a basis for
the adjudication.
- 132 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127At the conclusion of Abigail’s testimony, the court indicated
that it had given further thought to its earlier ruling regarding
Abigail’s invocation of her Fifth Amendment rights. The court
referred to Neb. Rev. Stat. § 43-279.01 (Reissue 2016), which
provides in relevant part:
(1) When the petition alleges the juvenile to be within
the provisions of subdivision (3)(a) of section 43-247 or
when termination of parental rights is sought pursuant
to subdivision (6) of section 43-247 and the parent, cus-
todian, or guardian appears with or without counsel, the
court shall inform the parties of the:
....
(d) Right to remain silent as to any matter of inquiry
if the testimony sought to be elicited might tend to prove
the party guilty of any crime.
The court stated that based on its reading of § 43-279.01,
parents in an adjudication hearing might have a Fifth
Amendment or at least a statutory right to remain silent in
response to questions that might implicate them in a crime.
The court, however, doubted that any of Abigail’s testimony
was of that sort, and the State, represented by the county
attorney, stated it did not intend to file charges against Abigail
and that it “would grant any immunity for that testimony for
any charges.” Abigail moved to strike her testimony on Fifth
Amendment grounds and argued that the county attorney’s
offer of immunity was insufficient because other authorities
could prosecute Abigail and because immunity should have
been granted prior to her testimony. The court overruled
Abigail’s motion to strike her testimony and stated: “I think
that if anybody tries to prosecute [Abigail], that there would
be a defense based on both what [the county attorney] said and
what I — how I ruled today on the bench that — that she does
have that right [to remain silent].”
Other evidence at the hearing included the testimony of
the sheriff’s deputy who had spoken with Abigail in February
2018 regarding her concern that Boyd had sexually abused
- 133 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127Vladimir. The deputy testified, inter alia, that at that time,
Abigail told him that she would never again allow Boyd
to have contact with Vladimir. He also testified that he did
not further investigate Abigail’s concerns because the medi-
cal examination did not reveal evidence of sexual abuse and
because Abigail had stated that she would no longer allow
Boyd to have contact with Vladimir.
Prior to Abigail’s testimony, the court had received into evi-
dence two depositions offered by the State—depositions of a
doctor and of a nurse who had examined and treated Vladimir
in March 2018. The State described the depositions as being
offered by “joint motion,” and Abigail did not object to admis-
sion of the depositions. Both the doctor and the nurse agreed
that Vladimir’s injuries were as alleged in the petition for
adjudication. The doctor stated that he suspected nonacciden-
tal trauma based on “multiple fractures on different sides of
the body” in combination with “the whole story with all of his
injuries.” The nurse stated in her deposition that Vladimir’s
injuries were consistent with abuse and that she suspected
abuse based on the “constellation” of injuries. The nurse also
stated, contrary to Abigail’s testimony at the hearing, that
she did not think Boyd had caused the injuries and that in
March 2018, Abigail had stated to the nurse that she had not
talked to Boyd since the injuries to Vladimir, that she did not
want Boyd around, and that she had concerns that Boyd had
hurt Vladimir.
After the adjudication hearing, the county court filed an
order in which it found Vladimir to be a child within the
meaning of § 43-247(3)(a). Based on the testimony and depo-
sitions received at the hearing, the court found that the inju-
ries to Vladimir would not have occurred in the absence of
abuse or neglect, that the injuries occurred when Vladimir was
with Boyd, and that the injuries occurred when Vladimir was
under the control of Abigail, who had left him with Boyd in
March 2018 despite concerns that prompted her to seek the
medical examination in February. Based on these findings,
- 134 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127the court concluded that “Abigail’s interest in maintaining her
relationship with . . . Boyd, or her lack of concern about the
safety and well[-]being of Vladimir, or both, caused Vladimir
to have been placed in the position of sustaining on multiple
occasions the injuries he suffered.”
In the adjudication order, the court also briefly addressed
the Fifth Amendment issue. The court recognized Abigail’s
assertion that her right to remain silent had been violated.
However, the court stated that it was “important to note” that
her testimony at the hearing was “for the most part” consistent
with things she had said to both the doctor and the nurse and
were set forth in their depositions and in medical records that
were made exhibits to those depositions. The court further
stated that “Abigail’s counsel introduced those [depositions
and attached] exhibits into evidence before Abigail was called
to testify.”
Abigail appeals the order adjudicating Vladimir.
ASSIGNMENTS OF ERROR
Abigail claims that the county court erred when it (1) vio-
lated her constitutional and statutory right to remain silent by
forcing her to testify at the adjudication hearing and (2) found
that there was sufficient evidence that Vladimir was a child
within the meaning of § 43-247(3)(a).
STANDARDS OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings. In re Interest of Giavonni P., 304 Neb.
580, 935 N.W.2d 631 (2019). 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 ver-
sion of the facts over the other. In re Interest of Jordan B., 300
Neb. 355, 913 N.W.2d 477 (2018).
[2] A court’s decision to allow a witness to invoke his
or her Fifth Amendment right against self-incrimination is
- 135 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127reviewed for an abuse of discretion. State v. Phillips, 286 Neb.
974, 840 N.W.2d 500 (2013).
[3] The meaning of a statute is a question of law, which an
appellate court resolves independently of the trial court. In re
Interest of Giavonni P., supra.ANALYSIS
Abigail Could and Did Invoke Fifth Amendment
Privilege, but Any Error in Requiring Her
Testimony Was Not Reversible Error.
Abigail first claims that the county court violated her con-
stitutional and statutory right to remain silent by forcing her
to testify at the adjudication hearing. We conclude that Fifth
Amendment rights may be invoked by a parent in an adju-
dication proceeding; however, we conclude that any error
in requiring Abigail to testify over such invocation was not
reversible error.
We first address whether Abigail was entitled to invoke
the Fifth Amendment privilege in this adjudication hearing.
The court initially appeared to determine that Abigail’s Fifth
Amendment rights were not implicated in this adjudication
because § 43-279(1)(c) addressed only the right of the juve-
nile to remain silent. However, after Abigail had testified, the
court appeared to recognize that Abigail’s Fifth Amendment
rights were implicated in this adjudication, and the court
cited § 43-279.01, which refers to informing the “parties” to
an adjudication of their “[r]ight to remain silent.” We note
that for purposes of the juvenile code, “[p]arties means the
juvenile as described in section 43-247 and his or her parent,
guardian, or custodian.” Neb. Rev. Stat. § 43-245(18) (Supp.
2019). Although the court appeared to credit § 43-279.01 as
the source of a parent’s right to remain silent in an adjudica-
tion, we clarify that § 43-279.01 requires the juvenile court
to inform the parties to an adjudication of the right to remain
silent, which right stems from other sources, primarily the
Fifth Amendment to the U.S. Constitution. See, also, Neb.
- 136 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127Const. art. I, § 12 (“[n]o person shall be compelled, in any
criminal case, to give evidence against himself [or herself]”),
and Neb. Rev. Stat. § 25-1210 (Reissue 2016) (“[w]hen 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 . . .”). We note that in
this case, Abigail does not assert that the court failed in its
duty under § 43-279.01 to inform her of her right to remain
silent, and we further note that she was not prejudiced by any
such failure to inform because she did assert the right and was
therefore clearly aware of the right.
There is appellate authority in Nebraska indicating that
parents may claim a Fifth Amendment privilege against self-
incrimination in termination proceedings. See In re Interest of
Clifford M. et al., 6 Neb. App. 754, 577 N.W.2d 547 (1998).
We conclude that the privilege may also be invoked by a parent
in the adjudication phase of a juvenile proceeding.
[4-6] The state and federal Constitutions provide that no
person shall be compelled to give evidence against himself
or herself of an incriminating nature. See State v. Phillips,
286 Neb. 974, 840 N.W.2d 500 (2013). The Fifth Amendment
privilege not only permits a person to refuse to testify against
himself or herself during a criminal trial in which he or she is
a defendant, but also grants him or her the privilege to refuse
to answer questions put to him or her in any other proceeding,
civil or criminal, formal or informal, where the answers might
tend to incriminate him or her in future criminal proceedings.
State v. Phillips, supra. See In re Interest of Clifford M. et al.,
supra (citing Allen v. Illinois, 478 U.S. 364, 106 S. Ct. 2988,
92 L. Ed. 2d 296 (1986)). See, also, Behrens v. Blunk, 280
Neb. 984, 992, 993, 792 N.W.2d 159, 166 (2010) (privilege
applies “‘“‘at any stage of the proceeding’”’” and “‘“there-
fore applies not only at trial, but at the discovery stage as
well”’”), modified on denial of rehearing 281 Neb. 228, 796
N.W.2d 579 (2011). We therefore conclude that in a juvenile
adjudication hearing, as in any other civil proceeding, a parent
- 137 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127may invoke his or her Fifth Amendment privilege to refuse to
answer questions put to him or her where the answers might
tend to incriminate him or her in future criminal proceedings.
Although the court in this case initially appeared to base its
ruling that Abigail could not refuse to testify on an erroneous
understanding that she could not invoke her Fifth Amendment
privilege in this juvenile adjudication, the court ultimately
appeared to recognize that she could invoke the privilege.
However, the court denied Abigail’s motion to strike her tes-
timony because it determined that her testimony was not of
the sort that would be subject to the Fifth Amendment privi-
lege. That is, the court agreed with the State’s argument that
Abigail’s testimony was not incriminating and would not sub-
ject her to criminal prosecution. We therefore review the stan-
dards a court must consider when assessing whether to honor
an invocation of the Fifth Amendment privilege.
[7,8] We have stated that the Fifth Amendment must be
accorded a liberal construction in favor of the privilege against
compulsory self-incrimination, and thus the analysis under
the Fifth Amendment ordinarily examines an entire line of
questioning to determine whether to exclude the testimonial
evidence based on privilege. See State v. Phillips, supra (cit-
ing Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814,
95 L. Ed. 1118 (1951)). We have further explained that the
privilege “‘not only extends to answers that would in them-
selves support a conviction . . . but likewise embraces those
which would furnish a link in the chain of evidence needed to
prosecute the claimant.’” State v. Phillips, 286 Neb. at 985,
840 N.W.2d at 512 (quoting Hoffman v. United States, supra).It need only be evident from the implications of the question,
in the setting in which it is asked, that a responsive answer to
the question or an explanation of why it cannot be answered
might be dangerous because injurious disclosure could result.
State v. Phillips, supra.
Abigail argues that her testimony in this case was subject
to the Fifth Amendment privilege because the allegations in
- 138 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127support of adjudication were “almost identical” to statutory
language criminalizing child abuse. Brief for appellant at 21.
She notes that in the petition for adjudication, it was alleged
that Vladimir “lack[ed] proper parental care by reason of the
fault or habits of his parent” or that he was “in [a] situation
dangerous to life or limb or injurious to [his] health.” She
compares this to the language of Neb. Rev. Stat. § 28-707(1)
(Reissue 2016), which provides that a “person commits child
abuse if he or she knowingly, intentionally, or negligently
causes or permits a minor child to be . . . (a) [p]laced in a
situation that endangers his or her life or physical or mental
health.” She argues that if the evidence in this case could sup-
port the allegations in the petition for adjudication, then they
could also support a prosecution under § 28-707(1)(a).
[9,10] While a witness may invoke the Fifth Amendment
to avoid answering questions, the witness’ assertion of the
privilege does not by itself establish the risk of incrimina-
tion; instead, the court must make inquiry to determine itself
whether answering the questions would raise Fifth Amendment
concerns. State v. Phillips, 286 Neb. 974, 840 N.W.2d 500(2013). A trial court is required, in the exercise of sound dis-
cretion, to determine whether the witness’ claims of the Fifth
Amendment privilege are justifiable. See State v. Robinson,
271 Neb. 698, 715 N.W.2d 531 (2006). On appeal, the court’s
decision in this regard is reviewed for an abuse of discretion.
See State v. Phillips, supra.
[11] The trial judge
necessarily is accorded broad discretion in determin-
ing the merits of a claimed Fifth Amendment privi-
lege. Whether a witness’s claim of privilege against
self-incrimination is justified is a decision which rests
within the trial court’s exercise of sound discretion under
all the circumstances then present, including the setting
in which a question is asked and the nature of the testi-
mony sought.
81 Am. Jur. 2d Witnesses § 123 at 255 (2015).
- 139 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127The court in this case overruled Abigail’s motion to strike
her testimony, because after hearing the entirety of her testi-
mony, the court determined that her testimony was not incrimi-
nating and it doubted that a prosecutor could “charge [Abigail]
with anything based on her testimony [that day].” The county
attorney who was representing the State agreed that he had “no
reason to believe there’s any crime that has been committed
by [Abigail],” and he further stated that he had “no . . . inten-
tion of filing” any charges against Abigail and “would grant
any immunity for that testimony for any charges.” On appeal,
the State repeats its argument that Abigail’s testimony was
not incriminating, and it further argues that her testimony was
“not only not incriminating, but rather exculpatory.” Brief for
appellee at 4. The State characterizes as “completely exculpa-
tory” Abigail’s testimony that “she was not present when three
of the significant injuries occurred,” that “she did not know
how other injuries had occurred,” and that “Boyd was taking
care of Vladimir when all three of the significant injuries hap-
pened.” Id.In this case, the court had broad discretion to determine
whether Abigail’s testimony was incriminating and therefore
subject to the Fifth Amendment privilege. Reviewing such
decision for an abuse of discretion, we note that the court
had valid reasons for its determination under all the circum-
stances present. The general tone of Abigail’s testimony was
to deflect blame from herself for Vladimir’s injuries and in
that sense could be considered exculpatory. Furthermore, the
court needed to consider whether there was a real threat that
Abigail would be prosecuted based on her testimony, and
in addition to the court’s own assessment that the testimony
was not incriminating, the county attorney assured the court
that he agreed with that assessment and that he had no plans
to prosecute Abigail. The court and the county attorney also
agreed that Abigail would have “immunity” of some sort in
any potential criminal prosecution.
- 140 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127Abigail notes, however, that although she denied that
Vladimir was in her care when he sustained his injuries or that
she knew what caused his injuries, she testified that the inju-
ries occurred when Vladimir was in Boyd’s care and that she
had left Vladimir in Boyd’s care. It is arguable that at a mini-
mum, Abigail’s testimony could provide a link in the chain
of evidence to prove that under § 28-707(1), she “negligently
caus[ed] or permit[ted Vladimir] to be . . . (a) [p]laced in a
situation that endanger[ed] his . . . life or physical or mental
health.” Abigail further argues that although the county attor-
ney assured the court he had no intention to prosecute Abigail
and would give her “immunity” for her testimony, there were
other authorities who could prosecute her; that the promise
of immunity was not effective, because it occurred after her
testimony; and that the authority of the court to grant such
immunity in a juvenile proceeding was questionable.
[12] We determine that in order to resolve the appeal
of the adjudication order, we need not conclusively decide
whether the court abused its discretion in its determination that
Abigail’s testimony was not incriminating. We determine that
even if the court erred in determining that Abigail’s testimony
was not subject to her invocation of the Fifth Amendment
privilege, in this adjudication proceeding, such error was not
reversible error. In a civil case, the admission or exclusion of
evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party. Weyh v. Gottsch,
303 Neb. 280, 929 N.W.2d 40 (2019). We determine that
the admission of Abigail’s testimony in this adjudication did
not unfairly prejudice a substantial right of Abigail’s for two
main reasons.
First, we determine that the testimony did not unfairly
prejudice Abigail’s rights with respect to the adjudication of
Vladimir because, as we discuss in connection with Abigail’s
assignment of error regarding sufficiency of the evidence,
there was sufficient evidence to adjudicate Vladimir even
if Abigail’s arguably incriminating testimony were stricken.
- 141 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127Second, admission of the testimony in this adjudication did
not unfairly prejudice Abigail’s Fifth Amendment rights
because the Fifth Amendment is not violated unless and until
a person’s self-incriminating statements are used to prosecute
that person in a criminal proceeding. If the court in this adju-
dication erred in determining that Abigail’s testimony was
not incriminating, the use of such testimony in a criminal
proceeding would be subject to challenge in that criminal pro-
ceeding on Fifth Amendment grounds. We further explain this
second reason.
In Chavez v. Martinez, 538 U.S. 760, 770, 123 S. Ct. 1994,
155 L. Ed. 2d 984 (2003), a four-judge plurality of the U.S.
Supreme Court said that although the Fifth Amendment’s
self-incrimination privilege may be asserted in a civil pro-
ceeding, “a violation of the constitutional right against self-
incrimination occurs only if one has been compelled to be
a witness against himself in a criminal case.” In a separate
concurrence, two judges did not join the entirety of the plu-
rality’s analysis but agreed that “the core of the guarantee
against compelled self-incrimination is the exclusion of any
such evidence” in a criminal prosecution. Chavez v. Martinez,
538 U.S. at 777 (Souter, J., concurring; Breyer, J., joins). The
four-judge plurality noted that courts had created certain “pro-
phylactic rules” that were not in themselves rights protected
by the Fifth Amendment but were “designed to safeguard the
core constitutional right protected by the Self-Incrimination
Clause.” Chavez v. Martinez, 538 U.S. at 770. Such prophy-
lactic rules included rules allowing invocation of the Fifth
Amendment in noncriminal cases to refuse to provide testi-
mony “unless that testimony has been immunized from use
and derivative use in a future criminal proceeding before it
is compelled.” Chavez v. Martinez, 538 U.S. at 770-71. The
plurality stated that in order to prevent waiver of the right
against self-incrimination, “it is necessary to allow assertion
of the privilege prior to the commencement of a ‘criminal
case’ to safeguard the core Fifth Amendment trial right,” and
- 142 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127that “insistence on a prior grant of immunity is essential to
memorialize the fact that the testimony had indeed been com-
pelled and therefore protected from use against the speaker in
any ‘criminal case.’” Chavez v. Martinez, 538 U.S. at 771-72.
As part of this analysis, the plurality in Chavez v. Martinez
cited, inter alia, an earlier decision of the Court in which
it stated:
[A] witness protected by the privilege may rightfully
refuse to answer unless and until he is protected at least
against the use of his compelled answers and evidence
derived therefrom in any subsequent criminal case in
which he is a defendant. . . . Absent such protection, if
he is nevertheless compelled to answer, his answers are
inadmissible against him in a later criminal prosecution.
Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S. Ct. 316, 38 L. Ed.
2d 274 (1973) (citations omitted).
Based on the precedent of Chavez v. Martinez and Lefkowitz
v. Turley, we determine that even if the court abused its
discretion when it determined Abigail’s testimony was not
incriminating and not protected by her invocation of the Fifth
Amendment privilege, Abigail’s Fifth Amendment rights were
not violated by requiring her to testify in this civil proceed-
ing, and instead a Fifth Amendment violation would occur
only if the testimony were used in a criminal proceeding.
Also, as we read this authority, Abigail memorialized her
invocation of the Fifth Amendment privilege, and whether
or not her testimony was adequately protected by promises
of immunity made by the State and the court, her testimony,
if incriminating, would be inadmissible against her in a later
criminal prosecution.
We conclude that Abigail could and did invoke her Fifth
Amendment privilege in this adjudication. However, we fur-
ther conclude that any error on the part of the court when it
determined her testimony was not incriminating and therefore
not subject to the Fifth Amendment privilege is not reversible
error in this adjudication.
- 143 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127Even Without Abigail’s Arguably Incriminating
Testimony, There Was Sufficient Evidence
to Support the Adjudication.
Abigail next claims that the evidence in this case was not
sufficient to support the adjudication of Vladimir. We conclude
that the evidence was sufficient.
The State in its petition alleged that Vladimir was a child
who “lack[ed] proper parental care by reason of the fault or
habits of his parent, guardian, or custodian” or that he was “a
juvenile who is in [a] situation dangerous to life or limb or
injurious to [his] health.” Both are statutory bases for adjudi-
cating a child to be under the jurisdiction of a juvenile court
pursuant to § 43-247(3)(a). In the adjudication order, the court
concluded that based on the evidence, “Abigail’s interest in
maintaining her relationship with . . . Boyd, or her lack of
concern about the safety and well[-]being of Vladimir, or both,
caused Vladimir to have been placed in the position of sustain-
ing on multiple occasions the injuries he suffered.” We read
this as finding that both asserted bases for the adjudication
were present—that is, Vladimir was “in [a] situation dangerous
to life or limb or injurious to [his] health” because he had suf-
fered injuries on multiple occasions, and he “lack[ed] proper
parental care by reason of the fault or habits of his parent”
because Abigail had placed him in such situation when she
left him in Boyd’s care and in doing so demonstrated a lack of
concern about his safety and well-being.
[13-15] 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
§ 43-247(3)(a). In re Interest of Jeremy U. et al., 304 Neb.
734, 936 N.W.2d 733 (2020). And the State then has the bur-
den to prove the allegations of the petition by a preponderance
of the evidence, which is the equivalent of the greater weight
of the evidence. Id. The greater weight of the evidence means
evidence sufficient to make a claim more likely true than not
true. Id.- 144 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127As we indicated above, even if Abigail’s testimony that was
arguably incriminating were excluded, there was sufficient evi-
dence to support the adjudication. The evidence indicated that
in February 2018, Abigail had sought a medical examination
of Vladimir based on concerns that Boyd had abused him, and
that thereafter in March, she left Vladimir in Boyd’s care and
on at least three occasions he had suffered injuries that medi-
cal personnel believed to be the result of abuse. This evidence
was sufficient to adjudicate Vladimir to be under the jurisdic-
tion of the juvenile court on either or both statutory bases.
The court could find by the greater weight of the evidence
that Vladimir was “in [a] situation dangerous to life or limb
or injurious to [his] health” because on multiple occasions, he
had suffered injuries consistent with abuse. The court could
also find by the greater weight of the evidence that Vladimir
“lack[ed] proper parental care by reason of the fault or habits
of his parent” because Abigail had placed him in that situation
by putting him in Boyd’s care despite indications that Boyd
had abused him.
The court addressed the Fifth Amendment issue in its order
and stated that Abigail’s testimony was generally consistent
with the depositions of the doctor and the nurse, which deposi-
tions were admitted into evidence without objection prior to
Abigail’s testimony. We note that the testimony of the sheriff’s
deputy was also generally consistent with Abigail’s testimony.
The court’s discussion of the Fifth Amendment issue in its
order indicates that the court’s decision was not dependent on
the content of Abigail’s testimony and that the court thought
adjudication was supported by the other evidence. We agree
that it was.
The court noted in its order that where Abigail’s testi-
mony differed from the testimony and depositions was whether
Abigail had told the deputy in February 2018 that she would
no longer leave Vladimir in Boyd’s care and whether she sus-
pected that the injuries in March 2018 were caused by Boyd.
The deputy testified that she had said she would no longer
- 145 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127leave Vladimir in Boyd’s care, and Abigail testified that she
did not recall saying that. The nurse’s notes attached to her
deposition indicate that Abigail had made statements to the
effect that she had concerns that Boyd had hurt Vladimir;
Abigail testified that she believed Boyd’s explanations for how
the injuries occurred and that she did not believe the injuries
were the result of abuse. To the extent Abigail’s testimony
varied from the other evidence, the court apparently found the
other evidence more credible.
Abigail makes two specific arguments regarding suffi-
ciency of the evidence. First, she argues that the court applied
a “strict liability” standard by holding her responsible for
anything that happened to Vladimir while he was in another
person’s care. Brief for appellant at 32. We do not read the
court’s order as finding that Abigail was “responsible” for the
injuries in the sense that she directly caused them. To find that
Vladimir was in a dangerous or injurious situation, it was not
necessary to show a parent caused the injury, just that he was
in a situation wherein he was at risk for such injury. And to
find lack of proper parental care, it was also not necessary to
show Abigail was responsible for the injury; instead, it was
enough to show she had put him in the situation that placed
him at risk.
Abigail also argues that it was unfair to base the adjudica-
tion in part on her testimony that at the time of the hearing,
she was still in a relationship with Boyd. She argues she was
not given notice that the continuing relationship would be
a basis for the adjudication. However, we read the court’s
findings to be based on the circumstances that existed in
February and March 2018 and that were alleged in the peti-
tion rather than on Abigail’s continuing relationship with
Boyd at the time of the hearing. We further determine that the
evidence of circumstances that existed in February and March
2018 was sufficient to support the adjudication and that evi-
dence of the continuing relationship was not necessary to the
court’s ruling.
- 146 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
IN RE INTEREST OF VLADIMIR G.
Cite as 306 Neb. 127CONCLUSION
We conclude that Abigail could invoke her Fifth Amendment
privilege in this juvenile adjudication and that she did so.
We further conclude that even if the court erred in failing
to determine that at least part of Abigail’s testimony was
incriminating and therefore protected by her invocation of
her Fifth Amendment privilege, such error was not revers-
ible error; Abigail did not suffer unfair prejudice, because
there was sufficient evidence to support the adjudication with-
out such testimony and because her Fifth Amendment rights
were not violated in this civil proceeding. We further con-
clude that there was sufficient evidence to support the adju-
dication that Vladimir was a child within the meaning of
§ 43-247(3)(a). We therefore affirm the county court’s order
of adjudication.
Affirmed.
Heavican, C.J., not participating.