May 04, 2021

Nebraska

ABUSE

EVIDENCE

State v. Olbricht, 2016 WL 6037966 (Neb.). Circumstantial evidence was sufficient to support defendant’s conviction for knowing and intentional child abuse resulting in serious bodily injury even though medical testimony could not show injuries occurred at discrete time when child was under defendant’s sole care. Child was battered child who received multisystem injuries over time, her brain bleed and liver laceration were intentional and not accidental, child received variety of suspicious prior injuries while in defendant’s care, and babysitter testified child told her it was defendant who hurt her.

PRIOR BAD ACTS

State v. Cullen, 2015 WL 6769139 (Neb.). Defendant appealed conviction on intentional child abuse resulting in death while she cared for infant as family’s nanny. Prosecution intentionally did not present evidence of prior injuries that infant suffered in defendant’s care at rule 404 hearing and limited evidence to prior daycare incidents. Evidence of injuries to infant victim while under defendant’s care during weeks before date victim sustained fatal injuries were inextricably intertwined with charged crime. Rule precluding admission of evidence of other crimes, wrongs, or acts did not apply.

SEXUAL ABUSE

State v. Brauer, 841 N.W.2d 201 (Neb. 2013). Where defendant was convicted of third degree sexual assault of a child, though the incident involved brief touching of a child’s genital area over the clothes, the evidence was sufficient for the conviction. Defendant admitted the contact was intentional, and his statement that he felt a “spark” during the incident and became suicidal after the incident was reported allowed the inference that the contact had been for the purpose of sexual gratification.

TESTIMONY

State v. Draper, 295 Neb. 88 (2016). In grandfather defendant’s trial for intentional child abuse resulting in serious bodily injury and death, any error in allowing mother to testify about cause of injury above child’s ear was harmless, despite admission that she did not see injury occur. Prosecution presented other evidence of old rib fractures, recent skull and pelvic fractures, and ruptured bowel. Medical experts testified cause of injuries was likely result of abuse or trauma.

ADOPTION

OPEN ADOPTION

Monty S. v. Jason W., 2015 WL 3429377 (Neb.). Natural parents each signed consent and relinquishment after child was born, indicating they gave up parental rights and consented to child’s private adoption. They later filed petition seeking return of child from adoptive parents. Court found open adoption invalidated consents and relinquishments and adoptive parents appealed. Trial court’s failure to admit evidence of why adoptive parents stopped allowing natural parents to visit child was harmless.

PLACEMENT

In re Karlie D., 811 N.W.2d 214 (Neb. 2012). Juvenile court did not abuse its discretion in placing child with grandmother following termination trial. Contrary to the agency’s assertion, grandmother’s age and history of surgeries were not dispositive where there was no sign of any current inability on her part to care for the child.

MINORS

Carlos H. v. Lindsay M., 815 N.W.2d 168 (Neb. 2012). In case where father contested mother’s voluntary placement of child for adoption, trial court lacked jurisdiction because neither parent, both aged 15, was represented by guardians or next friends. Under state law, a minor cannot maintain a case under their own name, rather the court could appoint a guardian or next friend to prosecute it on the minor’s behalf.

DELINQUENCY

MENTAL ILLNESS

In re Christopher T., 801 N.W. 2d 243 (Neb. 2011). Juvenile court properly found child delinquent and placed him in the care of the state; the testimony of the psychologist who evaluated him indicating that he had a high risk of reoffending sexually, his mental health diagnoses, and behavior in shelter placement, supported finding by clear and convincing evidence.

DEPENDENCY

DISPOSITION

In re Damien S., 815 N.W.2d 648 (Neb. Ct. App. 2012). Trial court did not err in removing child at disposition where removal was based on boyfriend’s assault of mother in child’s presence. Despite fact that mother left boyfriend’s home and planned to end the relationship, other factors supported continuing agency custody, including mother’s failure to take medication for her mental health, her new residence being in the home of another individual involved with the agency, and fact that her parental rights to older siblings had been involuntarily terminated.

DOMESTIC VIOLENCE

In re Miah T., 2016 WL 400169 (Neb. Ct. App.). Juvenile court order requiring unmarried father to attend domestic violence intervention course and victims’ impact group before he would be considered as placement for child who had been removed from mother’s custody was reasonable. Although provisions were unrelated to circumstances that caused child to be adjudicated dependent, there was evidence that father might not be able to provide child with home free from domestic violence, including evidence of altercation with mother after juvenile court proceedings began.

DUE PROCESS

In re Marcos S.A., 807 N.W.2d 794 (Neb. Ct. App. 2011). At permanency planning hearing involving children who had been adjudicated dependent, trial court violated father’s due process rights by awarding legal custody of children to the mother without providing notice to him or giving him a chance to be heard on motion for custody. Order granting custody to the mother, combined with earlier order denying visitation between father and children, deprived father of all of his parental rights without notice and opportunity to be heard.

JURISDICTION

In re Breana M., 795 N.W.2d 660 (Neb. Ct. App. 2011). Trial court improperly granted motion to dismiss on jurisdictional grounds in dependency adjudication proceeding regarding child who lived intermittently with relatives in different counties; dependency statute’s jurisdiction is not limited by county of residence and improper venue may be corrected by discretionary transfer after adjudication.

PERMANENCY

In re LaVanta S., 2016 WL 7036621 (Neb.). After juveniles were adjudicated mentally ill and dangerous and temporarily placed with child welfare agency, agency recommended continuing permanency plan of reunification while making concurrent permanency plans of guardianship. Juvenile court entered separate orders changing permanency objectives from reunification to guardianship and parents appealed. Juvenile court lacked statutory authority to change permanency plan without adjudicating juveniles as lacking proper parental care, support, or supervision.

REUNIFICATION

In re Diana M., 825 N.W.2d 811 (Neb. Ct. App. 2013). Trial court’s order changing goal from reunification to adoption was proper where despite mother being provided numerous services to help her keep her children safe she continued to allow contact with boyfriend who sexually abused her children.

In re Samantha L., 839 N.W.2d 265 (Neb. 2013). While agency had failed to provide reasonable efforts to reunify for first year children were in care, by second permanency hearing they had made such efforts. Thus, trial court could properly find no further efforts were required when parents failed to attend therapy, drug testing, and would not communicate with the agency. 

SUBSTANCE ABUSE

In re Taeven Z., 812 N.W.2d 313 (Neb. Ct. App. 2012). Trial court erred in finding child dependent based on mother taking morphine which was not prescribed to her. While mother’s use of an unprescribed over-the-counter medication was illegal, no evidence was offered to show that it made her child unsafe.

FOSTER PARENTS

SAME-SEX COUPLES

Stewart v. Heineman, 296 Neb. 262 (2017). Three couples filed suit against the state of Nebraska based on a Department of Health and Human Services’ (DHHS) memorandum restricting gay and lesbian individuals and couples from being considered as foster or adoptive parents. The lower court required the policy to be rescinded and prevented the state from enforcing similar bans. The state argued that the couples’ claims were not ripe and were moot. The Nebraska Supreme Court disagreed, holding the claims were ripe for review and were not rendered moot by the state’s actions.

GUARDIANSHIP

TERMINATION

In re Lakota Z., 804 N.W.2d 174 (Neb. 2011). In a proceeding to end a guardianship of children with paternal grandparents and reunify children with their biological father, the grandparents had the burden to show by clear and convincing evidence that the father was unfit. Although the guardianship was ordered under the juvenile court’s jurisdiction, due process still required a showing of unfitness before terminating the parent’s rights. Full Summary

TERMINATION OF PARENTAL RIGHTS

BEST INTERESTS

Kenneth C. v. Lacie H., 839 N.W.2d 305 (Neb. 2013). Where mother petitioned to terminate father’s rights, district court properly found grounds via abandonment, but improperly concluded termination was in child’s best interests. Little evidence was presented about father’s strengths and weaknesses as a parent or that he posed harm to child if he had the visitation he sought. Evidence was largely based on emotional issues father had many years earlier, and were not shown to still be problems.

DUE PROCESS

In re Travis B., 809 N.W.2d 819 (Neb. Ct. App. 2012). Father’s right to due process in termination proceeding was violated when trial continued in his absence after jail requested a habeas corpus writ rather than the transport order that had been provided and the court did not follow up because father was in federal not state custody. This failure deprived father of the opportunity to participate at trial and was in error.

GROUNDS

In re Kendra M., 814 N.W.2d 747 (Neb. 2012). In case where mother had agreed to place her children in guardianship with foster parents after having difficulty complying with her case plans, children were in ‘out of home placement’ for purposes of termination ground. Ground allows termination of parental rights of children placed out of the home for 15 of the last 22 months. Fact that mother agreed to placement that may have been meant to be temporary did not distinguish it from other out-of-home placements under applicable statutes.

INCARCERATION

In re Zanaya W., 2015 WL 3525202 (Neb.). Parents filed separate appeals to termination of their parental rights. Termination of mother’s rights did not violate due process and was upheld. Father was serving three-to-five-year sentence for possession with intent to distribute and admitted daily marijuana use while children were in his care. His admission that he failed to provide children necessary care and protection provided adequate factual basis for termination under statutory ground that children had been in out-of-home placement for 15 of last 22 months.

INDIAN CHILD WELFARE ACT

In re Nery V., 832 N.W.2d 909 (Neb. Ct. App. 2013). Termination orders were vacated because Rosebud Sioux Tribe was not sent a copy of the termination petition as required by state Indian Child Welfare Act. Initial petition further violated Act by failing to allege that active efforts were made or that continued custody with the parents would cause serious emotional or physical harm to children. 

SIBLINGS

In re Meridian H., 798 N.W.2d 96 (Neb. 2011). Though sibling bonds are an important consideration in best interests determinations, older siblings who had been adopted before birth of child did not have a constitutional right to continue a sibling relationship and Fostering Connections Act did not create a statutory right for minor adopted siblings since the Act speaks to notice to adult relatives and visitation and placement of siblings in care, and adopted siblings were neither adults nor under the care or control of the agency during the child’s case.

SUBSTANCE ABUSE

In re Keisha G., 840 N.W.2d 562 (Neb. Ct. App. 2013). Juvenile court improperly terminated father’s parental rights on substance abuse unfitness ground where no evidence showed his drug use had threatened his child. Most of the evidence of his drug involvement occurred before the child was born, and a more recent incident was just an allegation. The only evidence of possible impairment due to substances was trying to put a jacket on child over her backpack during a visit. 

TIME IN CARE

In re Mya C., 2015 WL 7254315 (Neb. Ct. App). Sufficient evidence existed to support finding that father’s children were in out-of-home placement for 15 of most recent 22 months, as statutory ground for termination of parental rights. However, evidence was insufficient to find father failed to correct adjudicated conditions or was unfit parent. He attended therapy, completed parenting class, kept tidy home, and used age-appropriate and effective techniques to discipline toddler.

TRUANCY

DISPOSITIONS

In re Rylee S., 829 N.W.2d 445 (Neb. 2013). In truancy case, where child had violently refused to go to school, behavior related to his autism condition, order for mother to disclose mental health records and undergo an assessment was improper because order was not reasonably related to correcting the dependency. Though mother reported having anxiety and receiving treatment, there was no allegation this contributed to the truancy as mother had been diligent in attempts to get child to school, even if they were unsuccessful.