|
(Cite
as: 18 Neb.App. 389, 782 N.W.2d
330) |
Court
of Appeals of Nebraska.
In
re INTEREST of EMMA J., a child under 18 years of age.
State
of Nebraska, appellee,
v.
Geneo
J., appellant.
No.
A-09-1031.
May
11, 2010.
**331
Syllabus
by the Court
*389
1. Juvenile
Courts: Appeal and Error.
Juvenile cases are reviewed de novo on the record, and an appellate court is
required to reach a conclusion independent of the juvenile court's
findings.
2.
Evidence:
Appeal and Error.
When the evidence is in conflict, 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.
3.
Juvenile
Courts: Jurisdiction: Proof.
In order for a juvenile court to assume jurisdiction of minor children under
Neb.Rev.Stat. ? 43-247(3)(a) (Reissue 2008), the State must prove the
allegations of the petition by a preponderance of the evidence.
4.
Juvenile
Courts: Evidence: Proof.
Neb.Rev.Stat. ? 43-247(3)(a) (Reissue 2008) requires that the State prove the
allegations set forth in the petition by a preponderance of the evidence in
cases involving both non-Indian and Indian children.
Laura
A. Lowe, P.C., Lincoln, for appellant.
Gary
Lacey, Lancaster County Attorney, and Barbara J. Armstead, Gering, for
appellee.
INBODY,
Chief Judge, and SIEVERS and CASSEL, Judges.
INBODY,
Chief Judge.
INTRODUCTION
Geneo
J. appeals from an order of the separate juvenile court of Lancaster County,
adjudicating his minor child, Emma J., as a juvenile within the meaning of
Neb.Rev.Stat. ? 43-247(3)(a) (Reissue 2008) and placing her outside of the
home.
STATEMENT
OF FACTS
Procedural
History.
On
May 20, 2009, the State filed a petition alleging that Emma was a child within
the meaning of ? 43-247(3)(a) by reason that Emma lacked proper parental care by
reason of the *390
faults or habits of her father, Geneo, and her mother, Venessa J. Specifically,
the petition alleges that in 2007, Emma's older sisters, Eva J. and Shakeela J.,
were adjudicated as a result of being subjected to inappropriate physical
discipline by Geneo, and that Venessa **332
had made threatening and rejecting statements and failed to protect Eva and
Shakeela. The petition alleges that services designed to correct those matters
were put into place, but did not correct the issue; that Geneo and Venessa
relinquished their parental rights to Shakeela; and that Eva had turned 19 years
of age and was no longer subject to the juvenile court's jurisdiction. The
petition alleges that on May 18, 2009, Emma reported inappropriate discipline by
Geneo, and that Geneo had threatened to force Emma to have an abortion. The
petition also alleges that ?active efforts have been made to provide remedial
services and rehabilitative programs to prevent the breakup of the Indian family
and that these efforts have proven unsuccessful.? As noted, the petition asserts
that the case involves an ?Indian family,? but does not contain any specific
references to the Indian Child Welfare Act (ICWA). A supplemental transcript was
filed by the State which indicates that on June 10, the Omaha Tribe of Nebraska
filed a motion to intervene because Emma was ?an ?Indian child? as defined by
the [ICWA], 25 U.S.C. ? 1903(4) and the Nebraska [ICWA].?
Additionally,
the State filed an ex parte motion for temporary custody, which was granted by
the juvenile court, and Emma was placed with a foster family, specifically the
family with whom her older sisters, Eva and Shakeela, were placed and where
Shakeela still resided. Also included by the State in the supplemental
transcript is an order continuing temporary custody with the Nebraska Department
of Health and Human Services (DHHS), which order indicates that the juvenile
court determined that Emma's therapist was an expert witness who testified that
continued custody of Emma with Geneo would result in serious emotional or
physical damage and that active efforts ?including a pretreatment assessment,
visitation for [Venessa], counseling services, and a comprehensive family
assessment have been made or are being offered to the family to provide remedial
services and rehabilitation programs *391
designed to prevent the breakup of the family and those efforts have proved
unsuccessful.?
On
August 5, 2009, the State also filed a motion to allow Emma to testify in
chambers alleging that Geneo's or Venessa's presence during her testimony could
be harmful to her. After a hearing on the motion, the juvenile court sustained
the State's motion and allowed Emma to testify in court, with Geneo and Venessa
outside of the courtroom in conference rooms. During which time, Geneo's counsel
was given leave every 15 minutes to leave the courtroom and confer with Geneo.
Also, Geneo was allowed to view the recording of the testimony and further
examine Emma at the continued hearing date.
On
August 20 and September 29, 2009, the matter came on for hearing for
adjudication on the petition. Geneo and Venessa entered denials on the
allegations, and testimony and evidence were submitted to the juvenile
court.
Adjudication
Hearing Testimony.
At
the adjudication hearing, Emma testified that she was 15 years old and was a
junior at a high school in Lincoln, Nebraska. Emma testified that she was
involved in high school softball and basketball and that during the spring of
2009, she participated on the high school track team. During a track meet on May
14, Emma participated in the 800-meter relay race, but her family did not see
her run because they arrived after her race had already concluded. Emma
indicated that after her race, she hung out with friends and her boyfriend. Emma
agreed that her parents did not approve of her boyfriend because they believed
him to be a bad influence **333
and that she was not supposed to be around him. Emma testified that as a result
of hanging out with her boyfriend at the track meet, she was grounded and
ordered by Geneo to quit the track team.
Emma
testified that on May 15, 2009, a Friday, Geneo picked up both her and one of
her brothers, Tommy J., and inquired of Tommy as to whether Emma had been with
her boyfriend that day. Tommy indicated that he had seen Emma and her boyfriend
speaking at school. Emma testified that she got out of the car and went upstairs
to her room because she knew she was going to be in trouble for speaking to her
*392
boyfriend. Emma explained that Geneo followed her to her room, yelled at her,
and hit her with a closed fist above her left ear on the back of her head and
that she fell down. Emma testified that Geneo ordered her to go downstairs and
stand on her tiptoes in the kitchen corner. Emma testified that once she was in
the corner, Geneo continued to yell at her, compared her to her older sisters,
and told her he wished he had no daughters. Emma testified that during this
time, her mother, Venessa, was home, along with Tommy and her older half
brother, Angelo S., and their small children, but they had gone upstairs to
avoid the yelling. Emma explained that Geneo hit her approximately five times
with a closed fist and grabbed her around the neck and threw her across the
kitchen. Emma explained that it hurt when Geneo hit her and that she caught
herself as she hit the counter and the stove. Emma testified that at that time,
her mother came in and told Geneo to stop.
Emma
testified that Geneo left the house to go to her boyfriend's house and that she
remained in the corner because she was upset and did not want to speak with
anyone. Shortly thereafter, Geneo returned and the police also arrived at the
home. Emma testified that Geneo told her to go wash her face and that he then
ordered her to come and speak with the police. Emma explained that two police
officers were outside of the home and that she did not tell either officer about
the incident which had just taken place with Geneo because both Geneo and
Venessa were standing right there and she was scared to tell the police
anything.
Emma
testified that she was grounded and that no other incident occurred between her
and Geneo during the weekend. Emma indicated that on Monday, she did not want to
return home and that instead, she contacted her sister Shakeela. Emma testified
that she told her sisters and their foster mother about the incident which had
occurred on Friday and that she contacted the police to file an abuse report.
Emma testified that when the police arrived at the foster family's home, she
told a police officer everything about Friday's incidents, including that she
was scared to return home. Emma also indicated that Geneo had thought she was
pregnant, even though she was not and had not told anyone that she
was.
*393
Emma also testified that in February 2009, Geneo had hit her in the head with a
closed fist. Emma explained that when she was younger, Geneo used a belt to
discipline her, but that as she got older, he used his fists and hands. Emma
also explained that on numerous occasions, Geneo would call her a ?ho,? ?whore,?
and ?slut.?
Chris
Fields, an officer with the Lincoln Police Department, testified that on May 15,
2009, he responded to a call for a child welfare check of Emma at Geneo and
Venessa's residence. Fields testified that he spoke with Geneo and Emma and that
he did not observe any marks on Emma's face or neck. Fields testified that Emma
refused to step away from the house and that he was not able to speak with Emma
**334
outside of the presence of Geneo. Fields testified that Emma was crying and
upset and indicated to him she was grounded, but that she did not tell Fields
she had been hurt by Geneo. Fields explained that as a result of his contact
with Geneo and Emma, he did not feel further action was necessary, and that he
believed Emma was safe.
Tommy,
one of Emma's older brothers, testified that on May 15, 2009, he told Geneo that
Emma had been with her boyfriend and Geneo called Emma to come downstairs when
Geneo came in the house. Tommy testified that Geneo was not yelling at Emma, but
he simply had a deep voice. Tommy testified that he saw Emma in the corner in
the kitchen and that he heard a loud bang from the kitchen area around that
time, but did not see anything else because he and the other members of the
family were upstairs. Tommy testified that the family was together throughout
the weekend and that Emma did not talk about any injuries.
Angelo,
Emma's older half brother, testified that he was at Geneo's home on May 15,
2009, and heard Geneo yelling at Emma. Angelo also heard a loud bang from the
kitchen during the yelling, but he did not see anything because he was upstairs.
Angelo testified that when he returned downstairs, Geneo was gone and Emma was
standing in the corner. Angelo explained that Emma did not appear to be in any
physical distress at that time. Angelo testified that he graduated from college
that weekend and that Emma was busy during that time with her *394
mother and other friends and family planning and organizing his graduation
party.
The
director of church relations for the People's City Mission, who was Geneo's
pastor, testified that on Saturday, May 16, 2009, Geneo brought Emma to the
pastor's home to speak with her about her relationship with Geneo and the
choices she was making. Geneo's pastor testified that he did not observe any
bruises or marks on Emma and that Emma did not indicate that Geneo had harmed
her in any way. Geneo's pastor explained that Geneo was at his ?wit's end? and
that it was probably a good idea that Emma be somewhere else where she would
receive supervision that she would listen to.
Tyler
Cooper, an officer with the Lincoln Police Department, testified that on May 18,
2009, he received a call that Emma was missing and had run away. On the way to
Geneo and Venessa's home, he received another call reporting that Geneo had
abused Emma. Cooper testified that he took a runaway report from Geneo and
Venessa, during which Geneo told Cooper that he had heard Emma was pregnant and
that if he found her, he was going ?to make her have an abortion as it was his
right because he's [Emma's] father.? Cooper testified that Emma had reported to
him that Geneo had hit her on the right side of the head, made her stand in the
corner, grabbed her by the neck, threw her into the kitchen, and threw things at
her. Cooper testified that he did not see any bruising or marks on Emma and that
she did not report that Geneo had hit her five times. However, Cooper explained
that after speaking with Child Protective Services, he determined that it was
appropriate to take Emma into protective custody because Emma's circumstances
were very similar to past instances involving Geneo and Emma's older sisters and
that there was also an additional abuse report made by Emma the week before,
even though that report was unfounded.
Dawn
Moore, also an officer with the Lincoln Police Department, testified that she
was called to the foster family's residence on May 18, 2009, to take photographs
of Emma. Moore testified that she **335
took photographs of Emma's arms, back, and hips and did not observe any markings
or bruising. Moore testified that in the course of her duties, she has worked
*395
with victims of assault, and that injuries or marks are not dispositive of
whether an assault actually occurred.
Kim
Bro, an initial assessment worker for DHHS, testified that she became involved
with Emma's case in February 2009, when Emma was still living in Geneo's home.
Bro explained that on May 19, she went to Emma's high school to speak with Emma.
Bro testified that, on that same day, she also contacted Geneo and Venessa and
that Venessa indicated several times that day that she did not want to see Emma
and had wasted too much time on her older daughters and was not going to waste
any more time with Emma. Bro testified that Geneo also indicated that he did not
want to see Emma and further that he did not understand what the problem was
because ?he had done nothing to her worse than had been done to him in prison.?
Bro indicated that during each of her conversations with Geneo, he was very
angry, and that she ended several conversations with him because he would become
verbally abusive. Bro testified that she conducted two separate in-person
interviews with Geneo and Venessa, in addition to the various telephone
conversations. Bro testified that she knew other people were in the home during
the May 15 incident, but she did not speak with them as Geneo had told her she
was not allowed to speak with them. Bro testified that, in her opinion, she did
not recommend that Emma be placed with Geneo or Venessa because she was
concerned for Emma's safety based upon the allegations of abuse.
After
taking the matter under advisement, the juvenile court found that all of the
allegations in the petition were true by clear and convincing evidence,
adjudicated Emma as a child within the meaning of ? 43-247(3)(a), and determined
that Emma lacked proper care by reason of the fault or habits of Geneo and
Venessa. The juvenile court found that active efforts have been made to provide
remedial services and rehabilitative programs to prevent the breakup of the
Indian family and that those efforts have been unsuccessful. The court also
ordered that all temporary orders issued in the case remain in full force and
effect pending a predisposition report to be completed by DHHS. From this order,
Geneo has timely appealed. Venessa did not file a notice of appeal.
*396
ASSIGNMENTS OF ERROR
Geneo
assigns that the juvenile court erred by adjudicating Emma as within the meaning
of ? 43-247(3)(a), determining that the active efforts were made to prevent the
breakup of the Indian family, and continuing out-of-home placement orders
without the expert testimony required under ICWA. See Neb.Rev.Stat. ?? 43-1501
to 43-1516 (Reissue 2008).
STANDARD
OF REVIEW
[1]
Juvenile cases are reviewed de novo on the record, and an appellate court is
required to reach a conclusion independent of the juvenile court's findings.
In
re Interest of Taylor W.,
276 Neb. 679, 757 N.W.2d 1 (2008); In
re Interest of Jagger L.,
270 Neb. 828, 708 N.W.2d 802 (2006); In
re Interest of Shayla H.,
17 Neb.App. 436, 764 N.W.2d 119 (2009). 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.
In
re Interest of Jagger L., supra.
ANALYSIS
Adjudication.
Geneo
contends that the juvenile court erred by adjudicating Emma as a child
**336
within the meaning of ? 43-247(3)(a). Specifically, Geneo argues that, in
accordance with In
re Interest of Phoenix,
270 Neb. 870, 708 N.W.2d 786 (2006), when adjudicating a petition involving an
Indian family, the State has a heightened burden to prove the allegations by
clear and convincing evidence. The State argues that, for the adjudication phase
of the proceedings, the burden of proof remains a preponderance of the
evidence.
Let
us start with our review of In
re Interest of Phoenix, supra.
We find that Geneo's reliance upon this case for the proposition of the
heightened burden of proof for an ICWA adjudication is misplaced. A closer
reading of In
re Interest of Phoenix
indicates that the language from which Geneo chooses to rely upon, in full,
deals with the burden of proof for the termination of parental rights for
non-Indian children and does not place upon the State the burden of proving the
*397
allegations in an adjudication petition by clear and convincing
evidence.
We
agree with the State that there is no authority for an enhanced burden of proof
in an ICWA adjudication; there is, however, an indication in the cases involving
said subject matter that the standard most generally applied at the juvenile
court level in ICWA adjudication proceedings is clear and convincing evidence,
although, the subject has not been directly addressed as a result of deciding
the cases on other grounds. See, In
re Interest of Shayla H., supra
(trial court determined that State proved allegations contained in adjudication
petition by clear and convincing evidence; assignment of error not addressed as
case was reversed and remanded on other grounds); In
re Interest of Dakota L.,
14 Neb.App. 559, 712 N.W.2d 583 (2006) (trial court found that ICWA adjudication
required enhanced burden of proof by clear and convincing evidence which was
assigned as error by appellant but not addressed as case was reversed and
remanded on other grounds); In
re Interest of Enrique P. et al.,
14 Neb.App. 453, 709 N.W.2d 676 (2006) (at adjudication hearing, trial court
informed mother that burden of proof was enhanced to clear and convincing
evidence as result of children's tribal enrollment status, but adjudicated
children based upon preponderance of evidence, although no direct appeal was
perfected from adjudication).
[2]
Generally, at the adjudication stage, in order for a juvenile court to assume
jurisdiction of minor children under ? 43-247(3)(a), the State must prove the
allegations of the petition by a preponderance of the evidence. Neb.Rev.Stat. ?
43-279.01(3) (Reissue 2008); In
re Interest of B.R. et al.,
270 Neb. 685, 708 N.W.2d 586 (2005); In
re Interest of Rebekah T. et al.,
11 Neb.App. 507, 654 N.W.2d 744 (2002).
[3]
The language of Nebraska's ICWA statutes does not specifically set forth any
particular standard of proof for an adjudication proceeding; it does, however,
expressly require the State to prove by clear and convincing evidence in the
instance where a party is ?seeking to effect a foster care placement of, or
termination of parental rights, to an Indian child.? ? 43-1505(4). Whereas, ?
43-247 specifically states *398
that ?[n]otwithstanding the provisions of the Nebraska Juvenile Code, the
determination of jurisdiction over any Indian child as defined in section
43-1503 shall be subject to the Nebraska [ICWA]....? Therefore, having no
language set forth within the ICWA statutes to indicate a heightened or enhanced
burden of proof for the adjudication phase of the juvenile proceedings, we find
that ? 43-247(3)(a) requires that the State prove the allegations set forth in
the petition by a preponderance of the evidence in **337
cases involving both non-Indian and Indian children.
[4]
Having made this determination, we turn to Geneo's argument that the State
failed to meet its burden of proof, notwithstanding his assertion that the
burden of proof for adjudicating a juvenile under ICWA is enhanced. Geneo argues
that there was a ?[l]ack of evidentiary nexus between [the] previous
adjudication involving Shakeela and Eva and [the] risk of harm to Emma? and,
furthermore, that there was no evidence that Geneo's statement to law
enforcement that he would force Emma to have an abortion presented a situation
of risk to Emma. Brief for appellant at 18 (emphasis omitted). Geneo contends
that these circumstances are a direct result of ?Emma's grand plan? to get what
she wanted through fabrication and manipulation. Brief for appellant at
20.
In
this case, the petition alleges that Emma's two older sisters were adjudicated
in 2007 as a result of Geneo's subjecting them to inappropriate physical
discipline and Venessa's failure to protect, that Geneo subjected Emma to
inappropriate discipline, that Geneo threatened to force Emma to have an
abortion, and that the matters leading to the adjudication of Emma's sisters
remained uncorrected and placed Emma at risk of harm.
The
record indicates that subsequent to the adjudication of Eva and Shakeela, Geneo
and Venessa relinquished their parental rights to Shakeela, but Eva had turned
19 years of age and was no longer subject to the juvenile court's jurisdiction.
The record indicates that the allegations arising out of Eva and Shakeela's
petition are nearly identical to those involving Emma. Emma testified that on
May 15, 2009, Geneo discovered that she had been talking to her boyfriend, even
though *399
Geneo had forbidden her to do so. Emma testified that Geneo yelled at her and
hit her several times in the back of the head with a closed fist, pushed her
down, and ordered her to go to the kitchen and stand in the corner. Emma
testified that while she stood in the corner, Geneo continued to yell and hit
her in the back of the head. Emma explained that Geneo called her a ?ho,?
?whore,? and ?slut.? Emma explained that Geneo grabbed her around her neck and
threw her across the kitchen, at which point Venessa intervened and told Geneo
to stop. Emma explained that when she was younger, he would discipline her by
hitting her with a belt, but that as she got older, he would hit her with his
fists and hands. Emma testified that she did not tell the police what had
occurred when they were at the home on May 15, 2009, because she was scared
since her mother and father were there. Emma testified that she did not call the
police and that she participated in graduation events for her half brother
during the weekend without incident. Emma explained that on Monday, May 18, she
told Shakeela what happened on the Friday before and that she did not want to go
home on Monday because she was still scared.
Emma
testified that in the past, Geneo had accused her older sisters of being
pregnant and had thought he assumed the same of her even though Emma testified
that she was not pregnant and had never told him or anyone else that she was
pregnant. Furthermore, Cooper testified that he took a runaway report from
Geneo, during which time Geneo told Cooper that he had heard Emma was pregnant
and that if he found her, he was going ?to make her have an abortion as it was
his right because he's [Emma's] father.?
Geneo
entered a denial of the allegations contained within the petition and presented
testimony to refute Emma's assertions, generally attempting to show
inconsistencies**338
in Emma's testimony regarding specific timeframes of the incident and Emma's
continued contact with her boyfriend. However, we give weight to the fact that
the juvenile court observed the witnesses and chose to believe Emma. See
In
re Interest of Monique H.,
12 Neb.App. 612, 681 N.W.2d 423 (2004). Thus, upon our de novo review of the
evidence in the record, it is clear that the State proved the elements of the
petition for Emma's *400
adjudication as a child within the meaning of ? 43-247(3)(a) by a preponderance
of the evidence.
Active
Efforts and Expert Testimony.
[5]
Geneo argues the juvenile court erred in finding that the State made active
efforts to provide remedial services and rehabilitative programs to prevent the
breakup of the Indian family and that those efforts were unsuccessful, and in
removing Emma from the family home and placing her in foster care without expert
testimony as required under ICWA.
Section
43-1505(4) provides:
Any
party seeking to effect a foster care placement of ... an Indian child under
state law shall satisfy the court that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the breakup of
the Indian family and that these efforts have proved unsuccessful.
See,
also, In
re Interest of Louis S.,
17 Neb.App. 867, 774 N.W.2d 416 (2009).
Additionally,
pursuant to ICWA, qualified expert testimony is required on the issue of whether
serious emotional harm or physical damage to the Indian child is likely to occur
if the child is not removed from the home before foster care placement may be
ordered. See ? 43-1505(5).
Section
43-1505(5) provides:
No
foster care placement may be ordered in such proceeding in the absence of a
determination, supported by clear and convincing evidence, including testimony
of qualified expert witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or physical
damage to the child.
See
In
re Interest of Phoebe S. & Rebekah S.,
11 Neb.App. 919, 664 N.W.2d 470 (2003).
Geneo
asserts in his brief that the State presented no evidence as to what, if any,
active efforts had been made to prevent Emma's placement in foster care and
further failed to present any expert testimony. In response, the State claims
that the evidence presented at a temporary custody hearing on June 11, 2009,
supports the juvenile court's finding that *401
active efforts had been made and the requisite expert testimony was
given.
A
supplemental transcript was filed by the State, containing a June 11, 2009,
order regarding a motion for temporary custody in which the juvenile court found
that active efforts had been made, including ?a pretreatment assessment,
visitation for [Venessa], counseling services, and a comprehensive family
assessment.? The order further indicates that the juvenile court determined that
Emma's therapist ?is a professional person having substantial education and
experience in the area of her specialty.? The juvenile court's September 30
order for adjudication specifically finds that active efforts had been
made.
However,
a close review indicates that, in the record before this court, there is no
evidence regarding active efforts, nor is there any evidence of expert
testimony. In fact, it is clear that the issue of active efforts was not further
addressed by the State at the adjudication hearing, even though the juvenile
court found that there had been sufficient active efforts. Even if this court
were to presume that the issues **339
had been previously addressed by virtue of the June 11, 2009, order, which we do
not, there is nothing in the record to substantiate that any efforts had been
taken from that time until the adjudication, and no further expert testimony was
given at the adjudication hearing.
We
find that there is no evidence of any active efforts presented by the State and
that there was no expert testimony given as required by ICWA to support
continued out-of-home placement of Emma. Therefore, the juvenile court erred in
determining that such efforts had been made and that such testimony was
presented by the State.
CONCLUSION
In
sum, we find that the proper burden of proof for the adjudication of an Indian
child is by a preponderance of the evidence. In this case, the State proved by a
preponderance of the evidence that Emma was a child within the meaning of ?
43-247(3)(a) and we affirm the juvenile court's order of adjudication. However,
we find that the record is devoid of any *402
evidence of active efforts and expert testimony as required by ICWA for
out-of-home placement of an Indian child. Therefore, we reverse the portion of
the judgment ordering Emma's continued out-of-home placement. We further remand
the cause with directions to return Emma to Geneo's home, unless a hearing is
held to remove her from the home in compliance with ICWA.
AFFIRMED
IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.