In Re Interest Of Emma J.

18 Neb.App. 389

782 N.W.2d 330

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.

Court of Appeals of Nebraska.

May 11, 2010.

Syllabus by the Court

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 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 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 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 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 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.

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 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...