In re Interest of Shayla H., No. A-09-1142 (Neb. App. 5/18/2010)

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IN RE INTEREST OF SHAYLA H. ET AL., CHILDREN UNDER 18 YEARS OF AGE STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLANT, v. DAVID H., APPELLANT AND CROSS-APPELLEE, AND ROSEBUD SIOUX TRIBE, INTERVENOR-APPELLEE.

No. A-09-1142.

Court of Appeals of Nebraska.

Filed May 18, 2010.

Appeal from the Separate Juvenile Court of Lancaster County: LINDA S. PORTER, Judge. Affirmed.

Patrick T. Carraher, of Legal Aid of Nebraska, for appellant.

Gary Lacey, Lancaster County Attorney, and Jeremy Lavene for appellee.

INBODY, Chief Judge, and MOORE and CASSEL, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE, Judge.

INTRODUCTION

David H. appeals from an order of the separate juvenile court for Lancaster county, adjudicating his minor children as juveniles under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). This is the second appearance of the case before this court. We reversed a previous adjudication order and remanded for further proceedings because the initial pleadings did not contain the requisite allegations under Nebraska's Indian Child Welfare Act (ICWA). See In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009). Upon remand, the State filed an amended petition containing the requisite ICWA allegations, and the children were again adjudicated. In the present appeal, David assigns error to certain evidentiary rulings made by the court and to the court's decision to take jurisdiction of the children under § 43-247(3)(a). The State has cross-appealed, assigning error to the standard of proof used by the juvenile court in assuming jurisdiction. For the reasons set forth herein, we affirm.

BACKGROUND

David and Tanya H. (Tanya) are the parents of three minor children, Shayla H., born in August 2001; Shania H., born in August 2003; and Tanya H., born in September 2004. Because Tanya, the mother, is not involved in the present appeal, we have limited our recitation of the facts to only those applicable to David. Through David, the children are eligible for enrollment with the Rosebud Sioux Tribe (the Tribe).

The State filed a petition in the juvenile court on February 15, 2008, alleging that the children were within the meaning of § 43-247(3)(a) in that they lacked proper parental care by reason of the faults or habits of David. The petition included the following allegations: (1) that since November 2007 David had failed to provide one or more of the children with proper medical care, (2) that on one or more occasion since January 2007 David had been involved in physical or verbal domestic confrontations with Tanya occurring in the presence of or vicinity of one or more of the children, and (3) that on one or more occasion since November 2007 David had been under the influence of methamphetamine while being the primary caretaker of one or more of the children. The State alleged that because of these allegations, the children were at risk of physical or emotional harm. The petition did not contain any allegations under or references to the Nebraska ICWA, Neb. Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2008).

An adjudication hearing was held on May 29 and July 2, 2008, at which time David entered his voluntary appearance and waived service of summons of the petition on the record. The court heard testimony from Tanya's mother, two police officers, employees of the Nebraska Department of Health and Human Services (the Department), and Tanya. During the course of the July 2 hearing, David's attorney argued that the case should be dismissed, in part, because the petition did not include any ICWA allegations. The record shows that while the Tribe was notified of the adjudication hearing, it did not appear.

The juvenile court entered an order on August 15, 2008, adjudicating the children as juveniles under § 43-247(3)(a). The court denied David's request to dismiss the petition on the ground that it failed to include allegations pleading the applicability of the ICWA. The court found that the children were Indian children and eligible for membership in the Tribe. The court also found that the notice requirements of the ICWA had been met. The court found that the State failed to prove the allegations of count I of the petition (medical neglect) as they related to David and dismissed that count for failure of proof. The court determined that the State proved the remaining counts of the petition (domestic violence and drug use) by clear and convincing evidence as they related to David.

David appealed from the August 2008 adjudication order, and this court determined that the juvenile court erred in failing to sustain David's motion to dismiss the petition due to the lack of ICWA allegations. See In re Interest of Shayla H. et al., 17 Neb. App. 436, 764 N.W.2d 119 (2009). We determined that the defects in the State's petition appeared capable of being cured by amendment and therefore reversed the adjudication order and remanded the cause for further proceedings.

On February 26, 2009, the juvenile court granted a request from the Tribe to intervene in the case.

On June 26, 2009, the State filed the operative amended petition, which contained the same three counts as to David (medical neglect, domestic violence, and drug use) as were found in the initial petition. The petition also included the requisite ICWA allegations, specifically stating that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that because these efforts had proved unsuccessful, continued custody of the children by the parent or Indian custodian was likely to result in serious emotional or physical damage to the children.

An adjudication hearing was held on September 25, 2009. For the sake of brevity, we have set forth the details of that hearing as they relate to the issues in this present appeal in the analysis section below. Although notice of the hearing was given to the Tribe, no representative of the Tribe appeared.

On November 29, 2009, the juvenile court entered an order adjudicating the children as juveniles under § 43-247(3)(a). The court again found that the State failed to prove the allegations of count I of the petition (medical neglect) as they related to David and dismissed that count for failure of proof. The court again determined that the State proved the remaining counts of the petition (domestic violence and drug use) by clear and convincing evidence as they related to David. David subsequently perfected the present appeal to this court.

ASSIGNMENTS OF ERROR

David asserts that the juvenile court erred in (1) taking judicial notice of "the entire trial record from the previous trial in this matter," (2) refusing to take judicial notice of one of its own records and refusing to receive into evidence a certified copy of a district court order, and (3) taking jurisdiction of the children under § 43-247(3)(a) when there was insufficient evidence to support counts II and III of the operative petition.

On cross-appeal, the State asserts that the juvenile court erred in using "clear and convincing" as the standard of proof in adjudicating the children.

STANDARD OF REVIEW

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 Chance J., 279 Neb. 81, 776 N.W.2d 519 (2009). When the evidence is in conflict, an appellate court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other. Id.

ANALYSIS

Judicial Notice of Record From Previous Adjudication.

David asserts that the juvenile court erred in taking judicial notice of "the entire trial record from the previous trial in this matter."

At the September 25, 2009, adjudication hearing, the attorney for the State initially asked the juvenile court to take judicial notice of the prior proceedings in this case. David's attorney objected on the basis of hearsay and argued that it was not proper for the State to prove its case in chief using the testimony from a prior proceeding. Following a discussion between the court and counsel to clarify the record sought to be received by judicial notice, the court stated that it would take judicial notice of the record created at the formal adjudication hearings held on May 29 and July 2, 2008, on the original petition. The court reasoned that all parties were present and participated fully in the prior adjudication, the allegations in the prior and current petitions were the same, the rules of evidence were applied at the prior adjudication hearings, and there was no undue prejudice resulting from the court taking judicial notice. The State rested its case after the court took judicial notice of the prior adjudication proceedings. David then presented testimony from Tanya and from a drug tester. In questioning Tanya, David's attorney focused on evidence relating to the credibility of her testimony at the prior adjudication hearing. The drug tester testified that she had been testing David for drug use since February 2009 and that the test results had all been negative.

Although David does not assign error to the overruling of his hearsay objection to receipt of the record from the prior adjudication hearing, we note that, had there been a showing of witness unavailability, the material judicially noticed would fit under the hearsay exception found in Neb. Rev. Stat. § 27-804(2)(a) (Reissue 2008). No such showing of unavailability was made, and, in fact, some of the witnesses from the first hearing were present at the second hearing. The State did not ask the juvenile court to receive the evidence under such an exception, but, rather, relied on the judicial notice statute in seeking to bring the evidence before the court.

As a subject for judicial notice, existence of court records and certain judicial action reflected in a court's...