State v. Griel B. (In re Interest of Noah B.)

295 Neb. 764

891 N.W.2d 109

IN RE INTEREST OF NOAH B. et al., children under 18 years of age.

State of Nebraska, appellant,

v.Griel B. and Michaela B., appellees.

No. S-16-031.

Supreme Court of Nebraska.

Filed February 3, 2017

Donald W. Kleine, Douglas County Attorney, Patrick McGee, Anthony Hernandez, and Megan Furey, Senior Certified Law Student, for appellant.

Thomas C. Riley, Douglas County Public Defender, and Matthias J. Kraemer for appellee Griel B.

Liam K. Meehan, of Schirber & Wagner, L.L.P., Papillion, for appellee Michaela B.

Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Stacy, J.

The primary question presented in this appeal is how the doctrines of claim preclusion and issue preclusion apply in an abuse and neglect proceeding when the State seeks to assert supplemental grounds for adjudication under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013). On this record, we conclude the juvenile court erred when it dismissed the State's supplemental petition, finding it was barred by claim and issue preclusion. We vacate the order of dismissal and remand the matter for further proceedings.

BACKGROUND

ORIGINAL PETITION ALLEGING PHYSICAL ABUSE

Griel B. and Michaela B. are the biological parents of Noah B., Cheyenne B., and Ciara B. Noah was born in 1998, Cheyenne was born in 1999, and Ciara was born in 2001.

On March 17, 2014, the State filed a petition alleging the children came within the meaning of § 43-247(3)(a). in that Griel subjected them to inappropriate physical contact and Michaela failed to protect them from inappropriate physical contact. On the same date, the State filed an ex parte motion for temporary custody of the children. The motion was granted.

On May 30, 2014, the Nebraska Department of Health and Human Services filed an ex parte motion to suspend contact between the parents and children. An affidavit attached to the motion alleged that both Cheyenne and Ciara had made sexual abuse allegations against Griel during forensic interviews. At the hearing on the motion, a caseworker testified that both Cheyenne and Ciara had reported being sexually abused by Griel. In an order entered July 2, the court granted the motion and suspended Griel's contact with all the children.

The matter proceeded to adjudication on the original petition alleging physical abuse; the State did not seek leave to amend the petition to add sexual abuse as a factual basis for adjudication under § 43-247(3)(a). The adjudication hearing took place over a 3-day period. Noah and Cheyenne both testified, but Ciara did not. The record shows Ciara is a child with cognitive disabilities resulting from a stroke or head injury.

Noah testified that he and his sisters had been physically and emotionally abused by Griel. Cheyenne also testified that she and her siblings had been physically abused by Griel, and in addition, she testified that Griel had sexually abused her on multiple occasions before she was removed from the family home. The first day of trial recessed with Cheyenne on the witness stand.

When cross-examination resumed 2 weeks later, Cheyenne recanted her earlier testimony. On redirect, Cheyenne admitted she had talked with her parents the previous evening, and further admitted she wanted to go back home with them. Cheyenne was asked, "Do you think that coming in today and saying these allegations didn't happen will get you to go home?" She replied, "I don't know." The State attempted to show that she had changed her testimony after having unsupervised contact with her parents in violation of a court order. Specifically, the State questioned Michaela regarding contact with Cheyenne the night before trial, but Michaela objected to the questioning on Fifth Amendment grounds. The court sustained the objection, reasoning that "she has a qualified right to remain silent as to anything that might tend to show she committed a crime [and w]itness tampering is a crime."

After the State rested its case, neither Griel nor Michaela presented evidence. The State focused its closing argument on the evidence adduced regarding allegations of physical abuse, and argued it had proved such allegations. The juvenile court found all three children were within the meaning of § 43-247(3)(a) as to both parents due to physical abuse. In its written order, the court made no specific findings regarding sexual abuse, but found Cheyenne was "not a credible witness" and stated it gave "no credence" to her testimony. All three children were placed in the custody of the Department of Health and Human Services and ordered to be placed outside the home. No appeal was taken from this adjudication.

The dispositional order articulated a permanency objective of reunification with a concurrent plan of guardianship. The court also adopted a case plan which included supervised visitation, family therapy, and a requirement that Griel and Michaela complete a parenting assessment. In the months after the adjudication, Cheyenne and Ciara continued to tell providers and others that Griel had sexually abused them before they were removed from the family home.

SUPPLEMENTAL PETITION ALLEGING SEXUAL ABUSE

On November 4, 2015, the State filed a supplemental petition alleging all three children were within the meaning of § 43-247(3)(a), because Griel had subjected one or more of them to inappropriate sexual contact and Michaela had failed to protect them from such contact. The supplemental petition did not allege specific dates or timeframes regarding the alleged sexual abuse.

The State also filed a notice of intent to present hearsay testimony.¹ This notice identified some of the evidence the State intended to offer in support of its supplemental petition. That evidence included recent statements made by Ciara to several persons involved in her care reporting that Griel touched her inappropriately before the children were removed from the home. The evidence also included recent statements made by Cheyenne to her foster parent and her psychiatrist reporting that Griel sexually abused her and Ciara before the girls were removed from the family home. Summarized, the State's notice showed it intended to offer hearsay statements which were made after the original adjudication but which related to incidents of sexual abuse that occurred before the adjudication and before the children were removed from the home.

MOTION TO DISMISS

Griel moved to dismiss the supplemental petition pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) (rule 12(b)(6)), alleging it failed to state a claim upon which relief could be granted, because the allegations raised therein were, or could have been, litigated in the prior adjudication and were barred by the doctrines of claim preclusion and issue preclusion. Alternatively, Griel moved to strike the supplemental petition. Michaela filed similar motions.

At the hearing on the parents' motions, all parties referred extensively to the record and the prior proceedings, but offered no evidence. Griel and Michaela argued the supplemental petition was barred by claim and issue preclusion, because the allegations of sexual abuse were known to all the parties before the initial adjudication hearing and some evidence of sexual abuse was adduced from Cheyenne during the first adjudication hearing.

The State opposed the motions to dismiss on several grounds. First, it argued that even under a traditional application of claim preclusion, the issue of sexual abuse was not alleged or tried on the merits in the first adjudication, particularly as regards Ciara, who did not testify. The State acknowledged testimony of sexual abuse had been elicited from Cheyenne during the first adjudication hearing, but argued that the court made no findings regarding sexual abuse and there were no dispositional orders entered addressing sexual abuse.

The State's primary argument was that the doctrines of claim and issue preclusion apply differently "in matters concerning the best interest of children." The State relied on the cases of In re Interest of V.B. and Z.B .² and In re Interest of Marcus W. et al.³ for the proposition that claim and issue preclusion cannot settle the question of a child's welfare for all time to come. The State argued that when a supplemental petition is filed, claim preclusion does not limit the proof to only facts or evidence which was not considered in, or which came into being after, the first adjudication. The State argued that after the first adjudication hearing, additional evidence of prior sexual abuse was discovered and prompted the State to conclude it was in the children's best interests to seek additional grounds for adjudication. The State advised the court that in addition to the recent disclosures of sexual abuse contained in the State's notice of intent to present hearsay statements, there was evidence that after the initial adjudication, Griel asked Cheyenne during a visit whether she "would still have a desire" to have sexual contact with him and Ciara reported being afraid that once visits were no longer supervised, Griel would subject her to more sexual contact. The State argued that "all of these disclosures, in combination, present sufficient evidence to now move forward with an adjudication as to inappropriate sexual contact." The State concluded by arguing, "There [is] a need for new dispositional orders, as witnesses would testify that the children have been acting out due to sexual abuse and it would be in the best interest of the children not to bar this proceeding."

The trial court took judicial notice of several prior pleadings and orders, and also indicated it "kind of remember[ed]" some of the testimony from the first adjudication and Cheyenne's recanting of her testimony. Briefing was requested, and the matter was taken under advisement.

In an order entered December 10, 2015, the court granted the parents' motions and dismissed the State's supplemental petition in its entirety, finding it was barred by the doctrines of...