State v. John S. (In re Interest of Faith S.)

IN RE INTEREST OF FAITH S., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. JOHN S., APPELLANT.

No. A-19-512.

NEBRASKA COURT OF APPEALS

December 17, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the Separate Juvenile Court of Douglas County: DOUGLAS F. JOHNSON, Judge. Affirmed.

Joseph P. Naatz, of Kreikemeier Law, L.L.C., for appellant.

Nathan Barnhill, Deputy Douglas County Attorney, for appellee.

PIRTLE, RIEDMANN, and WELCH, Judges.

WELCH, Judge.

INTRODUCTION

John S. appeals the Douglas County Separate Juvenile Court order adjudicating his minor child, Faith S. On appeal, John contends that the juvenile court erred in (1) granting the State's motion to continue the adjudication hearing; (2) receiving, over objection, a certified copy of John's prior conviction for third offense driving under the influence; (3) failing to exclude the testimony of the child's natural mother; (4) allowing the child's grandmother to testify about the results of Faith's hair follicle test; and (5) finding by a preponderance of the evidence that Faith fell within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). Based upon the analysis set forth herein, we affirm.

STATEMENT OF FACTS

In October 2018, the State filed an adjudication petition alleging that Faith S., born in November 2017, was a juvenile who lacked proper parental care by reason of the fault or habits of John. Specifically, the petition alleged Faith lacked proper care due to John's (1) use of controlled substances and/or alcohol; (2) failure to provide proper parental care, support, and/or supervision; and (3) failure to provide safe, stable and/or appropriate housing. The adjudication hearing was scheduled to begin in December 2018, but it was continued to March 6, 2019.

At the March 6, 2019, adjudication hearing, the State requested a continuance because one of its subpoenaed witnesses was not present. The juvenile court granted the motion over John's objection. When the hearing resumed on March 26, John's counsel requested a continuance which was granted. The adjudication hearing resumed on April 23. At the adjudication hearing, the State called as witnesses: Morgan Praeuner, a child and family services specialist employed by the Department of Health and Human Services (DHHS); Linda Freeman (Linda), John's mother; and Martha C., John's former girlfriend and Faith's mother.

MORGAN PRAEUNER

Praeuner testified that she conducted three investigations regarding Faith in 2018. The first investigation occurred in May 2018 after Praeuner learned Faith had received an unexplained injury to the back of her head, the location of which suggested Faith had been dragged. Praeuner met John, Linda, and a detective at Children's Hospital and Medical Center. Praeuner testified that there were different accounts about how Faith sustained her injury; one story purported the injury was a rug burn that occurred at daycare. Praeuner also testified she learned Faith's basic needs were provided by Linda and Martha. Praeuner testified that although she had concerns that Linda provided for Faith's basic needs, she decided not to remove Faith from John's care at that point in time. Instead, Praeuner attempted to institute a safety plan, but John refused. Praeuner explained Faith remained in the care of her parents because doctors had been unable to determine the cause of Faith's injury, so Praeuner did not have any direct evidence supporting an "unsafe" finding.

Praeuner's second investigation occurred after an August 6, 2018, intake regarding concerns about Martha's ongoing use of controlled substances. Praeuner testified that during the second investigation, she attempted to contact John six times and he returned her phone calls three times. Praeuner testified that John did not agree to a safety plan, that his contact with her was minimal, that his behavior was erratic, and that he did not let her see Faith. Praeuner testified she did not offer any services to John during the second investigation because he did not agree to a safety plan.

Praeuner's third investigation concerned a September 27, 2018, intake which involved substance use and concerns about John driving with Faith on an all-terrain vehicle (ATV) while he was intoxicated. The third investigation resulted in an affidavit of removal without any interaction with John or Faith.

After the September investigation, Faith was placed into protective custody due to the ongoing concerns from the three investigations, including substance use by both parents, lack of cooperation, and domestic violence or an unstable relationship between John and Martha.

Praeuner testified that since her involvement in this case, she has observed signs of drug use in John, including erratic behavior where John was angry during one phone call but then completely calm the next, and he would agree to meet with Praeuner but then later cancel. Despite her observations, Praeuner testified her substance abuse concerns were not substantiated outside of interviews with persons associated with John and John never tested positive for any controlled substance nor was he arrested for possession of illegal narcotics or driving under the influence. Praeuner opined that Faith was at risk of harm if returned to John's home and formed that basis on collateral contacts, such as conversations she had with John and attempting to contact John and Martha.

LINDA'S TESTIMONY

Linda, John's mother, testified John had told her that he suspected Martha smoked methamphetamine while pregnant with Faith and this was an ongoing concern for John. Linda also expressed concern about Martha's drug use. Linda testified John would call to ask her to care for Faith when he suspected Martha was doing drugs. Linda further testified that since Faith's birth, Martha would leave John approximately every 3 weeks, with the car packed and taking Faith with her. Linda testified that this created instability for Faith and that both John and Martha were responsible for the instabilty. She also related an instance when John was away from home at a campground and he contacted Linda to request that she check on Martha; when she did so, she found Faith locked in a car.

Linda testified that John had previously used marijuana and had an interlock system for a previous driving under the influence offense. Linda testified John drinks too much, then passes out or gets injured. Linda testified she had concerns about John's drinking to excess which might impair his ability to care for Faith, but she had not seen John drink in Faith's presence. Further, on one occasion she observed marijuana paraphernalia in John's home when she picked up Faith to care for her. Additionally, Linda testified a methamphetamine pipe was found in John's work tool bag, which angered John because it appeared someone had planted the pipe in his bag.

In October 2018, Linda became concerned that Faith was around someone who used methamphetamine because Faith slept all the time. This concern led Linda to cut Faith's hair and submit a hair follicle test to an online testing company. Linda testified she received results showing that Faith tested positive for methamphetamine and that "she was around a heavy dose of meth[amphetamine]." John objected to this line of testimony on foundational grounds.

Linda testified that John would be a good father for Faith, but he would need Linda for support and babysitting because he works full time. Linda testified that she provided for Faith's basic needs including providing clothes, formula, diapers, and a daycare deposit, although she admitted that John did purchase clothes and food for Faith. Linda expressed that, in the past if she did something wrong, John and Martha would prevent her from seeing Faith, so she expressed fear that she may never see Faith again if she revealed anything negative about John and Martha.

STATE'S REQUEST TO CONTINUE HEARING

At the close of Linda's testimony, the State requested to continue the hearing because a subpoenaed witness had failed to appear. The State also noted two material witnesses were notpresent, even though one witness was present for a prior hearing and knew about the first continuance. John's counsel objected, stating a continuance was previously granted to allow Martha to hire a new attorney, and this second continuance was premised on a witness who chose not to appear and honor that subpoena, so good cause for the continuance has not been shown. The juvenile court mentioned the State had perfected the subpoena and did not know why the witness was not present. The juvenile court decided to allow the State the opportunity to cure the issue.

HEARING RESUMED ON MARCH 26, 2019

The hearing resumed on March 26, 2019, at which time the juvenile court received, over John's relevancy objection, a certified copy of John's 2008 conviction for third offense driving under the influence. The State then called Martha to testify. John's counsel renewed his objection to the continuance arguing the prior continuance was granted on the basis of calling a previously subpoenaed witness and not Martha. John's counsel also requested the exclusion of Martha's testimony due to the State's failure to list Martha as a witness in violation of John's rights to due process. John also argued that the trial court had ordered that the parties had 30 days to exchange witness lists which order the State had failed to follow.

The State responded that Martha had been listed as a party from the beginning of the case and that the State provided proper notice. The State also informed the juvenile court that the witnesses for whom the state had sought the continuance had informed the State that they would not tell the truth if called to testify. John's counsel also moved for a continuance to be able to depose...