SUMMARY: Adjudication under 43-247(3)(a) was proper where the evidence established that there was a physical altercation between the parents in the presence of the older child which established a definite risk of future harm.
Christian, DOB 5/11, and Brysen, DOB 2/13, are the children of Jesse and Savannah. On January 16, 2013, Jesse and Savannah were involved in a physical altercation in Jesse’s car after Savannah discovered a wallet belonging to Jesse’s girlfriend. A petition was filed on February 20, 2013, alleging Christian to be within the meaning of N.R.S. 43-247(3)(a), and was amended on April 8, 2013, to add Brysen. An adjudication hearing was held on April 8, 2013, where Savannah entered a plea of no contest. A caseworker testified that DHHS had concerns about Jesse’s possible drug issues, that Jesse refused to allow a walk-through of his home to get visits approved, and requested DHHS get legal custody of the children given domestic violence concerns. After the hearing, the court granted temporary legal custody of the children to DHHS. On April 12, 2013, a second amended petition was filed to include an additional allegation about Jesse’s use of marijuana. The adjudication hearing as to Jesse was heard on April 23, 2013. Savannah testified that she hit Jesse on the shoulder in the car and that he called her a “dumb bitch” and punched her in the jaw as she was removing the car seat. She also testified that Christian starting crying during the incident and that he had witnessed more than 20 physical altercations between her and Jesse in the past. Savannah also testified to marijuana use by her and Jesse. Jesse testified that Savannah punched him in the face and squirted hair gel in the back seat but denied hitting her. Jesse’s friend testified similarly. Jesse also testified this was the first physical altercation between him and Savannah and that he has smoked marijuana but never in the presence of the children. After the hearing, the court found the allegations to be true and found that the children were within the meaning of 43-247(3)(a). Jesse appealed.
The Nebraska Court of Appeals affirmed the court’s order. It first addressed the adjudication as to Savannah and found that the police report established some kind of physical altercation between the parents in the presence of Christian and that this established a definite risk of future harm. It rejected Jesse’s argument that awarding legal custody to DHHS was improper, finding that once the children are adjudicated the court has broad discretion on the terms of disposition, one of which can be custody to the Department, and that the evidence was sufficient to support legal custody. It also found the court’s orders on establishing visits with Jesse was proper. Finally, the Court of Appeals addressed adjudication as to Jesse and again noted that the evidence was sufficient to establish definite risk of future harm, even though no actual harm had been done to Christian or later-born Brysen.