In Re Interest Gavin S. and Jordan S.

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In Re Interest Gavin S. and Jordan S.

Caselaw No.
No. A-14-1124
Filed on
Tuesday, November 24, 2015


SUMMARY: Mother, Lacy S. appeals, and father, Daniel S. cross-appeal from an order by the Juvenile Court of Lancaster County adjudicating their two children, Gavin and Jordan, to be within the meaning of Neb. Rev. Stat. § 43-247(a) and terminating their rights to the children. Both parents assign error to the admission of a report from a doctor who was unable to testify and the Court finding sufficient evidence to adjudicate the children to be within 247(a) and to terminate their rights. The Court of Appeals affirms the decision of the Juvenile Court.

On January 3, 2012, when Gavin was two and Jordan was six months, a child who attended an in-home day care at Lacy and Daniel’s home, one-year-old Zachary T., died. Zachary arrived to the daycare awake and fine. Lacy left to take Gavin and Jordan to the doctor about an hour after Zachary arrived and returned a couple of hours later. When she checked on Zachary at 3:30pm, he was in the baby swing, where he had been in since she left the house, and he was not breathing. She called 911 and tried to perform CPR, but Zachary was pronounced dead at the hospital. Upon autopsy, doctors discovered Zachary had a skull fracture that was a few weeks old and significant additional trauma to his brain that had occurred more recently.

On January 5, 2012, the Court granted a motion for emergency temporary custody of Gavin and Jordan to DHHS. On January 6, 2012, the State filed a petition that Gavin and Jordan were within the meaning of Neb. Rev. Stat. § 43-247(a). The State filed an amended petition alleging that Lacy and Daniel put their children in a dangerous situation and a motion for the termination of both Lacy’s and Daniel’s parental rights on March 29, 2012. The motion for TPR alleged that termination was appropriate pursuant to Neb. Rev. Stat. § 43-292(9) because Lacy and Daniel subjected their children to aggravated circumstances, TPR was in the children’s best interests, and reasonable efforts were not required. This pleading was amended again on January 13, 2014 and added that TPR was appropriate due to § 43-292(7) in that Jordan and Gavin had been in an out-of-home placement for 15 of the most recent 22 months.

The TPR hearing went on for several months. The Court of Appeals reviewed the entire record, including a 2,500 page bill of exceptions and over 80 exhibits. The State and GAL offered testimony from three medical professionals who were all of the opinion that Zachary’s death was caused by recent traumatic brain injuries, could not have occurred during a fall from a piece of furniture, and was not caused by the pre-existing skull fracture. The Court credited the opinion of these three doctors.

Lacy offered testimony from one medical professional who stated that Zachary did not sustain any new trauma on January 3, 2012. The Court did not credit this doctor’s testimony.

The Court adjudicated Gavin and Jordan as neglected children, terminated Lacy’s and Daniel’s rights, and found that termination was in the children’s best interests.

Lacy and Daniel assert that the Court erred in admitting a report from Dr. Brumback when he was unavailable to testify, in finding that Gavin and Jordan were within the meaning of § 43-247(3)(a), and finding sufficient evidence to terminate their rights.

Juvenile cases are reviewed de novo on the record, but may give weight to the lower court’s observation of witnesses, if the evidence is in conflict. In re Interest of Jagger L., 270 Neb. 828 (2006).

First, the Court addressed the admission of the report from Dr. Brumback. Dr. Brumback worked with Dr. Bowen, who actually performed the autopsy, to determine what tests to perform on Zachary’s brain and helped him analyze the results. He then wrote a report about his observations and conclusions, but died before the TPR hearing. The Juvenile Court did not rely on this report to make its conclusion, and the Court of Appeals also did not rely on the report in its analysis of the evidence, as improper evidence is not considered by an appellate court, making the report a nonissue. In re Interest of J.S., A.C., and C.S., 227 Neb. 251 (1987).

Second, the Court addresses that the Juvenile Court adjudicated the children to be within the meaning of § 43-247(3)(a). The Court of Appeals found, however, that a finding pursuant to that section is not necessary for a termination of parental rights, and so would not need to address this portion on the merits if it upholds the termination. In re Interest of Joshua M. et al., 256 Neb 596 (1999). They did address the fact that § 43-292(9) did not exist at the time of the decision in Joshua M., but reasoned by looking at Legislative history, if the Legislature intends prior court action to be necessary, it will be enumerated. Therefore, the Court of Appeals finds that no prior adjudication is necessary for a termination.

The Court moves on to the basis for the termination of parental rights. The Court of Appeals affirms the Juvenile Court’s decision to terminate Lacy’s and Daniel’s parental rights. To terminate parental rights, the Court must find that there are statutory grounds to do so under § 43-292 and that termination is in the child’s best interests. In re Interest of Jagger L., 270 Neb. 828 (2006). The Juvenile Court found that there was evidence enough for a termination under §§ 43-292(7) and (9). Because only one ground is required, the Court of Appeals focuses on § 43-292(9), which states that a parent’s rights may be terminated when “[t]he parent of the juvenile has subjected the juvenile or another minor child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, or sexual abuse.” The Court of Appeals finds that there is sufficient evidence to prove that Lacy and Daniel subjected Zachary to “aggravated circumstances” in that Zachary was injured so severely in their home that he died. It was also proven in the Juvenile Court that weeks prior to his death, Zachary fell down the stairs at daycare and obtained a large bump. His parents asked about the bump, but Lacy did not disclose the fall, which led to the skull fracture that made his brain more fragile to injury the day of his death. The Court of Appeals gives deference to the Juvenile Court’s ability to have observed and credited certain witnesses and based on that and all the facts find that there was clear and convincing evidence to determine that Lacy and Daniel subjected Zachary to aggravated circumstances.

The Court then moves on to the best interests prong of termination. Because Lacy and Daniel were responsible for the abuse and death of another child, the Juvenile Court found Lacy and Daniel “unfit to be entrusted with the care of their children…” It also found that their silence in producing an explanation for Zachary’s death, even when faced with the termination of their parental rights, means that they are unwilling to accept responsibility for what they have done and there is no plan that DHHS could develop to rehabilitate them.

The Court of Appeals therefore upholds the findings of the Juvenile Court in terminating Lacy and Daniel’s parental rights.