A-15-0946, In re Interest of Moctavin D.
Douglas County Separate Juvenile Court, Judge Elizabeth Crnkovich
Attorney for Appellant: Donald W. Kleine and Anthony Hernandez (Douglas County Attorney's Office)
Attorney for Appellee: Nicholas E. Wurth (The Law Offices of Nicholas E. Wurth, PC)
Civil Action: Juvenile adjudication and termination
Action Taken by Trial Court: The trial court adjudicated the four minor children, but sustained the appellee's motion to dismiss allegations that her parental rights be terminated.
Assignments of Error on Appeal: The State assigns, rephrased and consolidated, that the trial court erred in ruling that certain testimony was excluded as hearsay and by sustaining the appellee's motion to dismiss the motion to terminate her parental rights. The appellee has cross-appealed, asserting that the juvenile court erred by allowing the State to reopen its case-in-chief and that, on that day, the evidence was insufficient to support the adjudication of the minor children.
Extended Case Summary (for Educational Purposes):
A-15-0946, In re Interest of Moctavin D.
Douglas County Separate Juvenile Court, Judge Elizabeth Crnkovich
Attorney for Appellant: Donald W. Kleine and Anthony Hernandez (Douglas County Attorney's Office)
Attorney for Appellee: Nicholas E. Wurth (The Law Offices of Nicholas E. Wurth, PC)
Civil Action: Juvenile adjudication pursuant to Neb. Rev. Stat. ' 43-247(3)(a) (Reissue 2008) and termination pursuant to Neb. Rev. Stat. ' 43-292(2) (Reissue 2008).
Action Taken by Trial Court: The trial court adjudicated the four minor children, but sustained the appellee's motion to dismiss allegations that her parental rights be terminated.
Assignments of Error on Appeal: The State assigns, rephrased and consolidated, that the trial court erred in ruling that certain testimony was excluded as hearsay and by sustaining the appellee's motion to dismiss the motion to terminate her parental rights. The appellee has cross-appealed, asserting that the juvenile court erred by allowing the State to reopen its case-in-chief and that, on that day, the evidence was insufficient to support the adjudication of the minor children.
Facts: Mary S. (appellee) is the biological mother of four minor children: Moctavin, Kim, Nevaeh, and Devereon. In January 2015, all four children were removed from Mary's custody and placed in the temporary custody of the Nebraska Department of Health and Human Services upon allegations that the children lacked proper parental care. Specifically, the allegations indicated that the oldest sibling had subjected the younger siblings to inappropriate sexual contact. This family had previously been involved in a juvenile case in Iowa and also one in Nebraska in 2013-2014.
Arguments on Appeal: The State argues that the juvenile court erred by excluding hearsay testimony given by Moctavin's therapist about disclosures he made and also by excluding disclosures made by Nevaeh to her second grade teacher, also as hearsay. The State argues that each of the disclosures should have been properly admitted as a hearsay exception (medical diagnosis, excited utterance, and the residual hearsay exception).
The State also argues that the juvenile court erred by sustaining Mary's motion to dismiss the motion to terminate her parental rights to all four children. The State contends that it provided clear and convincing evidence that the Mary's parental rights be terminated pursuant to ' 43-292(2) which provides for termination when the 'parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection.' Further, the State asserts that termination of Mary's parental rights is in the best interests of the children.
On cross-appeal, Mary argues that the juvenile court erred by allowing the State to reopen its case-in-chief after the matter had been submitted to the court and that, at the time at which the matter was originally submitted, the State failed to prove by a preponderance of the evidence that the children were within the meaning of ' 43-274(3)(a).