SUMMARY: Walter P., Jr. (Walter II) appeals that order of the separate juvenile court for Douglas County, in which the court found the minor children were within the meaning of § 43-247(3)(a), by reason of the faults or habits of their father. The Court of Appeals affirms the order of the county court.
Walter II and Tiera T. are the parents of Walter III (born 11/2009) and Malaija P. (born 11/2014), Tiera is the mother of Mariah T. (born 12/2006), and Walter II is the father of Ashantae, whom lived with Walter II and Tiera for a period but now lives out-of-state with her mother.
In June 2015, DHHS received an intake alleging that Ashantae disclosed sexual abuse by Walter II and included that Mariah was also a victim of the same. On June 26, 2015, a forensic interview was conducted and included hair follicle testing. These tests revealed positive tests for PCP and marijuana by Malaija, a positive test for marijuana by Walter III, and inconclusive tests by Mariah.
On September 16, 2015, the State filed a petition alleging Walter III and Malaija were within the meaning of § 43-247(3)(a) due to the faults of Walter II: he subjected them to inappropriate physical sexual contact; he subjected them to inappropriate physical discipline and/or contact; his use of alcohol and/or controlled substances places the juveniles at risk for harm; he failed to provide the juveniles with safe, stable, and/or appropriate housing; he failed to provide proper parental care, support, and/or supervision of the juveniles; and, due to the allegations, the juveniles were at risk for harm. The State also filed an ex parte motion for immediate custody on the same day and placed in the custody of DHHS.
At an October 22, 2015 hearing, it was determined that Mariah would only be required to give testimony once, either via deposition or in chambers with the judge. Further, the court heard motions to exclude portions of testimony from an initial assessment worker for DHHS. Walter II argued that statements were elicited from him and the children by the worker without an attorney present. The worker responded that she is not a law enforcement officer and that both parents gave the statements voluntarily. Counsel from either parent did not contact the worker regarding the interviews. Consequently, the court overruled the motions in limine filed by Walter II and Tiera.
An adjudication hearing was held on November 16 and 18, 2015. There, testimony was initially heard from a school counselor familiar with Mariah, Ashantae, and Walter III. Mariah had revealed to the counselor that she and her siblings had hygiene issues at their grandmother’s house, due to the power being turned off. It was also disclosed that the children did not have proper shoes and were not eating well. When the counselor later confronted Mariah about a report that she brought matches to school, Mariah told her that they played with matches at home and set fires. When the counselor told her she would be calling home about this information, Mariah had a “panic attack” and begged the counselor not to do so for fear of being disciplined with a belt. Ashantae gave a similar account to the counselor. Consequently, the counselor called protective services.
A mental health therapist testified that a psychologist had diagnosed Mariah and Walter III with PTSD. Mariah and Walter III told the therapist that their mother and Walter II had physically disciplined them.
A certified copy of Mariah’s deposition was entered into evidence which described both a sexual assault and beatings at the hands of Walter II, which Walter II prohibited her to talk about with anyone else.
The DHHS intake interview worker corroborated the physical discipline employed by Walter II during her interview with him, however, he denied any knowledge or participation in sexual abuse with Ashantae or Mariah. Walter II also offered no explanation as to the positive marijuana and PCP screens by the children, telling the DHHS worker that he does not use PCP and only smokes marijuana after they have gone to bed in another part of the house.
On December 7, 2015, the Separate Juvenile Court for Douglas County found the children within the meaning of § 43-247(3)(a). Walter filed this appeal asserting that the juvenile court: (1) did not afford him proper discovery because of limited access to the victim and was forced to do so in the presence of the judge, and (2) wrongly found the children to be within the meaning of § 43-247(3)(a).
In its review, the Court of Appeals notes that control of discovery is a matter of judicial discretion and that the party asserting the error bears the burden of showing that there was an abuse of discretion. In re Interest of R.R., 239 Neb. 250 (1991). It was determined prior to the hearing that it was in Mariah’s best interests that any testimony given be done so in as comfortable and non-threatening an environment as possible.
This was in keeping with In re Interest of Brian B. where it was held that a child not be faced with the risk of harm because of testifying in front of a parent and “[w]hen the requisite showing has been made by the State the juvenile court may exercise its discretion in determining whether to permit the child to testify in chambers.” 268 Neb. 870 (2004). Here, the court considered the potential trauma Mariah would suffer if forced to testify twice and allowed Walter II to listen to her deposition by telephone with his counsel.
Walter II asserts that his effort was limited because both parties were only allowed one opportunity to question Mariah during her testimony. However, the Court of Appeals has determined that this was an opportunity for meaningful examination and does not demonstrate that Walter II was prejudiced by the lower court’s limitations.
Walter II also claims that the lower court “erred by receiving into evidence the deposition of Mariah, who is not Appellant’s child, in lieu of live testimony over the objection of Appellant’s counsel.” The Court states that this error was not properly raised in that an “alleged error must be both specifically assigned and specifically argued.” See In re Interest of Nicole M., 287 Neb. 685 (2014). Moreover, the Court concludes that this issue was not properly preserved for appeal because Walter II objected to the admission of the deposition at the hearing, but not on the hearsay grounds which he now argues. See State v. Cullen, 292 Neb. 30 (2015).
With regard to Walter II’s claim that the lower court erred in finding the children within the meaning of § 43-247(3)(a), the Court turns to an analysis of the counts alleged in the petition and the evidence presented at the hearing. As for the count alleging inappropriate sexual contact, the Court notes several sources to sustain such an allegation: Mariah’s deposition in chambers detailed sexual contact with Walter II, specifically hand to genital and mouth to genital contact; testimony from the DHHS worker about her interview with Mariah detailing sexual contact with Walter II; drawings made by Mariah depicting her and Walter II with the words “suke my dick” included; and testimony from Mariah’s therapist detailing her resistance to discussing her interactions with Walter II, coping strategies employed by Mariah when uncomfortable topics were discussed, and a PTSD diagnosis.
Walter argues that Mariah’s testimony was inconsistent at times and not capable of meeting the requisite standard of proof. However, the Court gives weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other and concludes that the evidence showed that Walter II had subjected Mariah to sexual contact. See In re Interest of Gavin S., 23 Neb. App. 401 (2015).
An additional count alleged that Walter II subjected the children to inappropriate physical discipline and/or contact. At the hearing, the lower court heard testimony from Walter III and Mariah’s school counselor detailing the incident where Mariah had a “panic attack” when the need to call Walter II about abuse concerns was brought up. Mariah told the counselor she had sometimes been beaten with a belt on by Walter II, resulting in bleeding on occasion, and that she did not feel safe at home. Mariah’s in chambers deposition confirmed this, as did the DHHS forensic interview and review of CPS records.
The Court turns again to the In re Interest of Gavin S. standard, allowing the appellate court to give weight to the credibility findings of the lower court and does so. That court found that Walter II had subjected the children to inappropriate physical discipline, based on the evidence presented at the hearing. The Court of Appeals find no abuse of discretion by that court in coming to that conclusion.
Lastly, the Court turns to counts alleging Walter II failed to provide Walter III and Malaija with proper parental care, support, and/or supervision which placed the children at risk for harm. For the finding to stand, the lower court needed to find that the juvenile’s situation presents a definite risk of future harm, but need no “wait until disaster has befallen a minor child before . . . acquir[ing] jurisdiction.” In re Interest of Chloe P., 21 Neb. App. 456 (2013). Here, the lower court found that Walter II subjected the children to inappropriate sexual contact and physical discipline. Moreover, Walter III’s therapist testified that, given her experience and knowledge, the children would be at risk for harm if returned to Walter II or their parent’s care. The Court of Appeals sees no abuse of discretion by the lower court in accepting this evidence and finding the allegations true by a preponderance of the evidence.
Thus, the Court of Appeals affirms the juvenile court’s determination that the children came within the meaning of § 43-247(3)(a).