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In re Tyerca R.

Court of Appeals of Nebraska

October 29, 2013

In re Interest of Tyerca R. et al., children under 18 years of age.
v.
Kathryn H., appellee. State of Nebraska, appellant,

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the County Court for Box Butte County: Russell W. Harford, Judge.

K.J. Hutchinson, Box Butte County Attorney, for appellant.

Michael T. Varn for appellee ean Rhodes, guardian ad litem.

Irwin, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Bishop, Judge.

The State filed separate petitions alleging that Tyerca R., Angel R., and Zekyel H. were within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). The county court for Box Butte County, sitting as a juvenile court, dismissed the juvenile petitions after finding that the petitions were not sufficiently pled to put the children's biological mother, Kathryn H., on notice that it was her behavior, rather than her live-in boyfriend's behavior, that was going to be at issue at the adjudication hearing. The State appeals. On our order, these three appeals have been consolidated. We affirm the juvenile court's decision in all three cases.

BACKGROUND

Kathryn is the mother of Angel, born in January 2008; Tyerca, born in November 2008; and Zekyel, born in October 2011. The children were removed from Kathryn's care on July 21, 2012, and placed into emergency protective custody amidst allegations that Tyerca and Angel had been abused by Kathryn's live-in boyfriend, Andrew L.

On July 23, 2012, before a juvenile petition had been filed, a hearing was held so that the State could "give the Court . . . information for the ex parte order so that these children can remain in the Department of Health and Human Services, who have custody of the children right now." At the hearing, the State called Colleen Busch, an investigator with the Alliance Police Department, "to swear to her affidavit as to the basis for [the children's] removal." Busch's testimony consisted of the following: The children were taken into emergency protective custody on July 21 because of suspected child abuse. Tyerca and Angel were covered in bruises. Busch interviewed both Tyerca and Angel, and one of the girls told her, "Mom said not to tell because the police will arrest dad." Tyerca and Angel stated that Andrew disciplines them by giving them a choice of two out of three punishments: slap, spank, or choke. Angel told Busch that Andrew had punished her on July 20 by slapping and choking her. Angel also told Busch that Kathryn was at work when Andrew punished her. The doctor who examined the girls described the injuries as a "classic case of extreme child abuse." Andrew was arrested on charges of felony child abuse and strangulation. The girls were removed, but the Department of Health and Human Services (DHHS) placed the children back with Kathryn, with a worker who was supposed to be in the home round-the-clock. At the end of the hearing, the juvenile court orally pronounced that the children should remain in the custody of DHHS "with placement they deem appropriate, which, I guess, is back in the family home with the mother." The next day, July 24, a written journal entry and order was filed in each case reflecting the court's oral pronouncement. Busch's affidavit, titled "Affidavit in Support of Custody and Petition, " was also filed in all three cases on July 24--the affidavit filed in each case was identical, and all three children's names appeared in the caption of the affidavit.

Also on July 24, 2012, the State filed three separate petitions alleging that the children were within the meaning of § 43-247(3)(a). For Tyerca and Angel, the State's petitions alleged that each girl "is a Juvenile who lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian, to wit: by being slapped, spanked, or choked by her custodian, Andrew . . . while in his care." For Zekyel, the State's petition alleges that he "is a Juvenile who lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian, to wit: by living in a home where child abuse is occurring." All three petitions list Kathryn as the "Parent of the Juvenile" and Andrew as the "Guardian of the Juvenile, " and reflect that Kathryn and Andrew were living at the same address.

In Busch's "Affidavit in Support of Custody and Petition, " she detailed her investigation and that of other law enforcement agencies regarding the welfare of Tyerca, Angel, and Zekyel. The affidavit indicated that on July 21, 2012, Officer M. Perry went to Kathryn's residence on a welfare check after receiving a report that two girls had been observed to have multiple areas of bruising. With Kathryn present, Perry observed numerous bruises on both Tyerca and Angel and asked them how they got the bruises. The girls told Perry that they had been hitting each other. When Kathryn left the room, Angel showed Perry a bruise on her neck and Perry asked what had happened. In response, Angel placed both of her hands around her neck and demonstrated a choking hold. Perry then asked Angel, "'[W]ho did that?'" Angel replied, "'Daddy, '" and pointed to the hallway where Andrew was standing. Kathryn was told to take the children to the police department. At the police department, Busch saw the children and determined that a forensic interview needed to be completed. Busch interviewed Angel, who started out by whispering that "she's not supposed to tell." Busch reassured Angel that it was okay to tell, and then Angel disclosed that Andrew punishes her and Tyerca when they are bad by giving them a choice of two punishments out of three: slap, spank, or choke. Angel stated that while at home on July 20, she got into trouble for fighting with her sister and Andrew told her to pick her punishments. Angel stated that she picked choking and spanking. According to Busch's affidavit, Angel stated that when Andrew choked her, "'it hurt and made her cry.'" Angel said that the punishments happen while her mother is at work. Angel stated that Tyerca is also given these punishments when Tyerca is "naughty." When asked for further details, Angel said her mother told her "'not to tell'" or their "'father'" would go to jail. Busch interviewed Tyerca, who was able to articulate that she was also punished in the same manner as Angel. Tyerca indicated that "'Daddy'" did the punishments.

Busch's affidavit further stated that she observed bruises on the girls' faces, heads, arms, hands, and legs and that the bruises appeared to be in different stages of healing. Busch stated that Andrew was taken into custody for felony child abuse. When Andrew was arrested, Kathryn stated that she never saw Andrew hit the children and that Andrew would "'never do that.'" The affidavit goes on to state that Kathryn continued to claim that the girls inflicted the injuries on each other and that Kathryn stated that when Andrew bonded out, he would continue to live with her and all three children.

Busch's affidavit also stated that the girls were taken to a hospital for medical treatment and examination. The girls were x-rayed and photographed. She then described the bruising on the girls in more detail. Busch stated that the doctor who examined the girls ...


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