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In re Gavin S.

Court of Appeals of Nebraska

November 24, 2015

IN RE INTEREST OF GAVIN S. AND JORDAN S., CHILDREN UNDER 18 YEARS OF AGE.
v.
LACY S., APPELLANT, STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE, AND DANIEL S., APPELLEE AND CROSS-APPELLANT

Page 2

Appeal from the Separate Juvenile Court of Lancaster County: TONI G. THORSON, Judge.

Lisa F. Lozano for appellant.

Joe Kelly, Lancaster County Attorney, Alicia B. Henderson, and Joshua L. Christolear, Senior Certified Law Student, for appellee State of Nebraska.

Sanford J. Pollack, of Pollack & Ball, L.L.C., for appellee Daniel S.

IRWIN, INBODY, and RIEDMANN, Judges.

OPINION

IRWIN, J.

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[23 Neb.App. 402] I. INTRODUCTION

Lacy S. appeals and Daniel S. cross-appeals from an order of the separate juvenile court of Lancaster County, which order adjudicated Lacy and Daniel's two minor children to be within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013) and terminated Lacy's and Daniel's parental rights to the children. In their appeals, both Lacy and Daniel assert that the juvenile court erred in admitting into evidence a report authored by a doctor who was unavailable to testify during the juvenile court proceedings. In addition, both Lacy and Daniel allege that the juvenile court erred in finding sufficient evidence to warrant the adjudication of their children pursuant to § 43-247(3)(a) and to warrant the termination of their parental rights. For the reasons set forth below, we affirm the decision of the juvenile court.

II. BACKGROUND

Lacy and Daniel are the parents of Gavin S., born in August 2009, and Jordan S., born in June 2011. The events which gave rise to the juvenile court proceedings involving this family occurred on January 3, 2012.

In January 2012, Lacy was a stay-at-home mother who operated a daycare out of the family's home in order to earn additional income. One of the children who attended Lacy's daycare was 1-year-old Zachary T. On the morning [23 Neb.App. 403] of January 3, Zachary's father dropped him off at Lacy and Daniel's home. When Zachary arrived at the daycare, he was awake, alert, happy, and playful.

Approximately 1 hour after Zachary arrived at the daycare, Lacy left to take Gavin and Jordan to a doctor's appointment. Daniel stayed behind to watch Zachary, who was in a baby swing in the family's living room. When Lacy returned to the home a couple of hours later, Zachary was still in the baby swing. Zachary remained in the swing, not moving and not making any noise, until about 3:30 p.m., when Lacy checked on him. At that time, she discovered that Zachary was not breathing and felt cold to the touch. Lacy called the 911 emergency dispatch service and attempted to perform CPR on Zachary. Zachary was later pronounced dead at the hospital.

After Zachary's death, doctors discovered that he had a skull fracture which was a few weeks old and that he had significant additional trauma to his brain which the doctors believed had occurred much more recently.

Due to the events of January 3, 2012, the State filed a motion for emergency temporary custody of Gavin and Jordan on January 5. The juvenile court granted this motion, ordered Gavin and Jordan removed from Lacy and Daniel's home, and placed them in the custody of the Department of Health and Human Services. The children have remained in the custody of the department, in an out-of-home placement, since the entry of the court's order on January 5. The next day, on January 6, the State filed a petition alleging that Gavin and Jordan were within the meaning of § 43-247(3)(a).

The petition alleged that the children were within the meaning of § 43-247(3)(a) due to the faults or habits of Lacy and Daniel or due to being in a situation dangerous to life or limb or injurious to their health. Specifically, the petition alleged that Zachary had " died as a result of extensive, inflicted head trauma" while in Lacy's and Daniel's care; that neither Lacy nor Daniel had provided any explanation for Zachary's head [23 Neb.App. 404] trauma; and that consequently, Gavin and Jordan were at risk for harm.

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A few months after the filing of the original petition, on March 29, 2012, the State filed an amended petition and a motion for the termination of Lacy's and Daniel's parental rights. In the amended petition, the State again alleged that Gavin and Jordan were within the meaning of § 43-247(3)(a) due to the faults or habits of Lacy and Daniel or due to being in a situation dangerous to life or limb or injurious to their health. Specifically, the amended petition alleged:

On or about January 3, 2012, Zachary . . ., a one-year old child who had been in the care of [Daniel] and [Lacy], died as a result of cerebral edema which occurred while Zachary . . . was in the care of [Daniel] and/or [Lacy]. Zachary . . . also suffered from cerebral contusion(s), subarachnoid hemorrhages and bruises to his shoulders, which occurred while he was in the care of [Daniel] and [Lacy]. These injuries are most consistent with abusive head trauma.

The petition also alleged that Lacy and Daniel had not provided any explanation as to how Zachary's injuries occurred and that Lacy and Daniel had caused Zachary's death or failed to provide appropriate care to Zachary, which failure had contributed to or caused his death. The petition alleged that as a result of these facts, Gavin and Jordan were at risk for harm.

The motion for the termination of Lacy's and Daniel's parental rights alleged that termination was warranted pursuant to Neb. Rev. Stat. § 43-292(9) (Cum. Supp. 2014) because Lacy and Daniel subjected Zachary to aggravated circumstances, including, but not limited to, torture and chronic abuse. In addition, the State alleged that termination of Lacy's and Daniel's parental rights was in the children's best interests and that reasonable efforts to reunify the family were not required.

[23 Neb.App. 405] On January 13, 2014, the State filed a second amended petition and amended motion for termination of Lacy's and Daniel's parental rights. This petition and motion constitute the operative pleading for the proceedings at issue in this appeal. Accordingly, we lay out the allegations contained in this second amended petition and motion to terminate parental rights in some detail.

In the second amended petition, the State again alleged that Gavin and Jordan were within the meaning of § 43-247(3)(a) due to the faults or habits of Lacy and Daniel or due to being in a situation dangerous to life or limb or injurious to their health. Specifically, the second amended petition alleged:

A) On or between November of 2011 and January 3, 2012, [Daniel] and [Lacy] provided day-care for Zachary . . . .
B) On or after December 1, 2011, Zachary['s] skull was fractured while in the care of [Daniel] and/or [Lacy].
C) On or about January 3, 2012, Zachary . . . died as a result of cerebral edema and/or trauma to his brain which occurred while Zachary . . . was in the care of [Daniel] and/or [Lacy], and which was the result of child abuse and/or non-accidental or abusive head trauma.
D) On or about January 3, 2012, while in the care of [Daniel] and/or [Lacy], Zachary . . . suffered from acute injuries to his brain, acute injuries to his head, and acute symmetrical bruising to his shoulders which injuries and bruising are most consistent with child abuse and/or non-accidental or abusive head trauma.
E) Neither [Daniel] nor [Lacy] has provided an explanation as to how the above-described injuries, bruising, skull fracture, and/or ...

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