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In re Elijah P.

Court of Appeals of Nebraska

February 21, 2017

In re Interest of Elijah P. et al., children under 18 years of age.
Erika D., Appellant, State of Nebraska, Appellee and Cross-Appellee. and Joshua P., Appellee and Cross-Appellant.

         1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings.

         2. Parental Rights: Rules of Evidence: Due Process. In termination of parental rights hearings, the Nebraska Evidence Rules do not apply; instead, due process controls and requires that fundamentally fair procedures be used by the State in an attempt to prove that a parent's right to his or her child should be terminated.

         3. Parental Rights. Neb. Rev. Stat. § 43-292(9) (Reissue 2016) allows for terminating parental rights when the 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.

         4. ___. Whether aggravated circumstances under Neb. Rev. Stat. § 43-292(9) (Reissue 2016) exist is determined on a case-by-case basis.

         5. Parental Rights: Words and Phrases. Where the circumstances created by the parent's conduct create an unacceptably high risk to the health, safety, and welfare of the child, they are aggravated.

         6. Evidence: Words and Phrases. Clear and convincing evidence is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.

         7. Parental Rights. Generally, a finding of aggravated circumstances under Neb. Rev. Stat. § 43-292(9) (Reissue 2016) is based on severe, intentional actions on the part of the parent.

         [24 Neb.App. 522] 8. ___. Neb. Rev. Stat. § 43-292(2) (Reissue 2016) provides that parental rights may be terminated 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.

         9. Juvenile Courts: Rules of Evidence. Juvenile courts must apply the Nebraska Evidence Rules at adjudication hearings.

         10. Trial: Expert Witnesses. Once a party calls into question an expert testimony's factual basis, data, principles, methods, or their application, the trial court must determine whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline, and the court does not have the discretion to abdicate its gatekeeping duty.

         11. ___: ___. In performing its gatekeeping duty, a trial court has considerable discretion in deciding what procedures to use in determining if an expert's testimony satisfies the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), but a necessary component of the trial court's duty is that when faced with such an objection, the court must adequately demonstrate by specific findings on the record that it has performed its duty as gatekeeper.

         12. Trial: Expert Witnesses: Appeal and Error. After a sufficient objection under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), has been made, the losing party is entitled to know that the trial court has engaged in the heavy cognitive burden of determining whether the challenged testimony was relevant and reliable and is entitled to a record that allows for meaningful appellate review.

         13. Trial: Expert Witnesses. Without specific findings or discussion on the record, it is impossible to determine whether a trial court carefully and meticulously reviewed proffered scientific evidence or simply made an off-the-cuff decision to admit expert testimony.

         14. ___: ___. In performing its gatekeeping duty, a trial court must explain its choices, and the record must include more than a recitation of the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), boilerplate language and a conclusory statement that the challenged evidence is or is not admissible.

         15.___: ___. A trial court adequately demonstrates that it has performed its gatekeeping duty when the record shows (1) the court's conclusion whether the expert's opinion is admissible and (2) the [24 Neb.App. 523] reasoning the court used to reach that conclusion, specifically noting the factors bearing on reliability that the court relied on in reaching its determination.

         16. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews the record de novo to determine whether a trial court has abdicated its gatekeeping function.

         17. Trial: Expert Witnesses. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), do not require that courts reinvent the wheel each time that evidence is adduced, and in such situations, a less extensive analysis and reasoning may be allowed.

         18. New Trial. Only errors that are prejudicial to the rights of the unsuccessful party justify a new trial.

         19. Trial: Expert Witnesses. Only if the admission or exclusion of the expert's testimony did not affect the result of the trial unfavorably for the party against whom the ruling was made will a court's abdication of its gatekeeping duty be deemed nonprejudicial.

         20. Juvenile Courts: Jurisdiction: Proof. At the adjudication stage, in order for a juvenile court to assume jurisdiction of minor children under Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014), the State must prove the allegations of the petition by a preponderance of the evidence.

         21. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile, the court's only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of Neb. Rev. Stat. § 43-247 (Cum. Supp. 2014).

         22. Juvenile Courts: Proof. While the State need not prove that the juvenile has actually suffered physical harm, at a minimum, the State must establish that without intervention, there is a definite risk of future harm.

         Appeal from the Separate Juvenile Court of Douglas County: Christopher Kelly, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

          Thomas C. Riley, Douglas County Public Defender, and Zoe R. Wade for appellant.

          Donald W. Kleine, Douglas County Attorney, Amy Schuchman, Anthony Hernandez, and Shinelle Newman, Senior Certified Law Student, for appellee State of Nebraska.

         [24 Neb.App. 524] Matthew R. Kahler, of Finley & Kahler Law Firm, PC, L.L.O., for appellee Joshua P.

          Moore, Chief Judge, and Riedmann and Bishop, Judges.

          RIEDMANN, JUDGE.


         Erika D. appeals and Joshua P. cross-appeals from the order of the separate juvenile court of Douglas County which adjudicated the parties' minor children under Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2014) and terminated Erika's and Joshua's parental rights as explained below. We affirm the adjudication, but for the reasons that follow, we reverse the termination and remand the cause for further proceedings.


         Erika and Joshua are the parents of five minor children: Joshua P., Jr. (Joshua Jr.), born in February 2006; Zion P., born in February 2008; Isaiah P., born in January 2013; Genesis P., born in November 2013; and Faith P., born in May 2015. Elijah P., born in February 2013, is the biological child of Joshua and another woman, but he had been under the care of Erika since October 2014.

         The factual basis underlying the case occurred in January 2015 and is largely undisputed. At that time, the children, including Elijah, were residing with Erika. Joshua did not reside in the home, but he would see the children several times per week. On January 2, Elijah was standing on the armrest of the couch at Erika's house and fell off, landing face first on the floor, which was made of "vinyl covering tile" placed over concrete. He sustained a "knot" above his right eye that began to swell. Erika comforted Elijah and then called Joshua and sent him a photograph of Elijah's face by text message. Joshua told her to put some ice on the injury and keep Elijah awake for a while to monitor his condition. Elijah cried briefly but then acted normally-playing, eating, and drinking. When Joshua arrived at Erika's house a short while later, he talked [24 Neb.App. 525] to Elijah and noticed nothing unusual about Elijah's behavior or demeanor. A few days later, Elijah began to develop a black eye from the fall, but otherwise there were no observable injuries or anything out of the ordinary about his behavior over the week following the fall.

         On the evening of January 11, 2015, Erika fed the children dinner and gave them baths. She put the younger children, including Elijah, to bed around 8:30 p.m., and Elijah "went down easily." A little while later, she checked on him and noticed he was lying down, but his arms were straight up in the air. She pulled the covers off of him and called his name, but he did not wake up or put his arms down. Erika also noticed that he appeared to be stiff. She lowered Elijah's arms down, and then he relaxed and the stiffness went away.

         Erika continued to watch Elijah, and a couple minutes later, he stiffened again. Erika then attempted to call Elijah's mother, and when there was no answer, she sent his mother a text message asking if he had ever previously experienced stiffness in his sleep. By this time, Elijah had relaxed again and looked like he was sleeping. Elijah's mother responded that Elijah "was super stiff especially in his legs" when he was born, but it had gone away, and she thought it was unusual that the stiffness had returned. After receiving the text message from Elijah's mother, Erika felt less concerned, because Elijah had experienced something similar in the past. Nevertheless, around 9 p.m., Erika called Joshua, told him about Elijah's stiffness, and asked him to come over.

         On his way to Erika's house, Joshua searched the Internet for information on a 2-year-old experiencing stiffness while sleeping, and what he read was not alarming to him. The results of his search revealed that other children experienced stiffness in their sleep off and on-sometimes the parents were able to alleviate the condition and sometimes they were not, but by the next morning the children would be fine.

         When Joshua arrived at Erika's house, he observed stiffness in Elijah's arms and legs and attempted to awaken him [24 Neb.App. 526] by calling his name and touching him on the shoulder. Elijah's body then relaxed. Erika showed Joshua the text message from Elijah's mother reporting that Elijah had experienced stiffness when he was born. Because Elijah had previously experienced something similar, was breathing normally, and appeared to be sleeping, Joshua told Erika to let Elijah continue to sleep and see how he was in the morning when he woke up.

         Joshua stayed at Erika's house for approximately an hour, and during that time, there was no indication that Elijah's stiffness had returned. When Joshua left Erika's house, he asked Erika to call him if anything changed or Elijah became stiff again and said if that happened, he would come back. Other than stiffness, Erika and Joshua did not observe any unusual body movements such as shaking, jerking, or signs of a seizure; Elijah's eyes were closed, and he seemed to be sleeping.

         After Joshua left, Erika continued to monitor Elijah's condition throughout the night, but he did not experience any more stiffness overnight and appeared to be sleeping. She did not call Joshua because nothing concerning occurred overnight, and Elijah's condition did not change until around 8:30 a.m. the next day. After the older children left for school on the morning of January 12, 2015, Erika heard Elijah whining, so she thought he was awake and ready for breakfast. When she went to get him, she noticed his leg was stiff and one of his eyes was open, but he was not focusing or looking at her. She then called Joshua and asked him to take Elijah to the hospital.

         When Joshua arrived, he observed the same symptoms Erika had reported, and he immediately took Elijah to the hospital. There, Elijah was diagnosed with a skull fracture above the right eye, a subdural hematoma, and a significant brain injury. He was taken into surgery to have the hematoma drained. Because of concerns that Elijah's injuries were the result ...

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