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In re Intrest of Kane L.

Supreme Court of Nebraska

May 4, 2018

In re Interest of Kane L., a child UNDER 18 YEARS OF AGE.
v.
Angela L., APPELLANT, AND ScOTT L., APPELLEE. State of Nebraska, appellee, In re Interest of Carter L., a child under 18 years of age. State of Nebraska, appellant and cross-appellee,
v.
Angela L., appellee and cross-appellant.

          1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently of the juvenile court's findings. When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.

         2. Constitutional Law: Due Process. The determination of whether the procedures afforded to an individual comport with constitutional requirements for due process presents a question of law.

         3. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court's conclusions with regard to evidentiary foundation for an abuse of discretion.

         4. _: _: _ . Because authentication rulings are necessarily fact specific, a trial court has discretion to determine whether evidence has been properly authenticated. An appellate court reviews a trial court's ruling on authentication for abuse of discretion.

         5. Parental Rights: Due Process. The fundamental liberty interest of natural parents in the care, custody, and management of their child is afforded due process protection. Such due process rights include the right to be free from an unreasonable delay in providing a parent a meaningful hearing after the entry of an ex parte temporary custody order.

         [299 Neb. 835] 6. Criminal Law: Trial: Evidence. Where objects pass through several hands before being produced in court, it is necessary to establish a complete chain of evidence, tracing the possession of the object or article to the final custodian; and if one link in the chain is missing, the object may not be introduced in evidence.

         7. _:_:_. Objects which relate to or explain the issues or form a part of a transaction are admissible in evidence only when duly identified and shown to be in substantially the same condition as at the time in issue.

         8. Trial: Evidence: Appeal and Error. Whether there is sufficient foundation to admit physical evidence is determined on a case-by-case basis. An appellate court's review concerning the admissibility of such evidence is for an abuse of discretion.

         9. Parental Rights. The purpose of the adjudication phase is to protect the interests of the child.

         10. Juvenile Courts: Jurisdiction: Parental Rights: Proof. The Nebraska Juvenile Code does not require the separate juvenile court to wait until disaster has befallen a minor child before the court may acquire jurisdiction. While the State need not prove that the child has actually suffered physical harm, Nebraska case law is clear that at a minimum, the State must establish that without intervention, there is a definite risk of future harm. The State must prove such allegations by a preponderance of the evidence.

          Appeals from the County Court for Buffalo County: John P. Rademacher, Judge. Judgment in No. S-17-720 affirmed. Judgment in No. S-17-775 reversed, and cause remanded for further proceedings.

          Elizabeth J. Chrisp, of Jacobsen, Orr, Lindstrom & Holbrook, PC, L.L.O., for Angela L., appellant in No. S-17-720 and appellee in No. S-17-775.

          Mandi J. Amy, Deputy Buffalo County Attorney, for State of Nebraska, appellee in No. S-17-720 and appellant in No. S-17-775.

          Vikki S. Stamm, of Stamm, Romero & Associates, P.C., L.L.O., guardian ad litem.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Strong, District Judge.

          [299 Neb. 836] Heavican, C.J.

         INTRODUCTION

         Kane L. and Carter L. were removed from the family home as a result of methamphetamine use by their mother, Angela L., and their father, Scott L. The county court for Buffalo County, sitting as a juvenile court, adjudicated Kane but not Carter. In separate appeals, Angela challenged Kane's adjudication and certain rulings of the juvenile court with respect to the petition seeking to adjudicate Carter. The State, acting through the Buffalo County Attorney's office, appealed the juvenile court's failure to adjudicate Carter. We affirm the juvenile court's order adjudicating Kane and reverse the juvenile court's order declining to adjudicate Carter, and remand the cause for further proceedings.

         BACKGROUND

         Angela is the mother of Carter, born in September 2000, and Kane, born in September 2008. Carter and Kane's biological father is Scott. Scott and Angela are also biological parents to Lily L. Lily was 19 years old at the time of these proceedings. As such, Lily is not involved in these juvenile court actions, although placement of Kane and Carter was with her for a period of time.

         In January 2017, Angela gave birth to another boy. Scott is not the biological father of this child. Angela sought to utilize Nebraska's "Safe Haven" law[1] with regard to the baby; this child's placement is also not at issue in these juvenile court actions.

         Angela provided a urine sample at the time of her admission to the hospital prior to the baby's birth, and that sample tested positive for drug use. Later, the baby's "cord blood" tested positive for methamphetamine, amphetamine, "THC, " and oxy-codone. Law enforcement was then contacted, because of the following: Angela wished to relinquish the baby, the positive [299 Neb. 837] drug screen, and the hospital social worker's knowledge that Angela had other children at home.

         The Department of Health and Human Services and law enforcement first contacted Angela. She admitted to using methamphetamine and marijuana during her pregnancy, including methamphetamine 3 to 4 days before giving birth and marijuana within a day or so of giving birth. Angela insisted that she had never used drugs in the family home and that Scott did not use methamphetamine. Angela declined to give permission for Kane to submit to drug testing.

         The Department of Health and Human Services and law enforcement then made contact with Scott and Kane. At this time, Carter was on juvenile probation and was at a juvenile detention center. Scott denied methamphetamine use and, after a few days, gave consent for Kane to be tested.

         Toenail testing was done on Kane, and an initial positive result for both THC and methamphetamine was returned. The sample was insufficient to test further for the presence of THC, but the presence of methamphetamine was confirmed by a second test. The presence of methamphetamine, but not amphetamine, suggests that Kane's exposure was environmental in nature.

         Scott was eventually tested. His saliva test was initially returned as a presumptive positive for methamphetamine. Scott indicated surprise at this result and stated that he had not used methamphetamine in a week. Scott later indicated that he had not used in the last 4 days. This presumptive positive test was sent in for laboratory testing and eventually tested negative. There was evidence in the record that the sample was initially returned to the organization that gathered the sample, because the wrong type of vial had been used, and that the organization had to "buy new vials and put the saliva into the vial and resend it." Further testing was apparently not sought at the time, because Scott had admitted to methamphetamine use.

          [299 Neb. 838] As a result of the safety concerns presented by both Angela's and Scott's use of methamphetamine, arrangements were made to place Kane and Carter, who had just returned to the family home, with Lily. The children were later moved to a placement with their maternal grandparents.

         The county filed a motion for temporary custody that was granted ex parte on February 17, 2017. The petition to adjudicate was filed on February 21-the next business day following the Presidents Day court holiday. The record indicates that at least Scott was present when Kane and Carter were removed. The record further indicates that Scott and Angela had input into the initial placement of the children with their oldest daughter, Lily, and had visitation with the children throughout, initially in the family home.

         Over the next few days, before the first scheduled hearing on March 8, 2017, counsel was appointed for Scott and Angela. On March 1, both Scott and Angela filed answers, through counsel, denying the allegations set forth in the petition to adjudicate.

         While the first hearing was scheduled to be held March 8, 2017, it was actually held on March 1. The journal entry for that hearing reflects that Scott and Angela were present without counsel and were shown a rights advisory video. No bill of exceptions for that hearing is in the record. A later journal entry, entered June 21, indicated that a protective custody and detention hearing had been scheduled for March 1 as well, but that this hearing was waived by Scott's and Angela's respective counsel as counsel sought to conduct more discovery and indicated Scott or Angela would motion for such a hearing if it was desired.

         Various motions were filed by all parties, and multiple hearings were held in the time leading up to the first adjudication hearing held May 15, 2017, and eventual adjudication on June 30. There is no bill of exceptions in the appellate record for those hearings.

          [299 Neb. 839] Angela appeals from Kane's adjudication. The county attorney appeals and Angela cross-appeals from the order denying the petition to adjudicate Carter. Scott filed a notice of appeal from Kane's adjudication, but did not further participate.

         ASSIGNMENTS OF ERROR

         Appeal in Case No. S-17-720, In ...


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