In re Interest of Jeremy U. et al.. children under 18 years of age.
Tiffany G., appellee and cross-appellant. State of Nebraska, appellant and cross-appellee. and Brandon M., appellee.
Statutes: Appeal and Error. Statutory
interpretation is a question of law that an appellate court
resolves independently of the trial court.
Juvenile Courts: Appeal and Error. An
appellate court reviews juvenile cases de novo on the record
and reaches a conclusion independently of the juvenile
Jurisdiction: Words and Phrases. Subject
matter jurisdiction is the power of a tribunal to hear and
determine a case in the general class or category to which
the proceedings in question belong and to deal with the
general subject matter involved.
Juvenile Courts: Parental Rights: Notice.
The factual allegations of a petition seeking to adjudicate a
child must give a parent notice of the bases for seeking to
prove that the child is within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016).
Juvenile Courts: Proof. The State has the
burden to prove the allegations of a petition seeking to
adjudicate a child by a "preponderance of the
evidence," which is the equivalent of the greater weight
of the evidence.
Evidence: Words and Phrases. The greater
weight of the evidence means evidence sufficient to make a
claim more likely true than not true.
Juvenile Courts: Minors. The State's
right in juvenile proceedings is derived from its parens
patriae interest, and it is pursuant to that interest that
the State has enacted the Nebraska Juvenile Code.
The State has a right to protect the welfare of its resident
children, which is a governmental interest of great
Neb. 735] 9.__:__. The purpose of the adjudication phase of a
juvenile proceeding is to protect the interests of the child.
Statutes. Statutory language is to be given
its plain and ordinary meaning.
Statutes: Legislature: Intent. In discerning
the meaning of a statute, a court should determine and give
effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute
considered in its plain, ordinary, and popular sense.
Statutes: Juvenile Courts: Minors: Appeal and
Error. An appellate court liberally construes
statutes within the Nebraska Juvenile Code to accomplish its
purpose of serving the best interests of the juveniles who
fall within it.
Juvenile Courts: Parental Rights: Words and
Phrases. "Parental" as used in the phrase
"lacks proper parental care" in Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016) describes the type and
nature of care rather than the relationship of the person
. "Proper parental care" under Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016) includes providing a home,
support, subsistence, education, and other care necessary for
the health, morals, and well-being of the child. It commands
special care for the children in special need because of
mental condition. It commands that the child not be placed in
situations dangerous to life or limb, and not be permitted to
engage in activities injurious to his or her health or
Statutes. A court must attempt to give
effect to all parts of a statute, and if it can be avoided,
no word, clause, or sentence will be rejected as superfluous
Juvenile Courts: Jurisdiction: Proof. While
the State need not prove that the child has actually suffered
physical harm to assert jurisdiction under Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016), Nebraska case law is
clear that at a minimum, the State must establish that
without intervention, there is a definite risk of future
from the Separate Juvenile Court of Douglas County: Chad M.
W. Kleine, Douglas County Attorney, Anthony M. Hernandez, and
Alexander T. Kelly, Senior Certified Law Student, for
Reginald Young, of Young & Young, for appellee.
Neb. 736]Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
newborn reportedly tested positive for methamphetamine, the
State sought to adjudicate the newborn-who had been in a
hospital with his mother-and his two siblings-who lived with
and received appropriate care from their grandmother-solely
on the basis that the children "lack[ed] proper parental
care." The juvenile court declined to adjudicate
them, finding that the State failed to prove they were at
risk of harm. On appeal, our decision regarding the older
siblings is driven by the plain meaning of the statute on the
State's chosen ground, its choice not to allege any other
ground, and its failure to establish that the mother exposed
or threatened to expose them to her drug usage. We affirm the
juvenile court's decision as to them. But because the
evidence demonstrated that the newborn lacked proper parental
care due to his mother's fault or habits, we reverse the
court's decision as to him and remand the cause for
G. is the biological mother of Savannah M., born in March
2015; Ashton M., born in April 2016; and Jeremy U., born in
October 2018. Brandon M. is the biological father of
Savannah. The fathers of Ashton and Jeremy are not involved
in these proceedings.
days after Jeremy's birth, the State filed a juvenile
petition seeking to adjudicate the children under §
43-247(3)(a) on only one ground: due to a lack of proper
parental care by reason of Tiffany's fault or habits.
Within the scope of that ground, the petition alleged that
the children were at risk for [304 Neb. 737] harm due to
Tiffany's use of alcohol or controlled substances, her
failure to provide proper parental care, and her failure to
provide stable housing.
same day, the State filed two motions concerning custody. One
was an ex parte motion for immediate custody of Jeremy. The
other was a motion for protective custody of Savannah and
Ashton. Both motions sought an order placing the temporary
care and custody of the children with the Nebraska Department
of Health and Human Services (DHHS) with placement to exclude
Tiffany's home. The court granted the State's motion
with respect to Jeremy, stating that Jeremy's urine drug
screen was positive for methamphetamine and that Tiffany
admitted recent use of the drug. The court later ordered that
Savannah and Ashton be placed in the temporary custody of
DHHS, with placement to exclude Tiffany's home.
January 2019, the State filed a supplemental petition. It
alleged that Savannah lacked proper care by reason of the
fault or habits of Brandon. Specifically, it alleged that
Brandon failed to provide proper parental care and safe
housing, which put Savannah at risk for harm. The court
granted the State's motion for an ex parte order for
immediate temporary custody of Savannah.
court heard testimony from two witnesses during an
adjudication hearing. Neither parent testified.
Christensen, a child and family services specialist with DHHS
until November 2018, conducted an initial assessment for the
family. The intake that she received informed her that
Tiffany was in the hospital for Jeremy's birth and that
there were allegations Tiffany tested positive for
methamphetamine. When Christensen met with Tiffany, Tiffany
reported she was "couch surfing at the time, didn't
have a stable place to live."
testified that Tiffany admitted using methamphetamine almost
daily for the past 13 years. She also used [304 Neb. 738]
marijuana "pretty often," but not as frequently as
methamphetamine. According to Christensen, Tiffany said she
used methamphetamine within the week of Jeremy's birth
and she believed Jeremy would test positive for the drug.
Tiffany had sought treatment, but had not successfully
testified that the effects of methamphetamine make it more
difficult for an individual to properly
"parent'' his or her children. Parents under the
influence of methamphetamine often have difficulty making
appropriate decisions. Christensen would categorize children
under age 3-which these children were-as vulnerable children
in their parent's custody if the parent was under the
influence of methamphetamine. She testified that a child in
the presence of a parent who was under the influence of
methamphetamine would be unsafe.
Christensen conducted her investigation, Tiffany had legal
custody of the children, but not physical custody. Savannah
and Ashton were residing with Tiffany's mother, Tina G.
Christensen testified that Savannah and Ashton had
appropriate clothing, had a bedroom to sleep in at Tina's
house, and appeared to be in good health. Jeremy was
initially placed with Carolina O., a friend of the family,
but he was eventually placed with Tina.
at the hospital, Christensen drafted a safety plan. As part
of the safety plan, Tiffany agreed to participate in domestic
violence classes and to comply with any recommendations of a
drug and alcohol evaluation. Tiffany arranged to have someone
else care for her children. According to the plan, Tina would
care for Savannah and Ashton and Jeremy would stay with
Carolina. Tiffany, Tina, and Carolina all signed the safety
plan. Christensen observed Tiffany sign a temporary
delegation of parental authority form as to Savannah and
Ashton and one regarding Jeremy. According to Christensen, a
parent's signing a temporary delegation of parental
authority form shows that the parent is "willing to at
least try to keep that child safe and out of risk of
harm." Neither the safety plan nor the delegation forms
are in our record.
Neb. 739] Despite the execution of those forms, the children
were removed and placed in the temporary care and custody of
DHHS. Christensen did not agree with the removal of the
children, because DHHS' policy is to first offer a parent
a safety plan and provide an opportunity to appropriately
care for a child without court involvement. Specifically, she
did not agree with Jeremy's removal because Tiffany was
not given a chance to enact any of the measures agreed upon
in the safety plan.
to Christensen, DHHS determined that the allegations of the
petition were unfounded. She explained that it was not child
abuse or neglect for Tiffany to realize that she "could
not care for her children physically because of her drug use
and plac[e] them with appropriate parents who could make sure
that . . . her children received everything that they needed
in order to be happy and healthy." And due to the safety
plan, Christensen did not believe the children were at risk
for immediate harm. Christensen acknowledged that the
temporary delegation of parental powers could be revoked by a
parent at any time. But she testified that as long as a
parent who is constantly under the influence of
methamphetamine has continued to leave the child with an
appropriate caregiver, that is not a risk for harm.
Buckley, an employee of PromiseShip, provided testimony
relevant to Brandon. Her duties with PromiseShip included
meeting with families, assessing ongoing safety risks, and
"looking out for the best interests of the children and
their well-being." Buckley opined that Savannah would be
at risk for harm in Brandon's custody due to his not
having a house or income and his inability to meet
Savannah's needs. Brandon was in jail when Buckley met
with him on January 7, 2019, but he was released on January
16. Buckley had not spoken with Brandon since his release,
testifying that he "ha[d] not been engaging" and
would not return her telephone calls or respond to her text
messages. According to Buckley, Brandon had not attempted to
visit or call Savannah.
Neb. 740]3. Juvenile Court's Order
court found that the State proved some of the allegations of
the petition and supplemental petition. It found to be true
that Tiffany failed to provide the juveniles with proper
parental care, support, supervision, and/or protection and
that she failed to provide them with safe, stable housing.
According to the order, the evidence showed that at the time
of removal, Savannah and Ashton had not been living with
Tiffany and that Tiffany "had not seen them for at least
two years." With respect to Brandon, the court found
that the State proved he failed to provide Savannah with
proper parental care and safe housing.
court dismissed the petition due to insufficient evidence
that the juveniles were at risk for harm due to Tiffany's
use of controlled substances, failure to provide proper
parental care, and failure to provide stable housing. The
court likewise dismissed the allegation of the supplemental
petition that Brandon's failures put Savannah at risk for
court found that In re Interest of Justine J. et
al. was "controlling." It determined
that the State had not shown any risk of harm to Savannah and
Ashton, noting that Christensen did not believe the children
were at risk of harm. With regard to Jeremy, the court stated
that Christensen's testimony "showed that there was
not a risk of harm . . . because [Tiffany] had made a
rational decision to find a suitable care taker due to her
continued methamphetamine addiction." According to the
court, Tiffany "had exhibited this rational thinking on
at least three occasions, coinciding with her three
children." The court recognized that Christensen
testified the children would be at a risk of harm if in
Tiffany's physical ...