In re Cole J.
| Citation | 925 N.W.2d 365,26 Neb.App. 951 |
| Decision Date | 26 February 2019 |
| Docket Number | No. A-18-260.,A-18-260. |
| Parties | IN RE Interest of COLE J., A Child Under 18 Years of Age. State of Nebraska, Appellee, v. Cole J., Appellant. |
| Court | Nebraska Court of Appeals |
Joe Nigro, Lancaster County Public Defender, and Mark D. Carraher, for appellant.
Pat Condon, Lancaster County Attorney, Margeaux K. Fox, and John M. Ward, for appellee.
Cole J. appeals from his adjudication as a juvenile within the meaning of Neb. Rev. Stat. § 43-247(3)(b) (Reissue 2016) following a trial in the separate juvenile court of Lancaster County. On appeal, Cole alleges the court erred in admitting evidence over his objections and relying on insufficient evidence when it found he was habitually truant. For the reasons that follow, we affirm.
On November 29, 2016, the State filed a truancy petition, alleging that Cole was habitually truant from school between August 24 and November 21, 2016. The State sought Cole’s adjudication as a juvenile defined by § 43-247(3)(b). Cole, born in January 2001, was 15 years old when the action commenced. He lived with his mother, Laurel J., in Lincoln, Nebraska, where he attended high school.
An adjudication hearing was held on February 9, 2018. The State called two witnesses who both worked at Cole’s high school: an attendance technician, Kaley Brewer, and a student advocate and truancy diversion coordinator, Brandon Prater. The court also admitted three exhibits.
According to Brewer, when students at Cole’s high school miss a class period without an excuse, their teachers mark them truant and their parents automatically receive a telephone call at the end of the day. The school ordinarily sends notification letters to parents each time a student misses 5, 10, or 15 days. After a student misses 10 days of school, the school attempts to schedule a collaborative plan meeting with the student and his or her parents. When a student misses 20 days of school, the office of the Lancaster County Attorney (County Attorney) is notified.
Cole was enrolled in seven 1-hour periods each school day. From August 24 through November 21, 2016, Cole was truant for 158 1-hour periods, which equates to just over 22 school days. Due to Cole’s absences, the school held a collaborative plan meeting on November 11. Brewer, along with a school administrator and a school counselor, attended this meeting with Cole and outlined actions to be taken. Laurel did not attend the meeting. Brewer encouraged Cole to talk with the person providing him transportation in the morning about getting him to school on time. A collaborative plan document was created in the meeting which identified only the need for the family to work with community services in order to improve attendance. The plan of action devised was for Brewer to work with Prater about enrolling Cole in the truancy diversion program.
Because Laurel did not attend the collaborative plan meeting, Brewer sent home with Cole a letter from the County Attorney. This letter outlined community-based resources that were available to the family. Specifically, the letter referred to the " ‘Lancaster County Resource Guide’ " and provided a web address at which it could be reviewed. The letter also provided contact information for the "Lincoln/Lancaster County Human Services Office." The letter closed by stating the County Attorney’s hope that referrals to such programs would assist Cole and his family in addressing his truancy issues. Brewer requested that Cole have his mother, Laurel, initial the collaborative plan document to acknowledge that she had received the letter and return a copy to the school, but this never occurred.
Cole was subsequently referred to the County Attorney for a truancy filing, and the County Attorney determined that Cole should enroll in the school’s truancy diversion program. Despite the plan to place Cole in the diversion program, the petition herein was filed on November 29, 2016.
The truancy diversion program met every 2 weeks and connected students with a student advocate such as Prater. Students and parents are made aware of the program’s expectations through an initial truancy diversion meeting, and students sign a contract to participate in the program. Following the filing of the petition, Cole and Laurel signed a contract for the program. However, Cole continued to miss classes and was ultimately removed from the truancy diversion program.
Over Cole’s objection, the court admitted exhibit 3, which showed that telephone messages were left by Brewer for Laurel on October 20 and 25, 2016, attempting to schedule the collaborative plan meeting. The exhibit also recites that Laurel did call the school on October 31, seeking to reschedule the meeting. The next day, Brewer called back, but received no answer. Brewer again left a voicemail. Brewer also left Laurel a telephone message after she did not attend the collaborative plan meeting on November 11. The court noted that the evidence showed documented efforts by the school to notify Laurel of the collaborative plan meeting and to follow up with her when she did not show up to the meeting.
The court held that the absence of Laurel at the collaborative plan meeting was not an absolute defense to the truancy filing, especially because the school repeatedly attempted to contact Laurel and notify her of the meeting. Thus, the court held the school’s efforts satisfied the requirements of Neb. Rev. Stat. § 79-209 (Reissue 2014) and adjudicated Cole as a juvenile within the meaning of § 43-247(3)(b).
Following the adjudication hearing, the court took the matter under advisement and issued its written decision on February 21, 2018. The court found that Cole had been absent for 22 days during a roughly 3-month period from August 24 through November 21, 2016. Thus, the court held that Cole was a juvenile who was habitually truant as defined by § 43-347(3)(b).
In its order, the court noted that it allowed evidence of Cole’s enrollment in a truancy diversion program after November 21, 2016, only insofar as determining whether the court should still exercise jurisdiction since the alleged period of truancy occurred almost 1½ years earlier.
Cole now appeals.
Cole assigns the juvenile court erred in (1) receiving exhibit 3 over hearsay and foundation objections, (2) receiving evidence of actions taken outside the time period alleged in the petition, and (3) relying on insufficient evidence to adjudicate him.
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings. In re Interest of Samantha C. , 287 Neb. 644, 843 N.W.2d 665 (2014).
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Smith , 286 Neb. 856, 839 N.W.2d 333 (2013). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. State v. Smith, supra . An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id .
Cole contends that the juvenile court erred in admitting exhibit 3, a log of communications between the school and Cole or Laurel, over his objections based on hearsay and foundation. In response, the State contends that the communication log was properly admitted under the business records exception to the hearsay rule. We agree that exhibit 3 was properly admitted.
Hearsay is an out-of-court statement made by a human declarant that is offered in evidence to prove the truth of the matter asserted. State v. Williams, 26 Neb.App. 459, 920 N.W.2d 868 (2018). See, Neb. Rev. Stat. § 27-801 (Reissue 2016) ; State v. Baker , 280 Neb. 752, 789 N.W.2d 702 (2010). Generally, hearsay is inadmissible except as provided by a recognized exception to the rule against hearsay. State v. Williams, supra . See Neb. Rev. Stat. §§ 27-802 through 27-804 (Reissue 2016).
One such exception is the business records exception. See § 27-803(5)(b).
The party seeking to admit a business record under § 27-803(5)(a) bears the burden of establishing foundation under a three-part test. O’Brien v. Cessna Aircraft Co. , 298 Neb. 109, 903 N.W.2d 432 (2017). First, the proponent must establish that the activity recorded is of a type that regularly occurs in the course of the business’ day-to-day activities. Id . Second, the proponent must establish that the record was made as part of a regular business practice at or near the time of the event recorded. Id . Third, the proponent must authenticate the record by a custodian or other qualified witness. Id .
In the present case, the State laid sufficient foundation for the admission of exhibit 3 under the hearsay rule’s exception for business records. First, the State showed through Brewer’s testimony that Cole’s high school regularly maintains similar communication logs for all its students and that these records are updated when school personnel communicate with students or their parents. Second, Brewer testified that the record is updated by school personnel at the time when they make contact. Third, the State authenticated the record through Brewer, who was a custodian or qualified witness because she testified that she was one of a handful of people who had access to the communication log, could edit the log, and could print the log. As such, the State laid a proper foundation for the communication log’s admission under the business records exception to the hearsay rule.
The concern underlying Cole’s objection seems to be that...
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