In re Interest of Anthony V

• Decision Date: 01 June 2004
• Docket Number: No. A-03-890.,A-03-890.
• Citation: 680 NW 2d 221,12 Neb. App. 567
• Parties: IN RE INTEREST OF ANTHONY V., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, v. KIRSTEN W., APPELLANT. IN RE INTEREST OF ANTHONY V.
• Court: Nebraska Court of Appeals

12 Neb. App. 567

680 NW 2d 221

IN RE INTEREST OF ANTHONY V., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE, v. KIRSTEN W., APPELLANT.

IN RE INTEREST OF ANTHONY V.

No. A-03-890.

Nebraska Court of Appeals.

Filed June 1, 2004.

Thomas C. Riley, Douglas County Public Defender, and Jeanine E. Creighton for appellant.

Stuart J. Dornan, Douglas County Attorney, and James M. Masteller for appellee.

SIEVERS and CASSEL, Judges.

CASSEL, Judge.

INTRODUCTION

Kirsten W. appeals from an order of the separate juvenile court of Douglas County terminating her parental rights to Anthony V. Kirsten asserts that the juvenile court erred in finding by clear and convincing evidence that Anthony comes within the meaning of Neb. Rev. Stat. § 43-292(2) and (10) (Reissue 1998) and in finding that termination of her parental rights serves Anthony's best interests. She also assigns that reasonable efforts to reunify her with Anthony were not undertaken. We affirm the decision of the juvenile court.

BACKGROUND

On January 24, 2003, the State filed a petition seeking to adjudicate Anthony under Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2002) and claiming that Kirsten, Anthony's mother, placed him in a situation dangerous to his life, limb, health, or morals. The petition specifically alleged that on or about November 1, 2002, Kirsten's other child, Brian V., died due to shaken baby syndrome, and that Kirsten admitted to shaking Brian shortly before his death. Although the petition also made allegations against Anthony's father, Jose V., this appeal concerns only the allegations against Kirsten.

At the same time the petition was filed, the State also moved for placement of temporary custody of Anthony with the Nebraska Department of Health and Human Services (DHHS), claiming existence of an immediate and urgent need for Anthony's protection. That same day, the trial court found exigent circumstances supporting an order for immediate custody and placed Anthony in the custody of DHHS, where custody remained throughout these proceedings.

The court held a detention hearing on February 3, 2003. The trial court continued Anthony's temporary custody with DHHS and denied Kirsten visitation until otherwise ordered.

On April 30, 2003, the State filed an amended petition, seeking termination of Kirsten's parental rights. The State repeated its initial allegations and further alleged that reasonable efforts to preserve and reunify the family were not required under Neb. Rev. Stat. § 43-283.01 (Reissue 1998) because Kirsten had committed first or second degree murder or voluntary manslaughter of Brian, that Anthony came within the meaning of § 43-292(2) because of neglect of the child or a sibling and within the meaning of § 43-292(10) because Kirsten had committed murder or voluntary manslaughter of Brian, and that termination of Kirsten's parental rights would be in Anthony's best interests. The petition also stated that Kirsten was incarcerated at the Douglas County Correctional Center.

At the adjudication hearing, James Hospodka, an employee of Cox Communications, testified that at approximately 8:40 or 8:50 a.m. on November 1, 2002, he went to Kirsten's residence to install digital cable television service. Kirsten answered the door and told Hospodka that she could not speak well and her face was swollen because she had had dental surgery the preceding day. Hospodka observed that Kirsten's face did appear to be swollen and that Kirsten slurred her words. Hospodka testified that when Kirsten answered the door, she held in her left arm an infant who appeared to be less than 1 year old. Another child, about 2 years old, stood next to Kirsten.

Hospodka testified that he told Kirsten he would go outside for a minute to turn on the cable television service and then return and that Kirsten appeared to understand. Hospodka asked Kirsten where she wanted the cable service installed. Kirsten pointed to the entertainment center. Hospodka then left to turn on the cable service. When he returned, the infant was lying in front of the couch on top of one or more blankets and a sleeping bag and Kirsten was resting on the couch. Hospodka thought the infant was awake. The infant appeared to be about to cry but could not; instead, the infant perhaps let out a squeak. Kirsten remained on the couch and did not pick up the infant. The older child played with toys close to the couch, became rowdy, and hammered something with a toy for a couple of minutes. Kirsten told the child to calm down. According to Hospodka, Kirsten redirected the child without exhibiting any frustration. Hospodka testified that Kirsten moved once from the couch, without any apparent difficulty, to get a larger television from the bedroom and that he took a smaller television into the bedroom from the living room. Hospodka reported that Kirsten moved only that one time during his visit, and he admitted that Kirsten appeared "pretty spaced out."

Hospodka testified that after he finished the installation, he asked Kirsten if she had any questions. Kirsten replied that she did not. Kirsten signed a work order for Cox Communications, and Hospodka departed. Hospodka testified that he spent approximately 45 minutes at the residence.

Hospodka testified that he did not see anyone other than Kirsten and the two children inside the apartment. He claimed that the children were present throughout his entire installation of the cable television service and that he observed no bruises or marks on either child.

Robert Wiley, an Omaha police officer, testified that on the afternoon of November 1, 2002, he responded to a call to go to Creighton University Medical Center to investigate Brian's death. When Wiley arrived at the hospital, the doctors and nurses were performing cardiopulmonary resuscitation on Brian. Wiley spoke to Kirsten shortly after he arrived. Kirsten appeared to be upset and was crying and difficult to understand, but she appeared to understand his questions. Wiley testified Kirsten told him that she had laid Brian down for a nap at 11 a.m. and that she had lain down for a nap at 11:15 a.m. At 1:15 p.m., Kirsten awoke from her nap and fed Anthony. At 1:30 p.m., she checked on Brian. Kirsten said she found Brian lying face down on his bed, not moving and unresponsive. Kirsten told Wiley that she immediately took Brian to the hospital. Wiley testified that when he interviewed Kirsten, Kirsten was wearing pajamas, and that it did not appear that she had taken time to dress before coming to the hospital. Kirsten informed Wiley that Brian had been having problems with phlegm. During the interview, Kirsten asked Wiley more than once about Brian's condition.

Dr. Charles Denton, an emergency room physician board certified in emergency and internal medicine, testified that he had worked as an emergency room physician for 25 years. He testified that on November 1, 2002, at approximately 1:30 p.m., Brian arrived in the emergency room of Creighton University Medical Center and appeared lifeless. Denton stated that Brian's extremities had a purplish or bluish color secondary to lack of oxygen. Brian was not breathing or moving and had casts on both legs. He bore no outward signs of trauma. The emergency team initiated cardiopulmonary resuscitation on Brian. Because Brian lacked any heartbeat, the emergency team administered intubation and medicines. The team ceased efforts to revive Brian at 2:07 p.m., and Denton pronounced Brian dead.

Denton testified that at some point, he looked in Brian's ears, checking for blood behind the eardrums which would indicate trauma. Denton looked in at least one of Brian's eyes and saw some hemorrhages in the retina. Denton also felt Brian's head to detect swelling of the spine. Denton testified that other than the hemorrhages in the retina, he did not observe anything abnormal. He attributed significance to the hemorrhages in the eye because that could indicate the baby had been shaken or suffered some kind of trauma. Denton suspected Brian had died of shaken baby syndrome. Denton admitted that he had not received training specifically regarding shaken baby syndrome, though it may have been discussed at an annual meeting.

Denton testified that in the emergency room, Brian's rectal temperature was 93 degrees, compared to a normal temperature between 95 and 100.3 degrees for a healthy infant. Denton opined that because Brian's temperature was low, whatever happened had occurred more than 5 or 10 minutes before he was found. He concluded that Brian's temperature showed that Brian had been dead for more than 10 or 15 minutes before he arrived at the emergency room. Denton admitted that he could not state the rate at which body temperature decreases following death.

Denton testified that he had questioned Kirsten about the circumstances which led her to bring Brian to the hospital. Kirsten told him that Brian was placed prone for about 2 hours for a nap and that when she checked on him, he was not breathing. Denton testified that while cardiopulmonary resuscitation was being administered to Brian, the emergency team asked Kirsten questions about Brian's medical history. Kirsten reported that Brian had been born prematurely and that casts were placed on his feet to correct clubfoot. Kirsten also reported that Brian had been diagnosed with hypocalcemia (abnormally low concentration of calcium in the blood) of prematurity.

Dr. Jerry Wilson Jones, a licensed physician since 1958 specializing in pathology, testified that he was board certified in anatomic and clinical pathology, with a subspecialty board certification in forensic pathology, which focuses on both natural and violent deaths. Jones testified that he had performed over 7,000 autopsies and approximately 12 autopsies on victims of shaken baby syndrome.

Jones performed an autopsy on Brian at approximately 8 a.m. on November 2, 2002. He observed no external injuries other than the casts on...