Interest of R.A., In re

• Decision Date: 03 April 1987
• Docket Number: No. 86-475,86-475
• Citation: 225 Neb. 157,403 N.W.2d 357
• Parties: In re Interest of R.A. and V.A., Children Under 18 Years of Age. STATE of Nebraska, Appellee, v. R.A., Jr., Appellant.
• Court: Nebraska Supreme Court

Page 357

403 N.W.2d 357

225 Neb. 157

In re Interest of R.A. and V.A., Children Under 18 Years of Age STATE of Nebraska, Appellee, v. R.A., Jr., Appellant.

No. 86-475.

Supreme Court of Nebraska.

April 3, 1987.

Syllabus by the Court

1. Juvenile Courts: Appeal and Error. The standard of review applicable to a juvenile proceeding under Neb.Rev.Stat. § 43-247 (Cum.Supp.1986) is de novo on the record.

2. Juvenile Courts: Appeal and Error. The findings of fact made by the juvenile court are accorded great weight because the court observed the parties and witnesses and could better judge their credibility.

3. Trial: Evidence: Hearsay: Appeal and Error. The determination as to the admissibility of an excited utterance generally rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.

4. Trial: Evidence: Hearsay. Spontaneity is the key factor in determining whether a statement falls within the excited utterance exception. To qualify as an excited utterance, generally, a statement must meet the following criteria: (1) There must have been a startling event; (2) the statement must relate to the event; and (3) the statement must have been made by the declarant while under the stress of the event.

5. Trial: Evidence: Hearsay: Minors. Generally, the common-law res gestae requirements that the statement be contemporaneous and spontaneous are relaxed where the statement is one made by a young victim of sexual abuse.

6. Juvenile Courts: Final Orders. Generally, a dispositional order made by a juvenile court is a final order.

7. Minors: Statutes: Juvenile Courts. The Nebraska Juvenile Code, Neb.Rev.Stat. §§ 43-245 to 43-2, 129 (Reissue 1984 & Cum.Supp.1986), must be liberally construed to accomplish its purpose of serving the best interests of the juveniles who fall within it.

8. Juvenile Courts. A juvenile court has broad discretion as to the disposition of those who fall within its jurisdiction.

9. Juvenile Courts. Juvenile courts have broad discretion to accomplish the purpose of serving the best interests of the children involved.

10. Juvenile Courts: Child Custody: Visitation. Psychiatric testing or psychological evaluations of a parent may be required to determine the best interests of children when issues of custody and visitation are presented.

11. Juvenile Courts. A juvenile court may, within its discretion, require parents to make reasonable efforts to rehabilitate themselves.

Randal B. Brown, Lincoln, for appellant.

Laurie J. Campbell, Deputy Lancaster County Atty., for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

BOSLAUGH, Justice.

R.A., Jr., appeals from the orders of the separate juvenile court of Lancaster County, Nebraska, which found his children to be neglected, limited his visitation, and required him to submit to a psychological evaluation.

The original petition in this proceeding was filed April 3, 1986, and alleged that V.A., a daughter born November 22, 1982, lacked proper parental care by reason of the faults and habits of the appellant. The petition further alleged that on or between September 1, 1985, and February 28, 1986, the appellant engaged in inappropriate sexual contact with his daughter. An amended petition filed April 17, 1986, contained the same allegations as to the daughter and further alleged that R.A., a son born January 1, 1980, was at risk due to the actions of his father.

At a hearing on April 17, 1986, the appellant denied the allegations of the amended petition. At the adjudication hearing on May 5, 1986, the son, who was 6 years old, testified that he saw his father "put his finger up in my sister's bottom." The child testified that the appellant inserted the fourth finger on his hand and that the incident occurred while the appellant was bathing the children. He further testified that his sister did not cry or scream when the incident occurred. He also testified that his father had never touched his private places, made him feel uncomfortable, or "hurt" him while bathing him. He further testified this incident was the only time he had seen his father touch the daughter in that manner.

The daughter, who was 3 years old at the time of the hearing, did not testify. Her mother was allowed to testify, over objection, as to the following statements made by the daughter approximately 5 minutes after the child had returned from a weekend visit with the appellant and was being bathed. While the child was standing up in the bathtub, she "stated that she had been hurt." The mother then asked, "In what way were you hurt?" and the daughter replied "her daddy had put his finger in there." The mother replied, "Well, [V.A.], you sure he just wasn't washing you and, you know, it might have been rubbed a little hard or something?" The girl replied, "No, it went up there." When the child was removed from the bathtub she indicated to her mother that the appellant had put his fingers in her vagina. The child was then taken to a physician, and Child Protective Services was informed.

The parents are separated and the children are in the custody of their mother. The mother testified the children had spent every other weekend with the appellant for approximately 2 years prior to this incident. The visitations were discontinued in December of 1985. The mother also testified that her daughter had suffered from frequent vaginal infections and that the appellant had been instructed as to appropriate bathing techniques, which included washing the vaginal area. She further testified that her daughter had never reported that anyone else had touched her in an inappropriate manner and neither child had ever indicated an unwillingness to be near the father.

The appellant objected to the admission of the child's statements, as reported by the mother, on the ground the statements were inadmissible hearsay. The trial court concluded the statements were admissible under the excited utterance exception to the hearsay rule contained in Neb.Rev.Stat. § 27-803(1) (Reissue 1985). The trial court stated:

[I]n looking at the matter of the excited utterance, the excited utterance must be gaged in relationship to what the incident was. Even as testified to here, there wasn't any physical harm done to the child. There was no tearing or that type thing as there was in State vs. Redfeather. You're talking about a three year old child. It's a matter here, a three year old child who comes home and within a short period of time is given a bath and who then relates the incident. As to what is the excited utterance so far as a three year old child is different than it would be for someone older. The circumstances are such that the matter would be considered an excited utterance for a child of that age in that circumstance.

Tim Domgard, a Lincoln police officer, testified that he spoke with the appellant on February 1, 1986, concerning the alleged sexual contact. The officer asked the appellant if he believed his daughter was telling the truth about the incident, and the father replied, "Yes." The officer stated that he was referring only to the alleged incident and had asked the appellant whether he had touched the child as she had alleged. The appellant's response was "something like: I don't know if I have. I guess what scares me is that I may have and it's too awful for me to remember and that I might have blocked it out, but then I would have to be crazy to do that. And I'm not crazy." The officer also testified that at one point the appellant stated, "I feel I did it," after stating that something must have happened because so many people had told him he had done it. The officer further testified the appellant stated he would not admit to inappropriate sexual contact with his daughter because that would be the most terrible thing he could do for his child. In addition, the officer stated the appellant reported one other incident in which he had had sexual thoughts or feelings about his daughter.

The appellant then presented his mother and counselor as witnesses. The appellant's mother testified she had often seen him interact with the children and thought he had a good relationship with them. The counselor testified that he had met with the appellant on approximately six occasions and that the appellant seemed anxious and depressed during that time. He further testified the appellant seemed confused "as to the reality of whether or not the incident alleged between himself and his daughter ever actually occurred."

After hearing the evidence summarized above, the trial court found the allegations in the amended petition to be true and determined the children lacked proper parental care due to the faults of the appellant, as defined by Neb.Rev.Stat. § 43-247(3)(a) (Cum.Supp.1986). The court based its findings on the direct evidence provided by the son's eyewitness testimony and the corroboration provided by the daughter's statements to her mother, the appellant's failure to deny the allegations, and his statement that he believed his daughter was telling the truth about the incident. The trial court commented that the children apparently loved their father and enjoyed their visits, making it unlikely their testimony was false.

Final disposition was continued pending the completion of a predispositional report by the Department of Social Services. In the interim, the court ordered that visitation between the appellant and the children be under supervision.

The disposition hearing was held May 28, 1986. The State presented a predispositional report, prepared by Child Protective Services, which contained the following recommendations: (1) that custody of the children remain with their mother; (2) that the father's visitation be supervised by Child Protective Services; (3) that the children participate in an educational program on sexual abuse; (4) that the children participate in any...