State v. Abigail G. (In re Interest Vladimir G.)
| Citation | 306 Neb. 127,944 N.W.2d 309 |
| Decision Date | 12 June 2020 |
| Docket Number | No. S-19-645.,S-19-645. |
| Parties | IN RE Interest of VLADIMIR G., a child under 18 years of age. State of Nebraska, appellee, v. Abigail G., appellant. |
| Court | Supreme Court of Nebraska |
Amy L. Patras, North Platte, of Crites, Shaffer, Connealy, Watson, Patras & Watson, P.C., L.L.O., for appellant.
Joe W. Stecher, Deputy Sioux County Attorney, for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Abigail G. appeals the order of the county court for Sioux County, sitting as a juvenile court, which adjudicated her son, Vladimir G., to be a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). Abigail claims, inter alia, that the court erred when it required her to testify despite her invocation of her Fifth Amendment rights. We conclude that although Abigail could invoke her Fifth Amendment privilege in this adjudication, any error on the part of the court in requiring her testimony was not reversible error. We further conclude that there was sufficient evidence to support the adjudication. We therefore affirm the county court's order of adjudication.
The State filed a petition alleging that Vladimir, born in July 2016, was a child within the meaning of § 43-247(3)(a) on the basis that he "lack[ed] proper parental care by reason of the fault or habits of his parent, guardian, or custodian" or that he was "a juvenile who is in [a] situation dangerous to life or limb or injurious to [his] health." The petition was prompted when in March 2018, Vladimir was examined in a hospital and was found to have suffered injuries including abusive head trauma
, a large abrasion to the back described as "rug burn," bone fractures, and multiple bruises throughout his face and body.
Vladimir's mother, Abigail, told a law enforcement officer that the injuries described above had all occurred while Vladimir was under the care of her boyfriend, Thomas Joseph Boyd. Prior to the hospital visit in March 2018, on or about February 24, Abigail had taken Vladimir to a hospital for an examination because she was concerned that Boyd might have sexually abused Vladimir. In the February examination, the doctor did not find evidence of sexual abuse but told Abigail that there were not always physical signs of sexual abuse. After the February examination, Abigail told medical and law enforcement personnel that she would no longer allow Boyd to have contact with Vladimir. After the examination in March that disclosed the injuries set forth above, Abigail told medical personnel that the injuries had occurred after the February hospital visit and that they had occurred while Vladimir was under the care of Boyd.
The adjudication hearing was held on March 6, 2019. The first witness called by the State at the hearing was Abigail. Abigail objected to testifying based on Fifth Amendment grounds. The State argued that there was nothing it would be questioning Abigail about that would incriminate her; the State further argued that because there were relevant matters to which Abigail could testify that would not incriminate her, she could not make a blanket objection to testifying and instead would need to "plead[ ] the Fifth" as to specific questions. The court overruled Abigail's objection after it cited Neb. Rev. Stat. § 43-279(1)(c) (Reissue 2016), which requires the court in an adjudication to inform the parties "[o]f the privilege against self-incrimination by advising the juvenile, parent, guardian, or custodian that the juvenile may remain silent concerning the charges against the juvenile and that anything said may be used against the juvenile." The court reasoned that the focus of the statute was the juvenile's, and not a parent's, right to remain silent. Prior to Abigail's testimony, rather than requiring Abigail to object to specific questions, the State stipulated that Abigail had a continuing objection to testifying on Fifth Amendment grounds.
Thereafter, Abigail generally testified to the effect that, notwithstanding her suspicions in February 2018 about Boyd's conduct regarding Vladimir, she continued to leave Vladimir in Boyd's care during March when all the serious injuries occurred. Abigail testified regarding three specific injuries that occurred in March while Vladimir was in Boyd's care and what Boyd told her after she noticed the injuries. Abigail testified that Boyd told her that a bruise around Vladimir's eye was caused when Vladimir threw a tantrum and hit himself on a bedpost; that a rug burn was caused when Boyd's son, who is near in age to Vladimir, dragged Vladimir across the carpet; and that an injury to Vladimir's arm occurred when Vladimir and Boyd's sons were playing together and Boyd's dog got involved in the play and knocked Vladimir over and into a piece of furniture. On cross-examination, Abigail testified that she believed the reasons given by Boyd regarding how the injuries occurred and that she did not believe that Boyd had caused the injuries.
Abigail also testified regarding the concerns that prompted her to seek the medical examination in February 2018. She testified that she was concerned Vladimir had been sexually abused and that she thought Boyd might have been involved because Boyd "was up in the middle of the night with" Vladimir and Boyd's two sons. She testified that she talked with medical and law enforcement personnel regarding her concerns in February 2018, but she did not recall that anyone had told her not to allow Boyd to have contact with Vladimir; nor did she recall telling the law enforcement officer that she would not allow Boyd to have further contact with Vladimir. Abigail also testified that at the time of the hearing, she continued to have a sexual relationship with Boyd; Abigail had objected to the question that prompted this testimony on the basis, in addition to the continuing Fifth Amendment objection, that the petition for adjudication had not given her notice that her continuing relationship with Boyd was a basis for the adjudication.
At the conclusion of Abigail's testimony, the court indicated that it had given further thought to its earlier ruling regarding Abigail's invocation of her Fifth Amendment rights. The court referred to Neb. Rev. Stat. § 43-279.01 (Reissue 2016), which provides in relevant part:
The court stated that based on its reading of § 43-279.01, parents in an adjudication hearing might have a Fifth Amendment or at least a statutory right to remain silent in response to questions that might implicate them in a crime. The court, however, doubted that any of Abigail's testimony was of that sort, and the State, represented by the county attorney, stated it did not intend to file charges against Abigail and that it "would grant any immunity for that testimony for any charges." Abigail moved to strike her testimony on Fifth Amendment grounds and argued that the county attorney's offer of immunity was insufficient because other authorities could prosecute Abigail and because immunity should have been granted prior to her testimony. The court overruled Abigail's motion to strike her testimony and stated: "I think that if anybody tries to prosecute [Abigail], that there would be a defense based on both what [the county attorney] said and what I — how I ruled today on the bench that — that she does have that right [to remain silent]."
Other evidence at the hearing included the testimony of the sheriff's deputy who had spoken with Abigail in February 2018 regarding her concern that Boyd had sexually abused Vladimir. The deputy testified, inter alia, that at that time, Abigail told him that she would never again allow Boyd to have contact with Vladimir. He also testified that he did not further investigate Abigail's concerns because the medical examination did not reveal evidence of sexual abuse and because Abigail had stated that she would no longer allow Boyd to have contact with Vladimir.
Prior to Abigail's testimony, the court had received into evidence two depositions offered by the State—depositions of a doctor and of a nurse who had examined and treated Vladimir in March 2018. The State described the depositions as being offered by "joint motion," and Abigail did not object to admission of the depositions. Both the doctor and the nurse agreed that Vladimir's injuries were as alleged in the petition for adjudication. The doctor stated that he suspected nonaccidental trauma based on "multiple fractures on different sides of the body" in combination with "the whole story with all of his injuries." The nurse stated in her deposition that Vladimir's injuries were consistent with abuse and that she suspected abuse based on the "constellation" of injuries. The nurse also stated, contrary to Abigail's testimony at the hearing, that she did not think Boyd had caused the injuries and that in March 2018, Abigail had stated to the nurse that she had not talked to Boyd since the injuries to Vladimir, that she did not want Boyd around, and that she had concerns that Boyd had hurt Vladimir.
After the adjudication hearing, the county court filed an order in which it found Vladimir to be a child within the meaning of § 43-247(3)(a). Based on the testimony and depositions received at the hearing, the court found that the injuries to Vladimir would not have occurred in the absence of abuse or neglect, that the injuries occurred when Vladimir was with Boyd, and that the injuries occurred when Vladimir was under the control of...
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