State v. Lucia V. (In re Interest of Luz P.)

• Decision Date: 10 February 2017
• Docket Number: Nos. S-16-534 through S-16-538.,s. S-16-534 through S-16-538.
• Citation: 295 Neb. 814,891 N.W.2d 651
• Parties: IN RE INTEREST OF LUZ P. et al., children under 18 years of age. State of Nebraska, appellee, v. Lucia V., appellant.
• Court: Nebraska Supreme Court

295 Neb. 814

891 N.W.2d 651

IN RE INTEREST OF LUZ P. et al., children under 18 years of age.

State of Nebraska, appellee,

v.Lucia V., appellant.

Nos. S-16-534 through S-16-538.

Supreme Court of Nebraska.

Filed February 10, 2017.

D. Brandon Brinegar, of Ross, Schroeder & George, L.L.C., Kearney, for appellant.

Mandi J. Amy, DeputyBuffalo County Attorney, for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Wright, J.

NATURE OF CASE

To perfect an appeal, a party must file a notice of appeal within 30 days from the final order or judgment.Without timely filed notices of appeal, this court is without appellate jurisdiction and must dismiss these consolidated appeals.

In the case at bar, the trial court issued an order nunc pro tunc purporting to vacate its prior order, which had terminated the appellant's parental rights to her five children.The intent of the court's nunc pro tunc order was to vacate the prior order and then reinstate the order in its entirety for the express purpose of extending the appellant's time to appeal.The appellant filed notices of appeal within 30 days of the order nunc pro tunc but more than 30 days after the original order.Without evidence in the record that a party did not receive notice of the prior order, an order vacating and reinstating a prior order cannot be used to extend the time for appeal.In the absence of timely filed notices of appeal, this court is without jurisdiction.We dismiss the appeals for lack of jurisdiction.

BACKGROUND

The appellant, Lucia V., lived in Kearney, Nebraska, with her children Luz P., Jonathan V., Esvin C., and Lindsey C., and her boyfriend, Enrique C. Enrique is the father of Esvin, Lindsey, and Eva D. (who was born after Lucia was incarcerated).Jonathan's father lives near Kearney; Luz' father is deceased.

Lucia came to the United States when Luz was 2 years old.Lucia left Luz and Luz' older brother behind in Guatemala with relatives who raised them.Luz was 14 when she moved to Nebraska from Guatemala to live with Lucia, Enrique, and her younger siblings.Jonathan, Esvin, and Lindsey were born in the United States after Lucia moved from Guatemala.

A few months after Luz arrived from Guatemala, Enrique began making sexual advances toward her.He would do this on Saturdays while Lucia was at work.In the first three instances, Luz was able to get away from Enrique and avoid his advances.Eventually, Enrique raped her on several different occasions.

At some point in October 2014, Lucia became suspicious when she noticed how Enrique was looking at Luz.Lucia eventually convinced Luz to tell her of the sexual assaults.Lucia told Luz that she did not believe her.Later, Lucia made Luz sit down with her and Enrique and repeat the allegations.Enrique denied sexually assaulting Luz.Lucia became angry and hit Luz with a mop handle.She called Luz a liar, called her other names, and continued to hit her with the mop.According to Luz, "[Lucia] said I was a dog, a bitch, and she said that she cursed the day that I was born."Lucia also pulled Luz to the ground by her hair, which pulled out some of her hair.The next day, Lucia slapped and beat Luz with a bent wire clothes hanger.

The day after this assault, Lucia threw Luz down to the floor, forcibly pulled off Luz' pants and underwear, and sat on her.She then forcibly spread Luz' legs and put her fingers into Luz' vagina.According to Luz, Lucia was calling her a bitch and Enrique was watching and laughing.Lucia stated that she put her fingers in Luz' vagina "only to find out if indeed she had been having sexual relations with him."She stated she did this "[b]ecause that is the custom ... in Guatemala, for what we do with girls who are out of control."

After this assault, Luz stayed at home that night.Luz said the next morning, Lucia woke her up and "threw [her] out of the house."Lucia stated that Luz left on her own after Lucia went to work that morning.Lucia did not call the police when Luz left home and did not return.

Shortly afterward, Lucia went to Luz' high school in order to "unenroll" her.The school officials had a difficult time understanding what she wanted and convinced her to come back the following week when an interpreter could be present.When Lucia came back, she spoke to Pat McLaughlin, the resource police officer.Lucia told McLaughlin that "[her] daughter had run away, did not want to come to school, [and] was being uncooperative at home."She told McLaughlin that Luz had "tried to have sex with" her husband, Enrique.McLaughlin completed a runaway report and communicated with other officers about the search for Luz.Lucia did not disclose that she had a brother who lived in Kearney, but instead said that Luz did not have any family and that she did not know where Luz would go.Lucia did not contact the police department to check on the status of its search for Luz, nor did she provide any additional information.

McLaughlin and another officer attempted to follow up with Lucia to gain more information to aid their search for Luz.McLaughlin contacted Kearney Public Schools and learned that Luz had a sibling, Jonathan, who was enrolled in the school system.McLaughlin spoke to a school guidance counselor at Jonathan's elementary school.The counselor spoke with Jonathan and learned that he had an uncle that lived in Kearney.Lucia subsequently disclosed to the police that she had a brother in Kearney and led police to his residence.

Upon arriving at Lucia's brother's residence, the officers learned that Luz had been staying there for 2 weeks.During this time, she did not attend school.Lucia had never checked if Luz was staying there.

Luz was interviewed at a child advocacy center in Kearney.Lucia was also interviewed by a police officer.Lucia told the officer that "she believed her daughter was addicted to sex."After the interview, while she was still in the interview room, Lucia was overheard speaking on her cell phone, " ‘if the police talk to you, tell them that you went to Guatemala to see your mother for heart surgery.’ "Lucia had previously told the police that Enrique had gone to Guatemala to see his mother.She later admitted that she had called Enrique while at the advocacy center.

After Luz and Lucia had been separately interviewed, they were allowed to sit together in the interview room.Luz told Lucia that the only thing that she told law enforcement was that Enrique had put his arm around her.Lucia was unhappy and told Luz that she should have never said that Enrique put his arm around her but should have said that he never touched her.Lucia told Luz that she should take the blame for what happened with Enrique, saying, " ‘You need to take responsibility because they won't do anything to you.You're a minor.He is an adult.He will get in trouble.’ "Lucia later admitted that she instructed Luz to lie and that she was trying to protect Enrique.Lucia also said that she had Jonathan trained not to talk to law enforcement.

Lucia told Luz that if she had to undergo a physical examination and was asked why she was so big "down there," that she should say that she uses a sexual "apparatus" and that Lucia got it for her.

After the police heard Lucia coaching Luz on what to say to police and talking on a cell phone with whom they believed to be Enrique, they seized her cell phone and obtained arrest and search warrants for Lucia and her home.A search of the residence disclosed a bent wire hanger and a "Swiffer [broom]" that police believed were used to beat Luz.They found hair in the trash can which was believed to have been pulled from Luz' head by Lucia.Lucia admitted that the broom was used to beat Luz.

Enrique was believed to have fled the country.Lucia testified that she last saw Enrique the day she beat Luz.Police discovered that he had bought an airplane ticket and left Kearney on October 24, 2014.

Luz, Jonathan, Esvin, and Lindsey were taken by the Department of Health and Human Services(DHHS) and placed with a foster parent who had been providing childcare for the children.

Lucia was charged with tampering with a witness, a Class IV felony; felony child abuse, a Class IIIA felony; and first degree sexual assault of a child, a Class IB felony.Lucia pled no contest to tampering with a witness and felony child abuse.The sexual assault charge was dismissed.She was sentenced to 4 months' imprisonment on the witness tampering conviction and 1 year's imprisonment on the felony child abuse conviction.She was released in August 2015 and subsequently deported to Guatemala.

The State filed petitions seeking to adjudicate the children under Neb. Rev. Stat. § 43-247(3)(a)(Supp. 2013).In exchange for amending the petitions to state the children "lack[ed] proper parental care through no fault or habits of his or her parent," Lucia did not contest the petitions.The court heard testimony and determined that Luz, Jonathan, Esvin, and Lindsey lacked proper parental care under § 43-247(3)(a).

In April 2015, while Lucia was incarcerated, she gave birth to a daughter, Eva.After she was born, Eva was placed in the same foster home as her siblings.The State filed a petition alleging that Eva was under § 43-247(3)(a) as a juvenile "who lacks proper parental care by reason of the fault or habits of his or her parent," based on Lucia's abuse and obstruction of the sexual abuse investigation, leading to her incarceration.Lucia pled no contest to this allegation.

In August 2015, the State filed motions for termination of Lucia's parental rights to all five children.The statutory basis for the termination under Neb. Rev. Stat. § 43-292(Reissue 2016) were subsections (1), (2), and (9)—abandonment, neglect, and aggravated circumstances, respectively.The petitions also alleged that termination of Lucia's parental rights was in the best interests of the children.

In December 2015, the court held a hearing on the State's motions to terminate Lucia's...