State v. Samantha H. (In re Interest Noah C.)
| Decision Date | 02 October 2018 |
| Docket Number | No. A-18-059.,A-18-059. |
| Parties | IN RE INTEREST OF NOAH C., A CHILD UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, v. SAMANTHA H., APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the County Court for Cheyenne County: RANDIN R. ROLAND, Judge. Affirmed.
Donald J.B. Miller, Cheyenne County Public Defender, for appellant.
Jonathon T. Stellar, Chief Deputy Cheyenne County Attorney, for appellee.
Audrey M. Elliott, guardian ad litem.
Noah C. was removed from his mother, Samantha H., because there were concerns about his safety. Samantha appeals from the December 19, 2017, order of the county court for Cheyenne County, sitting as a juvenile court, which allowed the continued detention of Noah pending adjudication. Samantha also appeals the juvenile court's January 17, 2018, order adjudicating Noah pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016). We affirm both orders.
Samantha is the biological mother of Noah (born in 2013). Because Noah's father, Donald M., is not part of this appeal, he will only be discussed as necessary.
From late October 2016 to January 2017, the Nebraska Department of Health and Human Services (DHHS) worked with Samantha and Noah in an alternative response case (a voluntary case), because Samantha sought help to deal with Noah's behaviors. That case ended upon Samantha's request.
In late November and early December 2017, DHHS became concerned about Noah's welfare after Samantha told numerous persons that she could not handle his behaviors and that she needed a break.
On December 6, 2017, the State filed a petition alleging that Noah was a child within the meaning of § 43-247(3)(a) for the reason that he was in a situation injurious to his health or morals. The State further alleged that Samantha had expressed frustration that she was having difficulty parenting Noah. Also on December 6, the State requested an ex parte temporary custody order, which was granted by the court that same day. Pursuant to the order, DHHS was granted the temporary care, custody, and control of Noah, and placement was not to be in his parental home.
On December 18, 2017, Samantha filed for a motion for change of placement, requesting that Noah be placed with her "pending the adjudication in this case." After a hearing on December 19, Samantha's motion for change of placement was denied and Noah continued to be placed in the temporary custody of DHHS.
A contested adjudication hearing was held on January 8, 16, and 17, 2018. In its journal entry and order filed on January 17, the juvenile court determined that Noah was a child as defined by § 43-247(3)(a) and adjudicated him accordingly.
Samantha timely filed her notice of appeal on January 18, 2018; she appeals from the order of December 19, 2017, and the order of January 17, 2018.
We note that in their joint brief, the State and the guardian ad litem claim that Samantha did not preserve her right to appeal the December 19, 2017, placement order "because she did not file her notice of appeal within thirty days of the court's order." Brief for appellee at 18. (When referring to arguments made on appeal, the State and the guardian ad litem will collectively be referred to as the State.) However, the State relies on the date Samantha's notice of appeal was filed with the Clerk of the Supreme Court (January 22, 2018), rather than the date the notice of appeal was filed with the clerk of the county court for Cheyenne County (January 18). See Neb. Ct. R. App. P. § 2-101(A) (). Samantha has timely appealed from the December 19 order.
Samantha assigns, summarized and reordered, that the juvenile court erred in (1) granting the motion for ex parte custody, (2) admitting certain evidence at the detention hearing, (3) denying her motion for change of placement and approving the continued detention of Noah pending adjudication, (4) authorizing two witnesses to appear and testify by videoconference at the adjudication hearing over her objections, (5) admitting certain evidence at the adjudication hearing, and (6) finding sufficient evidence that Noah was a child as described under § 43-247(3)(a).
An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently of the juvenile court's findings. In re Interest of Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).
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 such discretion a factor in determining admissibility. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. In re Interest of B.R. et al., 270 Neb. 685, 708 N.W.2d 586 (2005).
Samantha argues that the juvenile court erred in granting the State's motion for ex parte custody. She also argues that the juvenile court erred in approving DHHS' removal and continued detention of Noah pending adjudication and in denying her motion for change of placement.
Although an ex parte temporary detention order keeping a juvenile's custody from his or her parent for a short period of time is not final, one entered under § 43-247(3)(a) and Neb. Rev. Stat. § 43-254 (Reissue 1988), after a hearing which continues to keep a juvenile's custody from the parent pending an adjudication hearing to determine whether the juvenile is neglected, is final and thus appealable.
In re Interest of R.R., 239 Neb. 250, 252-53, 475 N.W.2d 518, 520 (1991). See, also, In re Interest of Chloe P., 21 Neb. App. 456, 840 N.W.2d 549 (2013) (). Because the ex parte temporary custody order was not a final order, we cannot consider Samantha's argument that the juvenile court erred in granting the ex parte order. However, the juvenile court's order of December 19, 2017, which, following a hearing, denied Samantha's motion for placement and continued the detention of Noah pending adjudication was a final, appealable order.
Neb. Rev. Stat. § 43-254 (Reissue 2016) provides, in relevant part:
Pending the adjudication of any case, . . . if it appears that the need for placement or further detention exists, the juvenile may be (1) placed or detained a reasonable period of time on order of the court in the temporary custody of either the person having charge of the juvenile or some other suitable person, . . . [or] (5) placed in the temporary care and custody of the Department of Health and Human Services when it does not appear that there is any need for secure detention, . . .If a juvenile has been removed from his or her parent, guardian, or custodian pursuant to subdivision (2) of section 43-248 [], the court may enter an order continuing detention or placement upon a written determination that continuation of the juvenile in his or her home would be contrary to the health, safety, or welfare of such juvenile and that reasonable efforts were made to preserve and reunify the family if required under section 43-283.01.
Continued detention pending adjudication is not permitted under the Nebraska Juvenile Code unless the State can establish by a preponderance of the evidence at an adversarial hearing that such detention is necessary for the welfare of the juvenile. In re Interest of Anthony G., 255 Neb. 442, 586 N.W.2d 427 (1998). In analyzing this question, the issue is whether allowing Noah to live with Samantha is contrary to his welfare.
Before summarizing the testimony presented at the continued detention hearing, we first note that Samantha contends the juvenile court erred in admitting certain evidence at the detention hearing. At a hearing to determine who shall have custody of a juvenile pending an adjudication, Neb. Rev. Stat. § 43-283 (Reissue 2016) applies, and relaxed rules of evidence may be followed. See In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved of on other grounds, O'Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 (1998). See, also, § 43-283 (). In circumstances whereunder relaxed rules of evidence may be employed, due process requires that the proceedings be fundamentally fair. In re Interest of R.G., supra. In determining whether admission or exclusion of particular evidence would violate fundamental due process, the Nebraska Evidence Rules serve as a guidepost in that determination. In re Interest of Floyd B., 254 Neb. 443, 577 N.W.2d 535 (1998). We will note Samantha's objections at issue in the relevant portions of the witness testimony.
Mindy Estrada is the family advocate for Head Start, where Noah attended preschool. Estrada testified that at Head Start, Noah was "a typical preschooler, four-year-old" and there were no behaviors she would consider "out of norm." Samantha called Estrada on November 29, 2017, asking for services and referrals because Samantha could not handle Noah and his behaviors (he was...
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