In re Interest of Kane L. & Carter L. , 299 Neb. 834 ( 2018 )


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    IN RE INTEREST OF KANE L. & CARTER L.
    Cite as 
    299 Neb. 834
    In   re I nterest of
    K ane L., a child
    18 years of age.
    under
    State of Nebraska, appellee, v. A ngela L.,
    appellant, and Scott L., appellee.
    In re Interest of Carter L., a child
    under 18 years of age.
    State of Nebraska, appellant and cross-appellee,
    v. A ngela L., appellee and cross-appellant.
    ___ N.W.2d ___
    Filed May 4, 2018.    Nos. S-17-720, S-17-775.
    1.	 Juvenile Courts: Appeal and Error. An appellate court reviews juve-
    nile cases de novo on the record and reaches a conclusion independently
    of the juvenile court’s findings. When the evidence is in conflict,
    however, an appellate court may give weight to the fact that the lower
    court observed the witnesses and accepted one version of the facts over
    the other.
    2.	 Constitutional Law: Due Process. The determination of whether
    the procedures afforded to an individual comport with constitutional
    requirements for due process presents a question of law.
    3.	 Trial: Evidence: Appeal and Error. An appellate court reviews the
    trial court’s conclusions with regard to evidentiary foundation for an
    abuse of discretion.
    4.	 ____: ____: ____. Because authentication rulings are necessarily fact
    specific, a trial court has discretion to determine whether evidence has
    been properly authenticated. An appellate court reviews a trial court’s
    ruling on authentication for abuse of discretion.
    5.	 Parental Rights: Due Process. The fundamental liberty interest of natu-
    ral parents in the care, custody, and management of their child is afforded
    due process protection. Such due process rights include the right to be
    free from an unreasonable delay in providing a parent a meaningful
    hearing after the entry of an ex parte temporary custody order.
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    IN RE INTEREST OF KANE L. & CARTER L.
    Cite as 
    299 Neb. 834
    6.	 Criminal Law: Trial: Evidence. Where objects pass through several
    hands before being produced in court, it is necessary to establish a com-
    plete chain of evidence, tracing the possession of the object or article
    to the final custodian; and if one link in the chain is missing, the object
    may not be introduced in evidence.
    7.	 ____: ____: ____. Objects which relate to or explain the issues or form
    a part of a transaction are admissible in evidence only when duly identi-
    fied and shown to be in substantially the same condition as at the time
    in issue.
    8.	 Trial: Evidence: Appeal and Error. Whether there is sufficient founda-
    tion to admit physical evidence is determined on a case-by-case basis.
    An appellate court’s review concerning the admissibility of such evi-
    dence is for an abuse of discretion.
    9.	 Parental Rights. The purpose of the adjudication phase is to protect the
    interests of the child.
    10.	 Juvenile Courts: Jurisdiction: Parental Rights: Proof. The Nebraska
    Juvenile Code does not require the separate juvenile court to wait until
    disaster has befallen a minor child before the court may acquire jurisdic-
    tion. While the State need not prove that the child has actually suffered
    physical harm, Nebraska case law is clear that at a minimum, the State
    must establish that without intervention, there is a definite risk of future
    harm. The State must prove such allegations by a preponderance of
    the evidence.
    Appeals from the County Court for Buffalo County: John
    P. R ademacher, Judge. Judgment in No. S-17-720 affirmed.
    Judgment in No. S-17-775 reversed, and cause remanded for
    further proceedings.
    Elizabeth J. Chrisp, of Jacobsen, Orr, Lindstrom & Holbrook,
    P.C., L.L.O., for Angela L., appellant in No. S-17-720 and
    appellee in No. S-17-775.
    Mandi J. Amy, Deputy Buffalo County Attorney, for State
    of Nebraska, appellee in No. S-17-720 and appellant in No.
    S-17-775.
    Vikki S. Stamm, of Stamm, Romero & Associates, P.C.,
    L.L.O., guardian ad litem.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
    JJ., and Strong, District Judge.
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    IN RE INTEREST OF KANE L. & CARTER L.
    Cite as 
    299 Neb. 834
    Heavican, C.J.
    INTRODUCTION
    Kane L. and Carter L. were removed from the family home
    as a result of methamphetamine use by their mother, Angela
    L., and their father, Scott L. The county court for Buffalo
    County, sitting as a juvenile court, adjudicated Kane but not
    Carter. In separate appeals, Angela challenged Kane’s adju-
    dication and certain rulings of the juvenile court with respect
    to the petition seeking to adjudicate Carter. The State, acting
    through the Buffalo County Attorney’s office, appealed the
    juvenile court’s failure to adjudicate Carter. We affirm the
    juvenile court’s order adjudicating Kane and reverse the juve-
    nile court’s order declining to adjudicate Carter, and remand
    the cause for further proceedings.
    BACKGROUND
    Angela is the mother of Carter, born in September 2000, and
    Kane, born in September 2008. Carter and Kane’s biological
    father is Scott. Scott and Angela are also biological parents to
    Lily L. Lily was 19 years old at the time of these proceedings.
    As such, Lily is not involved in these juvenile court actions,
    although placement of Kane and Carter was with her for a
    period of time.
    In January 2017, Angela gave birth to another boy. Scott
    is not the biological father of this child. Angela sought to uti-
    lize Nebraska’s “Safe Haven” law1 with regard to the baby;
    this child’s placement is also not at issue in these juvenile
    court actions.
    Angela provided a urine sample at the time of her admission
    to the hospital prior to the baby’s birth, and that sample tested
    positive for drug use. Later, the baby’s “cord blood” tested
    positive for methamphetamine, amphetamine, “THC,” and oxy-
    codone. Law enforcement was then contacted, because of the
    following: Angela wished to relinquish the baby, the positive
    1
    Neb. Rev. Stat. § 29-121 (Reissue 2016).
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    IN RE INTEREST OF KANE L. & CARTER L.
    Cite as 
    299 Neb. 834
    drug screen, and the hospital social worker’s knowledge that
    Angela had other children at home.
    The Department of Health and Human Services and law
    enforcement first contacted Angela. She admitted to using
    methamphetamine and marijuana during her pregnancy, includ-
    ing methamphetamine 3 to 4 days before giving birth and mari-
    juana within a day or so of giving birth. Angela insisted that
    she had never used drugs in the family home and that Scott did
    not use methamphetamine. Angela declined to give permission
    for Kane to submit to drug testing.
    The Department of Health and Human Services and law
    enforcement then made contact with Scott and Kane. At this
    time, Carter was on juvenile probation and was at a juvenile
    detention center. Scott denied methamphetamine use and, after
    a few days, gave consent for Kane to be tested.
    Toenail testing was done on Kane, and an initial positive
    result for both THC and methamphetamine was returned. The
    sample was insufficient to test further for the presence of
    THC, but the presence of methamphetamine was confirmed
    by a second test. The presence of methamphetamine, but not
    amphetamine, suggests that Kane’s exposure was environmen-
    tal in nature.
    Scott was eventually tested. His saliva test was initially
    returned as a presumptive positive for methamphetamine.
    Scott indicated surprise at this result and stated that he had not
    used methamphetamine in a week. Scott later indicated that
    he had not used in the last 4 days. This presumptive positive
    test was sent in for laboratory testing and eventually tested
    negative. There was evidence in the record that the sample
    was initially returned to the organization that gathered the
    sample, because the wrong type of vial had been used, and
    that the organization had to “buy new vials and put the saliva
    into the vial and resend it.” Further testing was apparently not
    sought at the time, because Scott had admitted to methamphet-
    amine use.
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    IN RE INTEREST OF KANE L. & CARTER L.
    Cite as 
    299 Neb. 834
    As a result of the safety concerns presented by both Angela’s
    and Scott’s use of methamphetamine, arrangements were made
    to place Kane and Carter, who had just returned to the family
    home, with Lily. The children were later moved to a placement
    with their maternal grandparents.
    The county filed a motion for temporary custody that was
    granted ex parte on February 17, 2017. The petition to adjudi-
    cate was filed on February 21—the next business day follow-
    ing the Presidents Day court holiday. The record indicates that
    at least Scott was present when Kane and Carter were removed.
    The record further indicates that Scott and Angela had input
    into the initial placement of the children with their oldest
    daughter, Lily, and had visitation with the children throughout,
    initially in the family home.
    Over the next few days, before the first scheduled hear-
    ing on March 8, 2017, counsel was appointed for Scott and
    Angela. On March 1, both Scott and Angela filed answers,
    through counsel, denying the allegations set forth in the peti-
    tion to adjudicate.
    While the first hearing was scheduled to be held March 8,
    2017, it was actually held on March 1. The journal entry for
    that hearing reflects that Scott and Angela were present with-
    out counsel and were shown a rights advisory video. No bill
    of exceptions for that hearing is in the record. A later journal
    entry, entered June 21, indicated that a protective custody and
    detention hearing had been scheduled for March 1 as well, but
    that this hearing was waived by Scott’s and Angela’s respec-
    tive counsel as counsel sought to conduct more discovery and
    indicated Scott or Angela would motion for such a hearing if
    it was desired.
    Various motions were filed by all parties, and multiple
    hearings were held in the time leading up to the first adjudica-
    tion hearing held May 15, 2017, and eventual adjudication on
    June 30. There is no bill of exceptions in the appellate record
    for those hearings.
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    IN RE INTEREST OF KANE L. & CARTER L.
    Cite as 
    299 Neb. 834
    Angela appeals from Kane’s adjudication. The county attor-
    ney appeals and Angela cross-appeals from the order denying
    the petition to adjudicate Carter. Scott filed a notice of appeal
    from Kane’s adjudication, but did not further participate.
    ASSIGNMENTS OF ERROR
    Appeal in Case No. S-17-720,
    In re Interest of Kane L.
    On appeal, Angela assigns that the juvenile court erred in
    (1) not ordering a protective custody and detention hearing,
    thus denying Angela due process; (2) admitting evidence of
    the baby’s cord blood test and Kane’s toenail test, because the
    county failed to establish a foundation for those results; and (3)
    finding sufficient evidence to support adjudication.
    Appeal in Case No. S-17-775,
    In re Interest of Carter L.
    On appeal, the county attorney assigns that the juvenile
    court erred in not adjudicating Carter.
    On cross-appeal, Angela assigns that the juvenile court
    erred in (1) not ordering a protective custody and detention
    hearing, thus denying Angela due process, and (2) admitting
    evidence of the baby’s cord blood test and Kane’s toenail
    test, because the county failed to establish foundation for
    those results.
    STANDARD OF REVIEW
    [1] An appellate court reviews juvenile cases de novo on the
    record and reaches a conclusion independently of the juvenile
    court’s findings.2 When the evidence is in conflict, however, an
    appellate court may give weight to the fact that the lower court
    observed the witnesses and accepted one version of the facts
    over the other.3
    2
    In re Interest of Carmelo G., 
    296 Neb. 805
    , 
    896 N.W.2d 902
    (2017).
    3
    In re Interest of LeVanta S., 
    295 Neb. 151
    , 
    887 N.W.2d 502
    (2016).
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    IN RE INTEREST OF KANE L. & CARTER L.
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    299 Neb. 834
    [2] The determination of whether the procedures afforded
    to an individual comport with constitutional requirements for
    due process presents a question of law.4
    [3] An appellate court reviews the trial court’s conclu-
    sions with regard to evidentiary foundation for an abuse of
    discretion.5
    [4] Because authentication rulings are necessarily fact spe-
    cific, a trial court has discretion to determine whether evidence
    has been properly authenticated.6 An appellate court reviews a
    trial court’s ruling on authentication for abuse of discretion.7
    ANALYSIS
    Pretrial Hearing.
    Angela contends, on both appeal and cross-appeal, that her
    due process rights were violated when a protective custody
    and detention hearing was not held.
    [5] The proper starting point for legal analysis when the
    State involves itself in family relations is always the funda-
    mental constitutional rights of a parent.8 The interest of parents
    in the care, custody, and control of their children is perhaps
    the oldest of the fundamental liberty interests recognized by
    the U.S. Supreme Court.9 The fundamental liberty interest of
    natural parents in the care, custody, and management of their
    child is afforded due process protection.10 Such due proc­ess
    rights include the right to be free from an unreasonable delay
    in providing a parent a meaningful hearing after the entry of
    an ex parte temporary custody order.11
    4
    In re Interest of Joseph S. et al., 
    288 Neb. 463
    , 
    849 N.W.2d 468
    (2014).
    5
    Midland Properties v. Wells Fargo, 
    296 Neb. 407
    , 
    893 N.W.2d 460
    (2017).
    6
    State v. Grant, 
    293 Neb. 163
    , 
    876 N.W.2d 639
    (2016).
    7
    Id.
    8
    In re Interest of Carmelo G., supra note 2.
    9
    
    Id. 10 Id.
    11
    See 
    id. - 841
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    IN RE INTEREST OF KANE L. & CARTER L.
    Cite as 
    299 Neb. 834
    Neb. Rev. Stat. § 43-248(2) (Reissue 2016) allows the State
    to take a juvenile into custody without a warrant or order of
    the court when it appears the juvenile “is seriously endangered
    in his or her surroundings and immediate removal appears
    to be necessary for the juvenile’s protection.” However, the
    parent retains a liberty interest in the continuous custody of
    his or her child.12 An ex parte order authorizing temporary
    custody with the Department of Health and Human Services
    is permitted because of its short duration and the requirement
    of further action by the State before custody can be contin-
    ued.13 But “‘the State may not, in exercising its parens patriae
    interest, unreasonably delay in notifying a parent that the
    State has taken emergency action regarding that parent’s child
    nor unreasonably delay in providing the parent a meaningful
    hearing.’”14 Therefore, following the issuance of an ex parte
    order for temporary immediate custody, “‘[a] prompt deten-
    tion hearing is required in order to protect the parent against
    the risk of an erroneous deprivation of his or her paren-
    tal interests.’”15
    In In re Interest of R.G.,16 we recognized that parents have
    a due process right to be free from an unreasonable delay in
    providing the parents a meaningful hearing after an ex parte
    order for immediate custody is filed. We concluded that the
    mother’s due process rights were not violated by a 14-day
    delay between the entry of an ex parte order and that of a
    detention order when she was given an opportunity to be
    heard at the detention hearing and was allowed to visit her
    children in the interim, but cautioned that this 14-day delay
    12
    
    Id. 13 Id.
    14
    
    Id. at 813-14,
    896 N.W.2d at 908 (emphasis omitted).
    15
    
    Id. at 814,
    896 N.W.2d at 908.
    16
    In re Interest of R.G., 
    238 Neb. 405
    , 
    470 N.W.2d 780
    (1991), disapproved
    on other grounds, O’Connor v. Kaufman, 
    255 Neb. 120
    , 
    582 N.W.2d 350
          (1998).
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    between the ex parte order and detention hearing was “on the
    brink of unreasonableness.”17
    In In re Interest of Carmelo G.,18 we held that a delay of
    8 months between an ex parte order and one following a
    protective custody hearing violated a mother’s due process
    rights, even though the mother met with her caseworker dur-
    ing that time, was represented by counsel, and various hear-
    ings were held and continuances granted with no objection by
    her counsel.
    In this case, the motion for temporary custody was granted
    ex parte on February 17, 2017. The petition to adjudicate was
    filed on February 21—the next business day following the
    Presidents Day court holiday. The record shows that at least
    Scott was present when Kane and Carter were removed and
    that Scott and Angela had input into the initial placement of
    the children with their oldest daughter, Lily, and had visitation
    with the children throughout, initially in the family home.
    Over the next few days before the first scheduled hearing on
    March 8, 2017, counsel was appointed for Scott and Angela.
    On March 1, both Scott and Angela filed answers through
    counsel denying the allegations set forth in the petition to
    adjudicate.
    While the first hearing was scheduled for March 8, 2017, the
    record shows that it was actually held on March 1. The jour-
    nal entry for that hearing reflects that Scott and Angela were
    present without counsel and shown a rights advisory video.
    No bill of exceptions for that hearing is in the record. A later
    journal entry, entered on June 21, indicated that a protective
    custody and detention hearing had been scheduled for March
    1 as well, but that it was waived by counsel, who sought to
    conduct more discovery and would motion for such a hearing
    if it was desired.
    17
    
    Id. at 423,
    470 N.W.2d at 792.
    18
    In re Interest of Carmelo G., supra note 2.
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    IN RE INTEREST OF KANE L. & CARTER L.
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    299 Neb. 834
    Various motions were filed by all parties and multiple
    hearings held in the time leading up to the first adjudication
    hearing on May 15, 2017, and eventual adjudication on June
    30. There is no bill of exceptions in the record for those hear-
    ings, but from the journal entries following those hearings, it
    does not appear that detention or custody was at issue in any
    of them.
    On these facts, we find no due process violation. The record
    shows that Angela was almost immediately appointed counsel
    and that counsel entered a denial of the allegations in the peti-
    tion within a few days of being appointed. A March 1, 2017,
    journal entry indicates that Angela was informed of all of
    her rights, including the right to the hearing she now argues
    she did not receive. A later journal entry, entered on June 21,
    indicates that Angela waived her right to such a hearing. There
    is no indication from the record before us that Angela ever
    sought any further hearing. Nor does Angela deny that the June
    21 journal entry accurately sets forth the events surrounding
    that March 1 hearing.
    The cases cited by Angela in support of her conclusion that
    she was denied due process are inapplicable. In In re Interest
    of Carmelo G., the mother clearly sought a detention hearing,
    and while one was held, it took approximately 7 months and
    five separate hearings to receive all of the evidence, and an
    additional 49 days for the court to issue its detention order fol-
    lowing the receipt of evidence. In this case, the only evidence
    in the record was that both Scott and Angela were offered a
    detention hearing on March 1, 2017, but waived the hearing
    and never sought another one. There is no merit to this assign-
    ment of error.
    Foundation for Cord Blood
    and Toenail Tests.
    Angela argues that the juvenile court erred in admitting
    the results from the cord blood and toenail tests, because the
    county did not establish proper foundation for the testing.
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    IN RE INTEREST OF KANE L. & CARTER L.
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    299 Neb. 834
    Specifically, Angela notes that the county did not establish a
    chain of custody for the cord blood and toenail tests. We note,
    as did the district court, that Angela does not argue that her
    Sixth Amendment right to confrontation was violated with
    regard to the admission of these test results.
    [6-8] Where objects pass through several hands before being
    produced in court, it is necessary to establish a complete chain
    of evidence, tracing the possession of the object or article to
    the final custodian; and if one link in the chain is missing,
    the object may not be introduced in evidence.19 Objects which
    relate to or explain the issues or form a part of a transaction are
    admissible in evidence only when duly identified and shown to
    be in substantially the same condition as at the time in issue.20
    It must be shown to the satisfaction of the trial court that no
    substantial change has taken place in an exhibit so as to render
    it misleading.21 Important in determining the chain of custody
    are the nature of the evidence, the circumstances surrounding
    its preservation and custody, and the likelihood of intermed-
    dlers tampering with the object.22 Whether there is sufficient
    foundation to admit physical evidence is determined on a case-
    by-case basis.23 Our review concerning the admissibility of
    such evidence is for an abuse of discretion.24
    With respect to the toenail test, Angela argues that while the
    person who collected the sample and the director of the labora-
    tory that did the testing both testified, there was no testimony
    from the individual who actually conducted the test, and that
    such is insufficient to show foundation for the admissibility of
    the results. We disagree.
    19
    State v. Glazebrook, 
    282 Neb. 412
    , 
    803 N.W.2d 767
    (2011).
    20
    
    Id. 21 Id.
    22
    
    Id. 23 Id.
    24
    See 
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    The individual who collected the sample testified at the
    hearing as to the procedures she followed when collecting the
    toenail sample. That individual indicated that she packaged the
    sample properly and mailed it to the testing laboratory. And
    the director of that laboratory testified as to the procedures
    followed at the laboratory, including the receipt of the sample
    and its testing. Given this testimony, we cannot conclude that
    the juvenile court abused its discretion in determining that “no
    substantial change ha[d] taken place in an exhibit so as to ren-
    der [the results] misleading”25 and in admitting the results.
    There is no merit to Angela’s contentions regarding the toe-
    nail testing.
    With respect to the cord blood test, Angela contends that the
    doctor who ordered the test testified, but no one testified to
    the collection of the sample or to the test procedure itself. We
    need not address this assertion, because even assuming that the
    evidence establishing the chain of custody for the cord blood
    was insufficient, the admissibility of those results, on these
    facts, was not reversible error.
    The cord blood test results were relevant to show that
    Angela had used drugs, notably methamphetamine. Angela’s
    hospital drug screen was positive, and she admitted to the use
    of methamphetamine. As such, any error in admitting the posi-
    tive cord blood test results was harmless.
    Error in Adjudicating Kane.
    Angela also assigns that the juvenile court erred in adjudi-
    cating Kane. She contends that the county failed to show an
    evidentiary nexus between the use of methamphetamine and a
    risk of harm that would support adjudication.
    To obtain jurisdiction over a juvenile at the adjudication
    stage, the court’s only concern is whether the conditions in
    which the juvenile presently finds himself or herself fit within
    the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue
    25
    See 
    id. at 431,
    803 N.W.2d at 783.
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    2016).26 Section 43-247(3)(a) outlines the basis for the juvenile
    court’s jurisdiction and grants exclusive jurisdiction over any
    juvenile “who lacks proper parental care by reason of the fault
    or habits of his or her parent, guardian, or custodian.”
    [9,10] The purpose of the adjudication phase is to protect
    the interests of the child.27 The Nebraska Juvenile Code does
    not require the separate juvenile court to wait until disaster has
    befallen a minor child before the court may acquire jurisdic-
    tion.28 While the State need not prove that the child has actu-
    ally suffered physical harm, Nebraska case law is clear that at
    a minimum, the State must establish that without intervention,
    there is a definite risk of future harm.29 The State must prove
    such allegations by a preponderance of the evidence.30
    The results of Kane’s toenail testing show that Kane has
    been environmentally exposed to methamphetamine. This sug-
    gests that either Scott or Angela, or both, have used the
    drug around Kane. Several witnesses specifically testified that
    Scott’s and Angela’s use of methamphetamine was a safety
    concern. This was sufficient to create the nexus that Angela
    claims is missing.
    The State has proved that Kane is a child under § 43-247(3)(a)
    because of his parents’ methamphetamine use. This creates a
    safety concern for Kane’s being in the family home and sug-
    gests that Kane should be removed from parental placement
    and custody until the situation is safe for Kane to return.
    There is no merit to this assignment of error.
    Error in Not Adjudicating Carter.
    The county assigns, in its appeal from the juvenile court’s
    failure to adjudicate Carter, that it was error to not adjudicate
    26
    In re Interest of Justine J. et al., 
    286 Neb. 250
    , 
    835 N.W.2d 674
    (2013).
    27
    
    Id. 28 Id.
    29
    
    Id. 30 See
    id.
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    IN RE INTEREST OF KANE L. & CARTER L.
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    Carter, because he was exposed to the same threat of present
    harm as Kane.
    It is true, as the juvenile court noted, that Carter was in a
    detention center during the events immediately leading up to
    the adjudication in this case. But Carter returned shortly before
    the children were removed from the home. The concern leading
    up to that removal and later adjudication was that it was unsafe
    for the children to be in the home at that time and into the
    future. The fact that Carter was not in the home in the imme-
    diate past has no bearing on whether he would be exposed to
    harm in Scott and Angela’s care going forward.
    We further note that there is testimony from law enforce-
    ment at the hearings in these cases that Carter was placed
    on probation in part because of positive drug screens of his
    own. Given that the reason for adjudication is alleged to be
    parental drug use, such testimony further supports Carter’s
    adjudication.
    The State must establish that without intervention, there is
    a definite risk of future harm; on these facts as established by
    the State, it has met that burden. We therefore conclude that
    the juvenile court erred in not adjudicating Carter.
    CONCLUSION
    In case No. S-17-720, the decision of the juvenile court
    adjudicating Kane is affirmed. In case No. S-17-775, the
    decision not adjudicating Carter is reversed and the cause is
    remanded for further proceedings.
    Judgment in No. S-17-720 affirmed.
    Judgment in No. S-17-775 reversed, and cause
    remanded for further proceedings.