In re Interest of Sloane O. ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
In re I nterest of Sloane O., a child
under 18 years of age.
State of Nebraska, appellee, v.
Christopher O., appellant.
State of Nebraska, appellee, v.
Sabrina O., appellant.
___ N.W.2d ___
Filed September 25, 2015. Nos. S-15-012, S-15-074.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently 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. Rules of the Supreme Court: Appeal and Error. Neb. Ct. R. App. P.
§ 2-109(D)(1)(e) (rev. 2014) requires a separate “assignments of error”
section stating the assigned errors apart from the arguments in a brief.
In the absence of such assignments of error, an appellate court may pro-
ceed as though the appellant has failed to file a brief or, alternatively,
may examine the proceedings for plain error.
3. Parental Rights. The right of parents to maintain custody of their child
is a natural right, subject only to the paramount interest which the public
has in the protection of the rights of the child.
4. Due Process. The concept of due process embodies the notion of funda-
mental fairness and defies precise definition.
5. Parental Rights: Due Process: Appeal and Error. In deciding due
proc­ess requirements in a particular case, an appellate court must
weigh the interest of the parent, the interest of the State, and the risk
of erroneous decision given the procedures in use. Due process is flex-
ible and calls for such procedural protections as the particular situa-
tion demands.
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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
6. Child Custody: Parental Rights. Under the parental preference princi-
ple, a parent’s natural right to the custody of his or her child trumps the
interests of strangers to the parent-child relationship and the preferences
of the child.
7. Constitutional Law: Child Custody: Parental Rights. Unless it has
been affirmatively shown that a biological or adoptive parent is unfit or
has forfeited his or her right to custody, the U.S. Constitution and sound
public policy protect a parent’s right to custody of his or her child.
8. Constitutional Law: Parental Rights: Presumptions. Absent circum-
stances which justify terminating a parent’s constitutionally protected
right to care for his or her child, due regard for the right requires that
a biological or adoptive parent be presumptively regarded as the proper
guardian for his or her child.
9. Juvenile Courts: Parental Rights. The parental preference doctrine is
applicable to an adjudicated child.
Appeals from the Separate Juvenile Court of Douglas
County: Douglas F. Johnson, Judge. Judgment in No. S-15-012
affirmed. Judgment in No. S-15-074 reversed, and cause
remanded for further proceedings.
Christopher O., pro se, in No. S-15-012.
Karen S. Nelson, of Schirber & Wagner, L.L.P., for appellant
in No. S-15-074.
Donald W. Kleine, Douglas County Attorney, Anthony
Clowe, and Kati Kilcoin, Senior Certified Law Student, for
appellee.
Beau G. Finley, of Finley & Kahler Law Firm, P.C., L.L.O.,
guardian ad litem.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Heavican, C.J.
I. INTRODUCTION
The juvenile court adjudicated Sloane O. as a child under
Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013) with respect
to allegations of abuse and neglect by her biological father,
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IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
Christopher O. It also denied a motion for custody filed by
Sloane’s mother, Sabrina O. Christopher appeals from the order
of adjudication. Sabrina appeals from the denial of the motion
for custody.
II. FACTUAL BACKGROUND
Both of the above-entitled appeals arise from the same set
of facts. On August 4, 2014, the State filed a petition seek-
ing to adjudicate Sloane as a child under § 43-247(3)(a). That
petition alleged that Christopher had used excessive discipline
toward Sloane, causing her injury, and that he had failed to
provide Sloane with proper parental care, support, and supervi-
sion, thus placing Sloane at risk for harm.
Also on August 4, 2014, the State filed an ex parte motion
for immediate custody of Sloane. That motion was granted.
A hearing was set for August 14. On August 12, counsel was
appointed for Christopher and a guardian ad litem was also
appointed. Several preadjudication hearings were held, includ-
ing the one on August 14. Adjudication was set for November
13 and December 17.
At the same time this case was proceeding, a separate pro-
bation docket for possession of a controlled substance involv-
ing Sloane was continuing. The juvenile court apparently pre-
sided over this probation docket as well. Our record does not
contain this docket, but there are references to it throughout
our record.
On October 9, 2014, Sabrina filed a motion for custody of
Sloane. Sabrina alleged that she had been physically separated
from Christopher “for some time” and that a complaint for dis-
solution of marriage had been filed on October 1, 2014. In her
motion, Sabrina indicated that she was fit to have custody of
Sloane and that custody should be placed with her, while the
Department of Health and Human Services (DHHS) should be
“reliev[ed] of custody.”
The adjudication hearing was held beginning November
13, 2014. Prior to the start of the hearing, the juvenile court
held a hearing on Sabrina’s motion for custody, with Sabrina
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IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
testifying that she was Sloane’s mother and expressing her
desire and fitness for custody. Also offered at this hearing was
Sloane’s birth certificate listing Sabrina as Sloane’s mother. In
her testimony, Sabrina acknowledged the separate docket and
indicated that she was willing to comply with it. Following
Sabrina’s testimony, the juvenile court moved to the adjudica-
tion portion of the proceedings.
Sloane was the first witness. She testified that on July 29,
2014, while at home in Ralston, Nebraska, a pill fell out of
her pocket. Christopher saw the pill and was able to identify
it as Percocet. Sloane testified that after identifying the pill,
Christopher hit her on the face with a closed fist and put a
pillow over her face. Apparently because he believed the pill
belonged to Sloane’s grandmother, Christopher then drove
Sloane to her grandparents’ home in Council Bluffs, Iowa.
While at her grandparents’ home, Sloane testified that she
asked Christopher what he would do if she killed herself and
that he “shrugged his shoulders.” Sloane then testified that
she pretended to drink a bottle of hand sanitizer. At that point,
according to Sloane, Christopher grabbed her by the hair and
threw her down on the floor, where he held her down with
his hand over her mouth and nose. Sloane testified that her
grandfather witnessed this incident. Sloane indicated that both
incidents caused her pain and injury. Photographs of various
injuries suffered by Sloane were admitted into evidence at
the hearing.
After leaving her grandparents’ home, Sloane testified that
Christopher drove her to the Ralston Police Department. Sloane
reported that she informed an officer of what had happened,
including her possession of the Percocet pill. Sloane was
charged with possession, taken to the Douglas County Youth
Center, and eventually released to Christopher’s home with an
ankle monitor.
Upon arriving at home, Sloane testified that she was chained
to the family’s couch with a bicycle chain. Sloane testified
that this was not the first time she had been chained to the
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IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
couch; previous incidents had apparently been witnessed by
Sabrina and Sloane’s grandparents. On July 30, 2014, Sloane
attended her court hearing. Afterward, Sloane was taken to
a child advocacy center and interviewed by April Carlson, a
DHHS caseworker.
Carlson testified. She indicated that she interviewed Sloane,
Christopher, Sabrina, Sloane’s brother, Sloane’s therapist, and
a nurse practitioner who had examined Sloane at the advocacy
center. Carlson also indicated that she had reviewed the juve-
nile intake form from the Douglas County Youth Center and
the report from the Ralston Police Department.
Carlson testified that Christopher admitted to her that he
had struck Sloane on the face on at least two separate occa-
sions. Carlson stated there were safety concerns with return-
ing Sloane to Christopher’s home and that she felt that Sloane
would be “unsafe in the care of [Christopher].”
Christopher testified. He stated that he did not strike Sloane
at any point after he discovered the pill, but instead drove
her to his parents’ home to determine the source of the pill.
According to Christopher, while at his parents’ home, Sloane
“said she wanted to kill herself” and screamed something
about “getting a knife.” Sloane then grabbed the hand sani-
tizer, “wedged herself between a dresser and a bookshelf,
and tried drinking it.” Christopher testified that he tried to
stop Sloane from drinking the hand sanitizer and that he tried
to remove her “out of the corner and out of the situation.”
Christopher said that he did not slap or punch Sloane. He later
clarified that after discovering the pill, he “popped” Sloane in
the mouth with two or three of his fingers, leaving no visible
mark on her.
Christopher further testified that he did not strike Sloane
when struggling over the hand sanitizer, but that he did
“wrestl[e] with her” to keep her from harm. Christopher
indicated that some of Sloane’s injuries were the result of
his restraining Sloane when she was trying to drink the
hand sanitizer.
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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
On cross-examination, Christopher was confronted with
statements he allegedly made to Carlson indicating that he
had hit Sloane. Christopher was asked whether he admitted to
Carlson that he had secured Sloane with a chain around her
ankle and whether he had said that doing so was “okay because
[he] had run it by the Council Bluffs Police Department.”
Christopher denied he made these statements.
Christopher stated on cross-examination that Sloane’s inju-
ries might have been caused by a group of girls who had beat
her up a few days before the pill incident. Christopher admit-
ted that he had not called the police about the beating because
Sloane hid it from him and because he did not know who
perpetrated the assault. Christopher indicated that there was a
video of the assault on a social media site and that he had told
Carlson’s supervisor about the incident.
Carlson was then called in rebuttal to testify that Christopher
told her during her investigation that he had struck Sloane
on the face on two occasions. In addition, Carlson testi-
fied that Christopher and Sabrina informed her that they had
chained Sloane to the couch and that the Council Bluffs Police
Department had allegedly told Christopher that this was appro-
priate. Finally, Carlson testified that the allegation regard-
ing the beating by other juveniles was something that would
have been passed along to her by her supervisor had it been
reported, but that Carlson never received such a report.
Following a hearing, the juvenile court entered an order on
December 3, 2014, adjudicating Sloane and placing her in the
temporary custody of DHHS with placement to exclude the
parental home. It is from this order that Christopher appeals.
On December 22, 2014, the juvenile court denied Sabrina’s
motion for custody. The court’s reasoning was somewhat
unclear in that it referenced Sloane’s ongoing probation docket
as a reason for not granting the motion, and it also indicated
that Sabrina had failed to intervene and was not a party to the
action. It is from this order that Sabrina appeals.
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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
III. ASSIGNMENTS OF ERROR
On appeal in case No. S-15-012, Christopher, pro se, does
not assign any error to the juvenile court.
On appeal in case No. S-15-074, Sabrina assigns, renum-
bered, restated, and summarized, that the juvenile court erred
in (1) concluding that a parent who has no allegations of
abuse or neglect must first intervene before filing a motion for
custody, (2) denying her motion for custody, (3) adjudicating
Sloane despite having not served Sabrina, and (4) adjudicat-
ing Sloane when there were no allegations of abuse or neglect
against Sabrina.
IV. STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions 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.1
V. ANALYSIS
1. Christopher’s A ppeal in
Case No. S-15-012
[2] Christopher’s brief assigns no error to the juvenile court,
thus violating this court’s rules requiring a separate “assign-
ments of error” section stating the assigned errors apart from
the arguments in a brief.2 Accordingly, we may proceed as
though Christopher failed to file a brief or, alternatively, may
examine the proceeding for plain error.3 In this case, we have
reviewed the record of the adjudication proceedings for plain
error. Finding none, we affirm the order of adjudication.
1
In re Interest of Nicole M., 287 Neb. 685, 844 N.W.2d 65 (2014).
2
Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014).
3
In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).
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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
2. Sabrina’s A ppeal in
Case No. S-15-074
(a) Issues Preserved for Appeal
Sabrina’s notice of appeal, filed January 21, 2015, spe-
cifically notes that Sabrina is appealing from the December 22,
2014, order of the juvenile court denying her motion for cus-
tody. This notice of appeal was timely, and we conclude that
Sabrina has timely appealed from the denial of custody order.
But Sabrina has not timely appealed from the juvenile
court’s adjudication order. As noted, Sabrina’s appeal was
filed on January 21, 2015, which is more than 30 days from
the December 3, 2014, entry of the adjudication order. As
such, we have jurisdiction over Sabrina’s assignments of
error relating to the custody order, but not as to the adjudica-
tion order.
(b) Motion to Intervene
In her first assignment of error, Sabrina assigns that the
juvenile court erred in finding that she had failed to intervene
in this action and thus was not a party to this case. Sabrina
argues that the definition of “[p]arties” as stated in Neb. Rev.
Stat. § 43-245(19) (Cum. Supp. 2014) includes the juvenile
and his or her parent and that she is a party because she is
Sloane’s parent.
In its order, the juvenile court did not explain why it
thought Sabrina was required to intervene. But at the hear-
ing on Sabrina’s motion, the county argued that interven-
tion was required by this court’s decision in In re Interest of
Kiana T.4 The county renews this argument on appeal and
suggests that Sabrina’s reliance on the definition of “parties”
from § 43-245(19) is premature, because Sloane had not yet
been adjudicated. Meanwhile, the guardian ad litem concedes
that there is tension between In re Interest of Kiana T. and
§ 43-245(19) and requests that we clarify that tension.
4
In re Interest of Kiana T., 262 Neb. 60, 628 N.W.2d 242 (2001).
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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
In In re Interest of Kiana T., the child was born with cocaine
in her system and the county attorney filed a petition alleging
that she was a child under § 43-247(3)(a). During a “deten-
tion” hearing, the mother’s attorney noted that the “‘natural
father [was] also present’” and “‘would like to be a party to
this petition.’”5 Eventually, a public defender was appointed
to represent the putative father, and the putative father was
represented by counsel at the adjudication hearing and at the
disposition hearing.
The guardian ad litem objected and sought genetic testing
to prove that the putative father was in fact the child’s biologi-
cal father (it does not appear that this testing was completed
prior to the appeal). The evidence showed that the child’s bio-
logical mother had not completed an affidavit of identity and
that the putative father had refused to sign any paperwork at
the time of the child’s birth.
On appeal, both the guardian ad litem and the county
attorney argued that the putative father should not have been
allowed to intervene without following the procedures set forth
in Neb. Rev. Stat. §§ 25-328 through 25-330 (Reissue 1995).
We agreed and held that the putative father was not entitled to
participate in dependency proceedings without properly inter-
vening in the matter.
In re Interest of Kiana T. is distinguishable from the appeal
before us. The evidence in that case did not establish that the
putative father was in fact the child’s biological father. He
was not listed on the birth certificate, no paternity tests had
been conducted, and the child’s biological mother did not
complete an affidavit of identity naming him as the biological
father. Thus, requiring the putative father to file for interven-
tion and prove that he had standing was appropriate under
the circumstances.
In this case, however, Sabrina produced a copy of Sloane’s
birth certificate identifying her as Sloane’s mother. Sabrina
5
Id. at 62, 628 N.W.2d at 243.
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IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
additionally testified that she was Sloane’s mother. Under
§ 43-245(19), Sabrina was a party.
The county’s argument that Sabrina’s reliance on § 43-245
was premature is without merit. That section defines terms
“[f]or purposes of the Nebraska Juvenile Code, unless the con-
text otherwise requires.” It would strain the interpretation of
the Nebraska Juvenile Code to conclude that a term in the code
does not mean what the code says it means simply because a
juvenile had not yet been formally adjudicated.
The juvenile court erred to the extent that it concluded
Sabrina needed to file a motion to intervene in this case.
(c) Denial of Motion
for Custody
Sabrina also argues that the juvenile court erred when it
denied her motion for custody. Sabrina argues that the parental
preference doctrine applies, that her due process rights were
violated, and that there was insufficient evidence to show that
it was in Sloane’s best interests to be placed outside of the
parental home.
Before addressing the merits of this claim, we recognize
that there is some dispute about whether the juvenile court
addressed the merits of Sabrina’s motion for custody. We find
that it did.
At the hearing, the juvenile court noted the intervention
issue. But the court also indicated that it could not award cus-
tody to Sabrina even if it wished to do so because of the ongo-
ing probation docket—an indication that it at least considered
the merits of Sabrina’s motion.
Further supporting the conclusion that the juvenile court
reached the merits of Sabrina’s motion is the fact that the
motion was denied. If the juvenile court had made its ultimate
determination based upon Sabrina’s failure to intervene, the
proper disposition of the motion would have been to dismiss
it for lack of standing. We conclude that the juvenile court did
address the merits of Sabrina’s motion.
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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
Sabrina’s appeal raises the issue of what persons or entities
are eligible to be awarded custody of a child when that child is
both (1) under the supervision of probation and under a dispo-
sitional order requiring out-of-home placement and (2) subject
to an abuse and neglect docket.
When a child is subject to a probation docket, the Office of
Probation Administration has placement and care responsibility
for the juvenile,6 but does not have custody of that juvenile.
Though not easily discernible from this record, at the time of
adjudication, the probation office had the care, responsibil-
ity, or supervision of Sloane. But pursuant to the ex parte and
temporary detention orders, Sloane was under the custody
of DHHS. If the abuse and neglect docket had not existed,
Sloane would have remained under her parents’ custody even
when undergoing treatment on the probation docket. We also
note that temporary custody of Sloane and her brother had
been awarded to Sabrina by the district court in Sabrina and
Christopher’s separate divorce action.
The question presented, then, is where custody of Sloane
should lie given the abuse and neglect docket. Under this abuse
and neglect docket, the juvenile court had authority pursuant to
Neb. Rev. Stat. § 43-284 (Cum. Supp. 2014) to leave Sloane’s
custody with her parents.
[3-5] Indeed, the right of parents to maintain custody of
their child is a natural right, subject only to the paramount
interest which the public has in the protection of the rights of
the child.7 The concept of due process embodies the notion of
fundamental fairness and defies precise definition.8 In decid-
ing due process requirements in a particular case, we must
weigh the interest of the parent, the interest of the State, and
the risk of erroneous decision given the procedures in use.9
6
Neb. Rev. Stat. § 43-297.01 (Cum. Supp. 2014).
7
In re Interest of Brian B. et al., 268 Neb. 870, 689 N.W.2d 184 (2004).
8
Id.
9
Id.
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IN RE INTEREST OF SLOANE O.
Cite as 291 Neb. 892
Due proc­ess is flexible and calls for such procedural protec-
tions as the particular situation demands.10 As Sloane’s mother,
due process considerations safeguard Sabrina’s right to cus-
tody of Sloane, subject only to the State’s interest in protect-
ing Sloane from harm.
[6-9] Under the parental preference principle, a parent’s nat-
ural right to the custody of his or her child trumps the interests
of strangers, including the State, to the parent-child relation-
ship and the preferences of the child.11 Therefore, unless it has
been affirmatively shown that a biological or adoptive parent
is unfit or has forfeited his or her right to custody, the U.S.
Constitution and sound public policy protect a parent’s right
to custody of his or her child.12 Absent circumstances which
justify terminating a parent’s constitutionally protected right
to care for his or her child, due regard for the right requires
that a biological or adoptive parent be presumptively regarded
as the proper guardian for his or her child.13 The doctrine is
applicable even to an adjudicated child.14
The Office of Probation Administration was not awarded,
nor could it have been awarded,15 custody of Sloane when she
was entrusted to its supervision. Nor was the juvenile court
required to give DHHS custody of Sloane by virtue of Sloane’s
adjudication on the abuse and neglect docket.16 The parental
preference doctrine generally protects Sabrina’s right to cus-
tody of Sloane.17
10
Id.
11
See In re Interest of Lakota Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 174
(2011).
12
See id.
13
Id.
14
See id.
15
See § 43-297.01.
16
See § 43-284.
17
See In re Interest of Lakota Z. & Jacob H., supra note 11.
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On these facts, it was error for the juvenile court to over-
look Sabrina’s status as Sloane’s mother in making its custody
determination. Sabrina was, and is, presumed to be the best
person to parent Sloane unless and until the State shows other-
wise. During the hearing on Sabrina’s motion, the State did not
present sufficient evidence to meet its burden.
However, the original hearing on Sabrina’s motion for cus-
tody was held in November 2014. As such, the record before
this court does not provide us with the most up-to-date infor-
mation regarding Sloane. This information is presumably avail-
able to the juvenile court and should be considered by that
court on remand. We reverse the juvenile court’s denial of
Sabrina’s motion for custody and remand the cause for fur-
ther proceedings.
In so remanding, we note that Sloane’s probation docket
does not affect Sabrina’s basic right to legal custody over
Sloane. But we emphasize that because the Office of Probation
Administration has “placement and care responsibility”18 over
Sloane, Sabrina’s right to custody is subject to that proba-
tion docket.
VI. CONCLUSION
The decision of the juvenile court in case No. S-15-012
is affirmed. The decision of the juvenile court in case No.
S-15-074 is reversed, and the cause remanded for further
proceedings.
Judgment in No. S-15-012 affirmed.
Judgment in No. S-15-074 reversed, and cause
remanded for further proceedings.
18
§ 43-297.01(1).