In re Interest of Emmanuel K. & Daniel K.D. ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF EMMANUEL K. & DANIEL K.D.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF EMMANUEL K. AND DANIEL K.D.,
CHILDREN UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
FELIPE H., APPELLANT.
Filed March 5, 2019. No. A-18-737.
Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge.
Affirmed.
B. Gail Steen, of Steen Law Office, for appellant.
Patrick F. Condon, Lancaster County Attorney, and Maureen E. Lamski for appellee.
RIEDMANN, BISHOP, and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Felipe H. appeals the order of the Lancaster County Separate Juvenile Court adjudicating
Emmanuel K. and Daniel K.D. as juveniles within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2016). He argues that, despite an instance of domestic violence, there was no evidence
that his children were placed at risk of harm. For the reasons stated below, we affirm.
STATEMENT OF FACTS
In June 2017, Felipe attacked his girlfriend, Nabon D., by biting her arm, repeatedly hitting
her in the face, and kneeing her in the back. He then drove away with 5-year-old Emmanuel. Felipe
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was arrested and charged with offenses including domestic assault. He later pled guilty to
disturbing the peace, driving on a suspended license, and failing to use a child passenger restraint.
In June 2018, a contested adjudication was held. Officer Sara Genoways testified that in
June 2017, she encountered Nabon when she responded to a report of a female screaming.
Genoways observed a bite mark on Nabon’s arm which Nabon attributed to Felipe. The police
report set forth that Emmanuel told the officers that Felipe hit Nabon.
Felipe testified that he assaulted Nabon but the children did not witness the assault. He
testified he was arrested, spent 4½ months in jail, and had not participated in domestic violence or
anger management classes. He claimed that he had been able to communicate and work with
Nabon, that their fighting was in the past, and that they had not had any verbal fights in 2018.
Cheyanne MacClain, the caseworker assigned to the case, testified that Felipe will verbally
cut off Nabon and tell her to say something else “very frequent[ly]” and “whenever they’re
together, there’s typically bickering.” She testified that in April 2018, Felipe requested visitation
with the children separate from Nabon’s visitation because of past arguments.
The court adjudicated Daniel and Emmanuel to be within the meaning of § 43-247(3)(a)
due to the fault or habits of Felipe. Felipe timely appeals.
ASSIGNMENT OF ERROR
Felipe assigns that the juvenile court erred by finding that his actions in June 2017 placed
the children at risk of harm in June 2018 without evidence that his actions impacted the children.
STANDARD OF REVIEW
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 Lilly S. & Vincent S., 298 Neb. 306,
903 N.W.2d 651 (2017).
ANALYSIS
Felipe argues that the State provided no evidence that the children were at risk of harm in
2018. He claims that the State’s reliance on the June 2017 domestic violence incident was
insufficient without a specific showing of its impact on the children.
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 § 43-247. In re Interest of Lilly S. & Vincent S., supra; In re Interest of
Justine J. et al., 286 Neb. 250, 835 N.W.2d 674 (2013). “‘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.”’”
In re Interest of Lilly S. & Vincent S., 298 Neb. at 315, 903 N.W.2d at 660, quoting In re Interest
of Justine J. et al., supra. 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. In re Interest of Lilly S. & Vincent S., supra; In
re Interest of Justine J. et al., supra. The State must prove such allegations by a preponderance of
the evidence. In re Interest of Lilly S. & Vincent S., supra; In re Interest of Justine J. et al., supra.
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Conceivably, a child need not witness domestic violence or be in the vicinity in order to be
placed at risk for harm. For example, if a child observed the subsequent results of domestic
violence or was otherwise made aware of the domestic violence, this could constitute a risk
for harm to the child. But to support adjudication, this court has required an evidentiary
nexus between a parent’s fault or habits and the risk for harm to the child.
In re Interest of Lilly S. & Vincent S., 298 Neb. at 316, 903 N.W.2d at 660-61.
Here, the children not only observed the subsequent results of domestic violence, but
Emmanuel reported to officers that Felipe hit Nabon. We find that this constituted a risk for harm
to the children. However, because this incident occurred about a year before the adjudication, the
State was also required to establish, at a minimum, that without intervention, there was a definite
risk of future harm. In re Interest of Lilly S. & Vincent S., supra. We find that there was a definite
risk of future harm because of the relative severity of the incident and the evidence that Felipe has
not rehabilitated himself. Felipe repeatedly hit Nabon’s face, bit her arm, and kneed her in the
back. Although he testified that the children did not witness the abuse, he admitted that the abuse
occurred while the children were home. Additionally, Felipe has not shown that he has
rehabilitated himself. He has not taken domestic violence or anger management classes nor
presented any verifiable evidence of rehabilitation efforts. While he described his relationship with
Nabon as much better, the caseworker testified that “whenever they’re together, there’s typically
bickering” and that, shortly before the adjudication, he asked to visit the children separately from
Nabon due to their past arguments. For these reasons, we find that the risk to the children continued
to the time of adjudication. The juvenile court did not need further evidence of harm to the children
to conclude they were at risk.
CONCLUSION
Based upon our de novo review of the record, we affirm the order of the juvenile court
adjudicating the minor children.
AFFIRMED.
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