In Re Interest of WCO , 220 Neb. 417 ( 1985 )

Per Curiam.

The natural father of the child involved in this case appeals from an order entered by the separate juvenile court of Lancaster County, Nebraska, on November 14, 1984, in which the court found that W.C.O. was a child lacking proper parental care by reason of the faults and habits of his father, pursuant to Neb. Rev. Stat. § 43-247 (Cum. Supp. 1982), and from the order of disposition dated December 4, 1984, placing custody of the minor child with the natural mother. We affirm.

On September 28, 1984, a petition was filed in the separate juvenile court of Lancaster County, Nebraska, pursuant to § 43-247(3)(a), charging that by reason of the faults and habits of his father, W.C.O. was a minor child subject to the jurisdiction of the separate juvenile court.

On November 13,1984, an adjudication hearing was held by the separate juvenile court of Lancaster County, Nebraska, at which time evidence was adduced. The evidence disclosed that on September 5,1984, W.C.O.’s father was at home alone with W.C.O. and two boys for whom W.C.O’s mother was babysitting. W.C.O. was 17 months old at this time. While the mother was gone from the home, the father committed an act of fellatio on one of the children, a boy 4 years old. As a result of the incident, the father was charged with first degree sexual assault. Although the father denied that any such incident had occurred, there was testimony from two of the arresting officers that the father had confessed to them that the act had been committed. The separate juvenile court found that it did have jurisdiction over the minor child by reason of the child being a juvenile who lacked proper parental care by reason of the fault and habits of his parent, as provided in § 43-247(3)(a). Final disposition was continued until December 4,1984.

On December 4, 1984, a dispositional hearing was held, at which time the minor child, W.C.O., was placed in the custody of his mother. His father was ordered not to be alone with the child at any time. At the dispositional hearing a report prepared by Child Protective Services was offered into evidence. The report found that W.C.O. was at risk unless the father successfully completed a counseling program, and therefore recommended that the minor child remain in the custody of his mother and that his father obtain psychological evaluation by a therapist qualified and experienced in working with sexual abuse offenders.

The father appeals to this court, essentially alleging that the separate juvenile court erred in finding that the minor child was a child lacking in proper parental care by reason of the fault or habits of his father, because there was no evidence that the minor child was either aware of or affected by his father’s alleged inappropriate sexual contact with another child. We believe that the appellant misconceives the purpose and effect of the Nebraska Juvenile Code, Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Cum. Supp. 1982). Under the provisions of § 43-247 the juvenile court has jurisdiction of any juvenile “who lacks proper parental care by reason of the fault or habits of his parent.” The question that we must therefore address is whether a child lacks proper parental care by reason of the fault or habits of his parent if his parent has committed a sexually abusive act upon another minor child. The danger of permitting such a father to remain in a position where he may be alone with his own minor child should be obvious. It is not the intent or purpose of the juvenile code to require the separate juvenile court to wait until disaster has befallen a minor child before the court may acquire jurisdiction. If it is reasonable to assume that injury will occur absent action by the court, then the court may assume jurisdiction and act accordingly. In Jones v. State, 175 Neb. 711, 717, 123 N.W.2d 633, 637 (1963), we said: “ ‘Achild must in fact be dependent and neglected at the time proceedings are instituted to have it declared a neglected and dependent child, or it should be in danger of so becoming in the near future.’ ” (Emphasis supplied.) Furthermore, in Stewart v. McCauley, 178 Neb. 412, 415, 133 N.W.2d 921, 924 (1965), we noted: “The jurisdiction of the state arises out of the power that every sovereignty possesses as parens patriae to every child within its borders to determine the status and custody that will best meet its needs and wants ....” We went on to say in Stewart at 418, 133 N.W.2d at 925:

The juvenile court is a product of the solicitude of the law for the welfare of infants. Its powers and duties are described more or less in detail in our statutes, and because of their humanitarian and beneficient [sic] purpose, they should be liberally construed to the end that their manifest purpose may be effectuated to the fullest extent compatible with their terms.

The report filed by Child Protective Services at the dispositional hearing merely supports the juvenile court’s conclusion. The report makes clear that in the opinion of the agency the father poses a risk to the minor child and should not be permitted to be alone with the minor child unless and until psychological evaluation has been conducted and the treatment prescribed taken. While the State did not produce any evidence regarding the risk to the minor child at the adjudication hearing, the court could consider the fact that the father committed a sexual act upon a 4-year-old child and therefore was likely to commit a similar act upon his own minor child. As we noted in Mullikin v. Lutkehuse, 182 Neb. 132, 135, 153 N.W.2d 361, 364 (1967):

Under the evidence in this case, the fitness of the mother and grandmother is of such a nature as to require the removal of the child from their care and custody for the best interests of the child. The environment in which this little girl would be raised would be such as to risk the serious effects of an unmoral climate. The placing of the child where her surroundings, teaching, and care would be conducive to proper training, including the establishment of adequate physical, mental, and moral standards, is, as the trial court found, to the best interests of the child.

Even if the evidence adduced at the adjudication hearing was insufficient to establish that the child was in physical danger . from the father by reason of the father’s fault or habits, it was more than sufficient to establish that unless this problem was cured the child was likely to be raised in an immoral atmosphere in which, at a minimum, the child would be taught that such acts as performed by the father were not either immoral or illegal. The juvenile court was correct in assuming jurisdiction over the child and entering the temporary order. The judgment is affirmed.

Affirmed.