873 N.W.2d 1
Neb. Ct. App.2015Background
- On Jan 3, 2012, 1-year-old Zachary, attending daycare in Lacy and Daniel S.’s home, arrived alert but was found unresponsive and later died; autopsy showed an older healing skull fracture and recent, fatal brain trauma.
- State removed Gavin (born 2009) and Jordan (born 2011) and filed petitions alleging the children were at risk under Neb. Rev. Stat. § 43-247(3)(a) and moved to terminate Lacy’s and Daniel’s parental rights under § 43-292(7) and (9).
- Medical testimony: Drs. Bowen, Davis, and Haney testified Zachary died from recent inflicted blunt-force head trauma occurring while in the parents’ care; Dr. Ophoven (defense) attributed death to complications of the earlier skull fracture.
- The juvenile court found the State’s experts credible, rejected Dr. Ophoven’s opinion, adjudicated the children under § 43-247(3)(a), and terminated parental rights under § 43-292(7) and (9), finding termination in the children’s best interests.
- On appeal, parents challenged (1) admission of a neuropathologist’s report (exhibit 53) authored by a deceased doctor, (2) sufficiency of evidence for adjudication under § 43-247(3)(a), and (3) sufficiency for termination of parental rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of exhibit 53 (Brumback report) | Lacy & Daniel: report inadmissible hearsay; denial of confrontation/cross-examination rights | State: Brumback collaborated on testing; Bowen relied on report; trial court properly admitted portions | Court assumed, without deciding, report may have been improperly admitted but declined to consider it on appeal and found any error harmless since decision rests on other experts’ testimony |
| Whether § 43-292(9) requires prior juvenile adjudication | Lacy & Daniel: termination needed prior adjudication under § 43-247 | State: § 43-292(9) addresses parental conduct and does not require prior adjudication | Court held § 43-292(9) does not require a prior adjudication order; prior adjudication unnecessary for termination under (9) |
| Sufficiency of evidence to terminate under § 43-292(9) (aggravated circumstances) | Lacy & Daniel: evidence conflicted; expert defense theory raised reasonable doubt about causation and parental responsibility | State: clear and convincing evidence showed Zachary sustained fatal abuse while in their care, parents provided no explanation and delayed/failed to obtain care | Court affirmed: de novo review gives weight to trial court’s credibility findings; found clear and convincing evidence that parents subjected Zachary to aggravated circumstances |
| Best interests of the children | Lacy & Daniel: they are loving, involved parents; termination not necessary absent proof they harmed their own children | State: parents’ failure to explain or accept responsibility, concealment and failure to seek care create ongoing risk | Court held termination is in children’s best interests—no reasonable alternative or rehabilitative plan could eliminate risk; permanency required |
Key Cases Cited
- In re Interest of Jagger L., 270 Neb. 828 (standard of review for juvenile cases; clear-and-convincing burden)
- In re Interest of Joshua M. et al., 256 Neb. 596 (statutory interpretation that certain § 43-292 subsections do not require prior adjudication)
- In re Interest of J.S., A.C., and C.S., 227 Neb. 251 (impermissible evidence in juvenile termination not considered on appeal)
- In re Interest of Crystal C., 12 Neb. App. 458 (termination severs parental rights; severity of remedy)
- In re Interest of Kantril P. & Chenelle P., 257 Neb. 450 (termination as last resort; best-interests analysis)
- In re Interest of J.H., 242 Neb. 906 (parental termination principles cited regarding last-resort nature)