Summary
reversing adjudication based upon father's possession of crack cocaine
Summary of this case from State v. Richard W. (In re Trinton W.)Opinion
No. A-09-953.
Filed April 27, 2010.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings.
2. Juvenile Courts: Proof. Generally, in an adjudication proceeding, the State need not prove that the juvenile has actually suffered harm but must establish that without intervention, there is a definite risk of future harm.
3. Juvenile Courts: Jurisdiction: Proof. At the adjudication stage, in order for a juvenile court to assume jurisdiction of minor children under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008), the State must prove the allegations of the petition by a preponderance of the evidence.
4. ___: ___: ___. If the pleadings and evidence at the adjudication hearing do not justify a juvenile court's acquiring jurisdiction of a child, then the juvenile court has no jurisdiction, i.e., no power to order compliance with a rehabilitation plan and no power over the parent or child at the disposition hearing unless jurisdiction is alleged and proved by new facts at a new adjudication disposition hearing.
Appeal from the Separate Juvenile Court of Douglas County: DONNA F. TAYLOR, County Judge. Reversed and remanded with directions to dismiss.
Thomas C. Riley, Douglas County Public Defender, and Stephen P. Kraft for appellant.
Donald W. Kleine, Douglas County Attorney, and Jordan Boler for appellee.
INBODY, Chief Judge, and SIEVERS and CASSEL, Judges.
INTRODUCTION
Carrdale H. appeals from an order of the separate juvenile court of Douglas County which took jurisdiction over his son, Carrdale H. II (the juvenile). On appeal, Carrdale challenges the sufficiency of the evidence to support adjudication under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008).
STATEMENT OF FACTS
In May 2009, the State filed a motion for temporary custody, which was granted by the juvenile court. The State filed its amended petition in July 2009, in which it alleged that the juvenile lacked proper parental care and supervision by reason of the habits of his mother and Carrdale. Because the mother has not appealed in this matter, it is unnecessary to discuss the allegations against her. The petition alleged that the juvenile was at risk of harm because of Carrdale's use of alcohol and/or controlled substances, because Carrdale engages in domestic violence with the juvenile's mother in the presence of the juvenile, and because Carrdale had failed to provide the juvenile with safe, stable, and appropriate housing.
The hearing in this case was based on a few stipulated facts: The juvenile was born in October 2008, Carrdale is his biological father, and a substance which proved to be .3 of a gram of crack cocaine was found in Carrdale's possession in March 2009. The remaining allegations in the petition against Carrdale, such as domestic violence, were dismissed. After brief arguments by counsel, the juvenile court found that the juvenile, less than 1 year old at the time of the hearing, was harmed by Carrdale's possession of illegal drugs. The court noted that such possession subjects Carrdale to arrest and the inability to care for the juvenile. The juvenile was adjudicated under § 43-247(3)(a). Carrdale filed a motion to reconsider, which the separate juvenile court denied. Carrdale has timely appealed to this court.
ASSIGNMENT OF ERROR
Carrdale asserts that there was insufficient evidence to adjudicate the juvenile within the meaning of § 43-247(3)(a).
STANDARD OF REVIEW
Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court's findings. In re Interest of Angelica L. Daniel L., 277 Neb. 984, 767 N.W.2d 74 (2009).
ANALYSIS
Carrdale contends that the fact of his possession of a small amount of crack cocaine is insufficient to warrant the juvenile court's adjudication of the juvenile under § 43-247(3)(a). Carrdale directs us to In re Interest of Brianna B. Shelby B., 9 Neb. App. 529, 614 N.W.2d 790 (2000), a case in which a father appealed from an adjudication of his two children under § 43-247(3)(a) on the basis of his alcohol use. As summarized, the evidence in that case established a pattern of drinking. This court found that although the evidence showed that the parents had consumed alcohol on occasions when the children were in the house, there was no evidence presented to show any impact such drinking had on the children. The juvenile court's order of adjudication was reversed.
Carrdale argues that his case is analogous to In re Interest of Brianna B. Shelby B. because there was no evidence to establish that his actions had any impact on the juvenile. We agree that it is. However, it is important to note one distinction. In In re Interest of Brianna B. Shelby B., the conduct of the parents was not illegal, whereas Carrdale had an illegal substance in his possession, which is a Class IV felony. See Neb. Rev. Stat. § 28-416(3) (Reissue 2008). The juvenile court based its decision upon this fact and reasoned that because Carrdale's actions subjected him to arrest, the juvenile was subjected to the risk that Carrdale could not properly care for him.
Generally, the State need not prove that the juvenile has actually suffered harm but must establish that without intervention, there is a definite risk of future harm. See, e.g., In re Interest of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008). In In re Interest of Anaya, the Nebraska Supreme Court found that the parents' failure to submit their infant to mandatory blood testing required by Neb. Rev. Stat. § 71-519 (Reissue 2009) did not, standing alone, establish neglect to warrant adjudication under § 43-247(3)(a). By refusing to submit their child to the blood test, the parents engaged in illegal activity. The mandatory blood testing is enforced through civil proceedings and "any other remedies which may be available by law" pursuant to Neb. Rev. Stat. § 71-524 (Reissue 2009). Similarly, Carrdale's offense, if he was in fact charged and convicted, may result in imprisonment, but of course, he could also be convicted and placed on probation. See Neb. Rev. Stat. § 28-105 (Reissue 2008).
In prior cases, we have determined that a showing that the parent is in prison and thereby unable to care for his child may be sufficient for adjudication under § 43-247(3)(a). See In re Interest of Maxwell T., 15 Neb. App. 47, 721 N.W.2d 676 (2006) (father who was incarcerated prior to and at time of State's petition, had not had contact with his son for 6 month, and had left son in care of someone who was unable to care for him was properly adjudicated because juvenile was lacking proper parental care due to faults or habits of father). Likewise, in the context of cases involving termination of parental rights, the appellate courts have often held that while incarceration alone cannot serve as the basis for the termination of parental rights, when a parent voluntarily engages in illegal activity leading to incarceration, the court may consider the parent's inability to perform his or her parental obligations because of imprisonment. See In re Interest of Theodore W., 4 Neb. App. 428, 545 N.W.2d 119 (1996).
But, here, the State failed to adduce any evidence whether Carrdale was actually charged with an offense, and thus there obviously was no conviction and incarceration. Furthermore, § 28-105 does not require imprisonment for a Class IV felony, but, rather, there is no minimum prison term prescribed by the statute. The State also failed to adduce whether there was any history of drug use either away from or in the presence of the juvenile, whether Carrdale had prior drug-or alcohol-related offenses, whether the juvenile was present when Carrdale had drugs in his possession, whether the juvenile was in any way affected by Carrdale's actions, or any other such information that allows a reasonable inference that Carrdale's "use of alcohol and/or controlled substances places said child at risk for harm" as alleged in the amended petition. Based only upon an exhibit showing that Carrdale had a controlled substance in his possession in March 2009, and without evidence of charges filed or a sentence imposed or any impact on the juvenile, the risk of harm to the juvenile cannot be considered "definite." At the adjudication stage, in order for a juvenile court to assume jurisdiction of minor children under § 43-247(3)(a), the State must prove the allegations of the petition by a preponderance of the evidence. In re Interest of Rebekah T. et al., 11 Neb. App. 507, 654 N.W.2d 744 (2002). Based upon our de novo review, we find that the juvenile court erred in finding that the limited evidence presented at the adjudication hearing proved the allegation in the petition by a preponderance of the evidence.
If the pleadings and evidence at the adjudication hearing do not justify a juvenile court's acquiring jurisdiction of a child, then the juvenile court has no jurisdiction, i.e., no power to order compliance with a rehabilitation plan and no power over the parent or child at the disposition hearing unless jurisdiction is alleged and proved by new facts at a new adjudication-disposition hearing. See In re Interest of D.M.B., 240 Neb. 349, 481 N.W.2d 905 (1992). Therefore, we remand the cause with directions to dismiss the petition because the juvenile court does not have jurisdiction.
But, our respected colleague's dissent demands a response. While in the "Internet age" one can readily access virtually unlimited sources and amounts of information, we do not think that our jurisprudence has now evolved to the point that a judge can plug the gaps in a State's burden of proof by quotations obtained by Internet research. If we have reached that point, then the notion that judges in our decisionmaking process are limited to consideration of only the evidence in the record becomes essentially meaningless. We strongly believe that we are limited to the evidence in the record. Here, the State chose to limit its evidence to the solitary fact that on one occasion, Carrdale possessed a small amount of crack cocaine. The dissent concludes from such solitary fact that "the strongest inference flowing from Carrdale's possession of this drug is that he had used it in the past and intended to do so again." How this is not purely speculation escapes us. From this truly uninformative record, one could likewise speculate that this was the first time he had ever possessed the drug, or that he was "holding" for someone else. The dissent, when reduced to its essence, simply would hold that "parental possession of drugs is enough to adjudicate" and that no evidence is needed that the child is being neglected, that the child is lacking in proper parental care, or that the father is a habitual user or dealer of drugs such that we can conclude, from the evidence, that the risk of harm to the child justifies the intervention of the State in the parent-child relationship. Obviously, we are well aware that the court need not await harm or tragedy to the child before such intervention can occur, but we cannot accept the proposition that the mere stipulation that a father possessed a small amount of crack cocaine on one occasion, without more, satisfies the State's burden of proof for adjudication.
CONCLUSION
The State failed to show, by a preponderance of the evidence, that Carrdale's use of alcohol and/or controlled substances placed the juvenile at risk of harm. Thus, because we find there was insufficient evidence presented to warrant an adjudication of the juvenile as concerns Carrdale, we reverse the adjudication order and remand the cause with directions to dismiss.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS.