In re Interest of Brittany M., et al
Filed on April 1, 2008
Memorandum Opinion, not designated for permanent publication
A07-719
SUMMARY: Admitting evidence involving sexual abuse of the children by the parents in a termination of parental rights trial where sexual abuse was not a basis for termination was not in error because such evidence is relevant to whether termination is in the best interests of the children.
The children, Brittany (DOB 7/24/96), Alicia (DOB 6/25/97) and Joseph (12/14/98) were removed from the parental home on October 30, 2003, based on allegations of failure to provide housing and inappropriate sexual contact by the father, Shane. After the adjudication hearing ending on April 12, 2004, the children were found within the meaning of N.R.S. 43-247(3)(a) for failure to provide stable housing. The court dismissed the counts for sexual abuse for lack of evidence.
A supplemental petition was filed on April 29, 2004, alleging inappropriate sexual contact by Shane with Brittany and Alicia, failure by Teresa to protect them from sexual contact, and open sexual activity by Teresa in the presence of the children, but again on August 11, 2004 the court dismissed the supplemental petition for failure to prove.
A motion for termination of parental rights was filed on April 7, 2006 under N.R.S. 43-292(6) as to Teresa and 43-292(7) as to both parents. The parents challenged the admissibility of evidence relating to sexual abuse. Their challenge was overruled. During trial, evidence was introduced by a number of witnesses as to the children’s mental, behavioral, and social problems, their conduct toward the parents during visits, and their statements about sexual abuse by the parents and others. After trial, the court found the children came within the meaning of N.R.S. 43-292(7) for being out of home 15 of 22 months and within 43-292(6) for failure of Teresa to comply with her case plan, and that termination was in the children’s best interests. The parents appealed.
In the opinion by the Nebraska Court of Appeals, the principle issues addressed were: (1) the principle of res judicata (2) right to confront accusers and (3) relevance of sexual abuse evidence. On the res judicata issue, the Court found it was not error to allow evidence of sexual abuse at the termination hearing, even though those allegations were dismissed after evidence was introduced during the adjudication hearing, because the considerations being made in a termination proceeding differed from those in an adjudication hearing. Adjudication hearings deal with jurisdictional issues whereas termination hearings include best interests analysis. Furthermore, the status of the “child’s welfare and best interests is not static” and it “must be reexamined as circumstances change and time passes.” See In re Interest of V.B. and Z.B., 220 Neb. 369, 370 N.W.2d 119 (1985).
On the issue of the parents right to confront the accusers of the sexual abuse, the Court found that Shane did have the right to call the children to the witness stand and cross-examine them about the statements they made prior to trial. The children’s statements were not inadmissible hearsay because of the exception under N.R.S. 27-803(3). Finally, the Court found that the allegations of sexual abuse were relevant to the children’s best interests.
Tags: 15, 22 months, best interests, confront, hearsay, res judicata, sexual abuse, termination of parental rights
