Filed on November 10, 2008
758 N.W.2d 48, 17 Neb. App. 203
SUMMARY: The father’s argument against the court ordering a scientific test as part of the case plan was on the admissibility of results, not on whether taking the test was not in the children’s best interest; therefore, he did not overcome a presumption that the proposed case plan is in the children’s best interests.
Sarah L., DOB 10/11/94, Brandon D., DOB 12/1/97, and Caleb L, DOB 12/24/92, are the children of Janelle and child and stepchildren of Mitchell. In September 2006, Sarah alleged that Mitchell touched her inappropriately. She partially recanted in October 2006 but still alleged an incident of inappropriate touching on the upper thigh. The mother became aware of the allegations in June 2006, but did not believe her daughter was credible. On October 20, 2006, the court entered an order of adjudication after Mitchell entered an admission. At a review hearing on August 10, 2007, DHHS submitted a proposed case plan that included a request for an updated risk assessment of Mitchell. The risk assessment would include Mitchell undergoing a PPG, a penile plethysmograph Mitchell objected and requested a Daubert hearing. Testimony was received about the reliability and purpose of the PPG. The State noted that it was not asking that the court accept results or evidence stemming from the test, only that the father take the test. On October 29, 2007, the court disapproved the case plan and indicated it would not order the Mitchell to take the PPG. DHHS appealed to the juvenile review panel, and on February 6, 2008, the juvenile review panel found that the court’s order not requiring the PPG was not in the children’s best interests. Mitchell appealed.
The Court of Appeals affirmed the juvenile review panel’s reversal of the court’s order disapproving the case plan. There is a preference that the proposed case plan of DHHS is in the best interests of the children; a party opposing the plan must prove by a preponderance of the evidence that the plan is not in the children’s best interests. In this case, Mitchell only objected to the scientific validity of the PPG. However, the case plan sought for Mitchell to take the test, not to submit the test results as evidence. In regards to approving the case plan, it is not relevant whether the test results may be admissible as substantive evidence in the future. Mitchell did not provide any evidence to satisfy his burden of proof that the plan is not in the children’s best interests, and therefore the court was in error in disapproving the case plan.
Tags: best interests, case plan, Daubert, penile, plan, plethysmograph, PPG, preponderance, reliability, results, Sarah, scientific, test, validity
