SUMMARY: Because there was no evidence of domestic violence between the parents creating definite risk of harm to the children, dismissal of the 3a petition was proper.
Blessing S., DOB 2/09, and Phillip S., Jr., DOB 2/10, are the children of Shardee and Phillip. On February 24, 2011, the State filed a 3a petition base on allegations that Phillip threatened to kill Shardee, that there was domestic violence in the home, and that the parents failed to properly provide for the children. An adjudication hearing was held on July 1, 2011, where one witness, the DHHS assessment worker, testified. She spoke with both parents about the domestic violence incident and possible drug use. A drug test completed by the mother was negative. Shardee admitted there was domestic violence between she and Phillip and that she was afraid of him but not that she was afraid of him harming the children. Phillip indicated he had no knowledge of any drug use and that the incident was not “what it had been made out to be.” After the hearing, the juvenile court found the State failed to meet its burden of proof and dismissed the petition. The State appealed.
The Nebraska Court of Appeals affirmed the dismissal. Based on the evidence of the sole witness, the Court of Appeals noted that there was no testimony of the specific circumstances of the domestic violence and whether it was even in the presence of the children. The Court of Appeals concluded that there was no evidence that the parents failed to provide the children with proper care nor that there was a definite risk of harm to them.
No full opinion available