SUMMARY: Evidence of one-time methamphetamine use and past criminal history with no showing of child neglect or definite risk of harm is not sufficient for adjudicating the child within the meaning of N.R.S. 43-247(3)(a).
Kaden, DOB 1/10, was removed from the mother’s home on March 30, 2010, after the State filed a petition alleging he lacked proper parental care due to parental substance use, domestic violence between the mother (Dezera) and father (Shawn), and the father’s history of drug use and violence against previous partners. At the adjudication hearing on July 15, 2010, Dezera’s probation officer testified that Dezera refused to take a urinalysis test on March 29th and admitted to using methamphetamine on March 25th. A CFS specialist also testified that Dezera admitted to use. At the time, Dezera was living with Kaden at her parents’ home. Her parents had guardianship of Dezera’s 4-year-old child. There was some testimony about disagreements between the parents but no allegations of physical altercations. A police officer also testified that in 2008, Shawn overdosed after swallowing a quarter-sized amount of methamphetamine to avoid being caught in possession. The court also received several certified court documents showing Shawn’s criminal history, which included violation of a harassment protection order, possession of drugs and intimidation by phone. After the hearing, the juvenile court dismissed the petition for lack of evidence. The State appealed.
The Nebraska Court of Appeals affirmed the juvenile court’s order. It noted that all of Shawn’s convictions occurred prior to Kaden’s birth and that none included Dezera. The Court of Appeals also noted that there was no evidence that the drug use occurred in the presence of Kaden, that either parent had drugs in their possession, or that Shawn’s history placed Kaden at risk for harm. Therefore, the Court of Appeals concluded that the evidence did not establish that Kaden lacked parental care or was a definite risk for harm.