SUMMARY: Dismissal of a petition was proper where the State failed to introduce evidence that the children witnessed or were aware of the domestic violence between the parents or evidence of a significant history of domestic violence between the parents. In addition, an incarceration of 104 days, by itself, is not enough to warrant an adjudication.
On November 13, 2013, the State of Nebraska filed a petition alleging that Michael Jr. (DOB 7/2011) and Natesia (DOB 9/2002) lacked proper parental care by reason of the faults or habits of Conisha and Michael Sr. following a domestic violence incident that resulted in Conisha’s broken nose. Michael Sr. is Michael Jr.’s biological father and Natesia’s stepfather. Michael Sr. pled guilty to third degree domestic assault and was sentenced to 104 days in jail. Conisha admitted to the allegations in the petition on February 10, 2014. At an adjudication hearing held February 20, 2014 on the allegations against Michael Sr., the State introduced into evidence Michael Sr.’s criminal docket regarding the domestic violence incident and pictures of Conisha’s broken nose and blood in the family home. Conisha testified that there had been three or four other domestic violence altercations between herself and Michael Sr., but only one of those had resulted in a physical injury. Conisha stated that Michael Jr. and Natesia were not present for the November 2013 domestic violence incident. An initial assessment worker also testified that she had reviewed the family’s history and the domestic violence situation and determined that the children were at a high risk for harm. The initial assessment worker testified that Natesia had told her she was scared of Michael Sr. and that she had been pushed during a previous domestic violence incident. However, this conversation was hearsay and thus only admissible to establish a basis for the worker’s opinion. Michael Sr. moved to dismiss the State’s case due to insufficient evidence. The juvenile court granted Michael Sr.’s motion to dismiss on February 20, 2014.
The Nebraska Court of Appeals affirmed the dismissal. The State failed to introduced any evidence that Michael Jr. or Natesia were present or even aware of the domestic violence incident between Conisha and Michael Sr. The Court of Appeals distinguished the present case from previous appellate cases where the parents had previously caused harm to another child, and thus it was not necessary to introduce evidence that the children were aware of the domestic violence. Here, the State did not present any evidence that Michael Sr. had ever harmed a child. There was also insufficient evidence of a significant history of domestic violence incidents. In addition, Michael Sr.’s incarceration was not such that it, by itself, would warrant an adjudication based on the fact that Michael Sr. was unable to provide care for Michael Jr. The juvenile court’s dismissal of the petition was affirmed.