SUMMARY: Proper notice of allegations against a parent in the petition is a requirement of due process, not of jurisdiction. In the allegation of non-supervision of a child, duration is a critical piece of establishing definite risk of harm.
A 3a petition as to Taeven, DOB 5/09, was filed on May 3, 2011, alleging that the mother, Alishia, left Taeven unsupervised and tested positive for methamphetamine. At trial, testimony was that Taeven was found in a courtyard area of her apartment complex without any adult present. There was no fence, and Taeven was approximately 30 feet from the parking lot and 50-75 yards from a street. Taeven’s grandfather testified that Alishia on one occasion had taken painkillers and became incapacitated. Alishia’s counsel objected on the basis that the petition did not give notice of that particular allegation as to unfitness. The court sustained the objection and the State rested. The court then adjudicated Taeven on the basis that taking morphine without a prescription was illegal and that taking those medications was dangerous to the health and morals of the child. Alishia appealed and the State cross-appealed.
The Nebraska Court of Appeals affirmed in part and in part reversed and remanded. It first noted that the statutory requirement as to pleadings for cases filed under 43-247(1), (2) and (4) does not necessarily require “higher specificity” as alleged by the appellant but just intends to bring it in line with adult criminal pleadings. As to 3a petitions, the standard is due process as to notice of the allegations being made. Further, the pleading requirement does not give the court jurisdiction but rather gives the parent notice of the basis for the court acquiring jurisdiction. In this case, the State did give proper notice to the mother that ingestion of drugs was an issue but did not give an offer of proof during trial after the objection was sustained and it therefore was not properly preserved for appeal. The remaining evidence showing that the child was unattended in a courtyard that was 30 feet from a parking lot and 50-75 yards from a street was not sufficient for adjudication because there was no evidence as to duration the non-supervision occurred, which is necessary to show a definite risk of harm. Finally, the Court of Appeals concluded that, like in In re Interest of Carrdale H., 18 Neb. App. 350, 781 N.W.2d 622 (2010), and In re Interest of Brianna B. & Shelby B., 9 Neb. App. 529, 614 N.W.2d 790 (2000), there was no showing that the mother’s ingestion of drugs alone created a definite risk of harm and therefore there cannot be an adjudication solely on that allegation.