SUMMARY: Exhibited was not improperly excluded from evidence when the information contained in the exhibited was included in its entirety in another offered and received exhibit. In addition, evidence that the father had control over the child during the period when the child fractured his ribs supported a finding of abuse or neglect.
On January 6, 2014, the State of Nebraska filed a petition alleging that Trace (DOB 12/2013) was lacking proper parental care by reason of the faults or habits of his mother, Alycia, and father, Tremal. Trace was brought to the hospital in respiratory distress and was diagnosed with 15 rib fractures. At the adjudication hearing held March 31 and April 7, 2014, Dr. Suzanne Haney, a child abuse pediatrician with specialized training in diagnosing and treating child abuse, testified that there was nothing that could have caused Trace’s injuries except for intentionally inflicted force such as squeezing. Dr. Haney had ruled out alternative explanations for the injuries including accidental trauma. The police officers who investigated the case interviewed the parents and testified that Tremal admitted that Trace had started acting fussy on December 28, 2013. Tremal did not provide an explanation for Trace’s injuries.Alycia testified that Tremal was very involved in taking care of Trace and was caring for him on December 28.Tremal’s attorney offered into evidence Exhibit 8, a screenshot of text messages between Alycia and Tremal that purportedly showed that Alycia knew who had injured Trace. Counsel for the State and for Alycia both challenged Exhibit 8 on the basis that it did not include the entire conversation. Tremal’s attorney offered into evidence Exhibit 9, a second screenshot of text messages, but Alycia’s attorney objected that it was not the best evidence. The State then offered into evidence Exhibit 10, a copy of the entire text message conversation. Exhibit 10 was received into evidence. The juvenile court found that the State had proved the allegations relating to Tremal by a preponderance of the evidence.
The Nebraska Court of Appeals affirmed the adjudication. Exhibit 9 was properly excluded from evidence because it was contained within Exhibit 10. Admitting both Exhibit 9 and Exhibit 10 into evidence would be cumulative and, thus, Exhibit 9 was properly excluded. In addition, the evidence admitted supported a finding of abuse or neglect.The evidence established that Tremal had control over Trace during the period when the rib fractures occurred and that the rib fractures ordinarily would not occur in the absence of abuse and neglect. A fair reading of the text message conversation between Alycia and Tremal did not indicate that Alycia knew that the perpetrator was someone other than Tremal. Therefore, the evidence established the allegations against Tremal by a preponderance of the evidence.