SUMMARY: Drug possession, delivery and use near the presence of the children, possession of explosive materials and a dirty house are sufficient to establish a definite risk of harm for adjudication.
A petition pursuant to Neb. Rev. Stat. 43-247(3)(a) was filed in January 24, 2012, after a search warrant was executed upon the home of the children (Tyler L., Megan R., and Dylan J.) which found methamphetamine, marijuana, scales, shot guns and rifles, pistols, ammunition, black powder, a fuse cord, and propane torch. The father, Melvin, was arrested and a jail employee described him as erratic and angry. One week earlier, he had admitted to using meth and marijuana. The mother, Jennifer, was also arrested and charged with felony child abuse. An adjudication hearing was held on April 24 and May 3, 2012. A police investigator testified to the poor condition of the home, specifically the strong smells of feces and urine, the lack of sheets on the children’s beds and dog feces on the floor of the kitchen. He also testified that a loaded gun was found in the master bedroom. A sergeant testified that the explosives material could be used to construct a device. Two individuals testified that they bought drugs from Melvin in the home when the children were inside the home, although not directly present. One testified that Melvin was “absolutely not” a good influence on the children. Megan testified that the children never went into the master bedroom, that the dog was old and occasionally had accidents, that the descriptions of the bedrooms were inaccurate and that she had no knowledge of drug use. On May 9, 2012, the court dismissed the case, finding the state failed to prove by a preponderance of the evidence the allegations in the petitions in part because the described conduct caused no harm to the children. The State appealed.
The Nebraska Court of Appeals reversed the court’s dismissal. It noted that to adjudicate there must be a showing of a definite risk of harm but not actual harm. It distinguished this case from the one relied on, In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012), in that in Taeven there was no nexus between the mother’s consumption of morphine and any definite risk of harm to the child. In this case, the Court of Appeal found that the activity of the parents were done in the home while the children were present, that the loaded and unloaded guns, ammunition and explosives were located near the children, and that the home was dirty and in disarray, and concluded that the totality of the evidence proved by a preponderance the allegations of neglect and the definite risk of harm.