In re Interest of Xandria P.

Caselaw Number
311 Neb. 591
Filed On


This is appeal from the Platte County Court sitting as a juvenile court. Xandria P.’s stepfather, Dale A. appeals the juvenile court’s adjudication of Xandria as being a juvenile under § 43-247(3)(a). Xandria’s mother, Victoria M., did not appeal the adjudication order. The Supreme Court affirmed the juvenile court’s order of adjudication.

The State of Nebraska filed a petition alleging Xandria was a juvenile under § 43-247(3)(a), because Dale, who is married to Xandria’s mother, Victoria, and lives with Xandria and Victoria, subjected Xandria to sexual abuse. The petition also alleged that Xandria had disclosed Dale’s sexual contact to Victoria and that Victoria had dismissed the disclosure. The court held a contested adjudication hearing and sustained the allegations in the petition.

The trial record showed that Xandria, told her first grade teacher that “she had a secret with her dad” that she was not supposed to tell anyone about or he would go to jail. Xandria stated that they do things that “a boyfriend and girlfriend do.” Xandria’s teacher reported Xandria’s statements to an investigator with the Platte County sheriff’s office, who then called the DHHS child abuse hotline and completed a safety intake regarding Xandria with a DHHS child and family services specialist. Xandria was placed into the custody of DHHS and transported to the Northeast Nebraska Child Advocacy Center (NNCAC) in Norfolk, Nebraska. Sarah Scheinost, a forensic interview specialist, conducted a recorded forensic interview of Xandria. During the interview, Scheinost explained that the NNCAC is part of a hospital network with doctors and nurses available to meet with Xandria. Scheinost also explained that it was important for Xandria to tell the truth, and Xandria agreed to do so. Xandria then disclosed that she and her “dad” had a secret for more than 1 year whereon multiple occasions he would remove his and Xandria’s clothing and “put his thing that he uses to pee” in her “place that she uses to go pee.” Using her hands and anatomical drawings, Xandria identified her vaginal area. Xandria referred to his penis as a “big, huge, thing” that he “uses to pee.” Xandria reported that on multiple times he had gotten on top of her while both were without clothing. Xandria reported that “her ‘[d]ad’ licked her in the vaginal area” and that she had disclosed this to Victoria on at least one occasion.

The State, after filing the petition in this matter, requested a pretrial hearing on the admissibility of Xandria’s recorded interview. At that hearing, Scheinost provided testimony on behalf of the State to lay foundation for the admission of the recorded interview. Scheinost testified that she holds a bachelor’s degree in human service counseling and a master’s degree of science in education. Scheinost further testified that the NNCAC is located on the east campus of a medical facility. Scheinost indicated that the NNCAC provides forensic interviews, medical examinations, and child advocacy. Scheinost explained that forensic interviews provide medical and therapeutic care for the victim and allow for medical examination or continued therapy as possible follow up treatment. Scheinost also testified that the recorded forensic interviews are conducted for medical purposes and can be used for purposes of medical diagnosis and treatment. On cross-examination, Scheinost admitted she had no medical training and did not make a medical diagnosis. Scheinost also testified that law enforcement was involved in the matter both before and after the interview and that potential child abuse was being investigated. The court, over the hearsay objections of Dale and Victoria, ruled the interview admissible pursuant to the statutory exception regarding medical evidence under Neb. Evid. R. 803(3), Neb. Rev. Stat. § 27-803(3).

At the adjudication hearing, Xandria did not testify, but her recorded interview was received into evidence, again over the objections of Dale and Victoria. The court’s order of adjudication found Xandria to be a juvenile, under § 43-247(3)(a), who is abandoned by his or her parent, guardian, or custodian; who lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian; or whose parent, guardian, or custodian neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such juvenile. The court found that the home environment created by Dale and Victoria was injurious to Xandria’s health, safety, morals, and well-being.

Dale assigns that the juvenile court erred in (1) admitting the forensic interview into evidence over hearsay objections, (2) admitting other evidence over hearsay and relevance objections, (3) finding sufficient evidence for an adjudication, and (4) overruling Dale’s motion to dismiss.

Evidentiary Objections

Central to Dale’s appeal is his claim that the juvenile court erred in admitting hearsay and irrelevant evidence. To summarize, Dale argues that the court erred in admitting Xandria’s recorded forensic interview under rule 803(3); in allowing the case manger to testify about out-of-court statements made by Xandria, Xandria’s teacher, Dale, and Victoria; in admitting certified copies of Dale’s criminal charges; and in admitting safety and risk assessment documents concerning Xandria. In regard to the forensic interview, a declarant’s out-of-court statement offered for the truth of the matter asserted is inadmissible unless it falls within a definitional exclusion or statutory exception. Rule 803 provides:

Subject to the provisions of section 27-403, the following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . .

(3) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Rule 803(3) is based on the notion that a person seeking medical attention will give a truthful account of the history and current status of his or her condition in order to ensure proper treatment. Statements made by a child victim of sexual abuse to a forensic interviewer in the chain of medical care may be admissible under rule 803(3), even though the interview has the partial purpose of assisting law enforcement’s investigation of the crimes. The fundamental inquiry to determine whether statements, made by a declarant who knew law enforcement was listening, had a medical purpose is if the challenged statement has some value in diagnosis or treatment, because the patient would still have the requisite motive for providing the type of sincere and reliable information that is important to that diagnosis and treatment. Whether a statement was both taken and given in contemplation of medical diagnosis or treatment is a factual finding in determining the admissibility of the evidence under rule 803(3).

Statements having a dual medical and investigatory purpose are admissible under rule 803(3), only if the proponent of the statements demonstrates that (1) the declarant’s purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) the statements were of a nature reasonably pertinent to medical diagnosis or treatment by a medical professional. Under rule 803(3), the admissibility of a victim’s statements in a recording is not distinct from the admissibility of the statements themselves.  The fundamental inquiry when considering a declarant’s intent is whether the statement was made in legitimate and reasonable contemplation of medical diagnosis or treatment. Under rule 803(3), the appropriate state of mind of the declarant may be reasonably inferred from the circumstances; such a determination is necessarily fact specific.

Dale argues there was no foundation to admit the forensic interview under rule 803(3), because the specialist who conducted the interview did not herself conduct a medical examination or render a medical diagnosis, nor did any other health care professional. Dale argues the sole purpose of the interview was criminal investigation. However, the Supreme Court ultimately found Dale’s argument to be contrary to Nebraska law and precedent. In this case, Scheinost testified that the NNCAC is located on the campus of a medical facility. Scheinost testified that the recorded forensic interview was conducted for a medical purpose and could be used for purposes of diagnosis and treatment. During the forensic interview, Scheinost told Xandria that the interview room is a safe room, where she could say what she wanted to say and use the words she wanted to use without getting into trouble. Scheinost told Xandria that NNCAC is part of a hospital, that doctors and nurses work there, and that after the interview, Xandria could speak with a doctor or nurse if she had any concerns about her body or health. Upon the Court’s de no review, it conclude that the testimony of Scheinost and the recorded interview itself provided adequate foundation for admitting Xandria’s recorded testimony under rule 803(3).

Given the Court’s conclusion that the juvenile court properly admitted Xandria’s recorded interview, the remainder of Dale’s evidentiary arguments as to the admission of the out-of-court statements of Xandria’s teacher, Dale, and Victoria; the admission of certified copies of Dale’s criminal charges; and the admission of the safety and risk assessments were deemed irrelevant. The Supreme Court notes that in a juvenile case, just as in a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. Given the lack of demonstrated prejudice and the applicable standard of review which requires the exclusion of inadmissible evidence, Dale failed to show how the juvenile court’s other evidentiary rulings had any independent legal significance in the resolution of this matter.

Sufficiency of Evidence

The purpose of the adjudication phase is to protect the interests of the child. The parents’ rights are determined at the dispositional phase, not at the adjudication phase.  At the adjudication stage, in order for a juvenile court to assume jurisdiction of minor children under § 43-247(3)(a), the State must prove the allegations of the petition by a preponderance of the evidence.  Dale postulates that the forensic interview was insufficient evidence because Xandria referred to “dad” and not “Dale.” Dale thus argues the interview failed to establish a positive identification. However, Dale’s assertion is refuted by the record, because Xandria consistently referred to “dad” as the man living in her home who is married to her mother. As such, the Court concluded that the State sustained the adjudication petition by a preponderance of the evidence and this assignment of error was without merit.

Motion to Dismiss

As a final matter, Dale argues the juvenile court lacked jurisdiction over the petition, based on his allegation that the court did not enter a temporary custody order within 48 hours from the time Xandria was taken into custody, as required by § 43-250(2). 43-250(2) states in relevant part:

When a juvenile is taken into temporary custody pursuant to subdivision (2), (7), or (8) of section 43-248, and not released under subdivision (1)(a) of this section, the peace officer shall deliver the custody of such juvenile to [DHHS] which shall make a temporary placement of the juvenile in the least restrictive environment consistent with the best interests of the juvenile as determined by [DHHS]. . . . If a court order of temporary custody is not issued within forty-eight hours of taking the juvenile into custody, the temporary custody by [DHHS] shall terminate and the juvenile shall be returned to the custody of his or her parent, guardian, custodian, or relative.

Here, the Supreme Court found the record refuted Dale’s argument, because a temporary custody was issued within 48 hours. On January 8, 2021, at approximately 3:30 p.m., the DHHS case manager placed Xandria into protective custody and delivered her to the custody of DHHS. On January 9, at approximately noon, a Platte County judge signed a temporary ex parte placement order and emailed it to the DHHS case manager, DHHS personnel, and a deputy Platte County attorney. The Supreme Court further found Dale’s argument to be inapposite to the Court’s jurisprudence. In In re Interest of R.G., the Court held the State’s failure to comply with the statutory requirements relating to the entry of an ex parte temporary detention order does not deprive the juvenile court of jurisdiction. Additionally, in In re Interest of S.S.L., the Court held that in the absence of direct statutory language to the contrary, failure to comply with the time limits imposed by § 43-250 did not mean that the juvenile court failed to acquire, or somehow lost, jurisdiction of the matter. As such, the Court found this assignment of error to be without merit.

For the reasons stated above, the Supreme Court affirmed the adjudication order of the juvenile court.