In re Interest of Alexander K., a child under 18 years of age, State of Nebraska and Petrina K. v. Todd K.

Todd K. appeals the decision of the county court for Buffalo County, sitting as a juvenile court, adjudicating his son as a minor child pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2002).

FACTUAL AND PROCEDURAL BACKGROUND

Wade William C. accused his stepfather, Todd, of sexual abuse. Both Wade William and Alexander K., Todd's biological child, were removed from the home. Alexander was removed because he was a sibling of a child claiming sexual abuse and was living in the same home as the alleged perpetrator.

Todd and Petrina K. were married on August 27, 1999. They are the biological parents of Alexander, born March 6, 1999, and Petrina is the biological mother of Wade William, born March 13, 1994.

Petrina was 15 years old at the time Wade William was born. Petrina had various problems and was unable to adequately care for Wade William. On February 14, 1997, Carolyn C., Petrina's mother, was awarded guardianship over Wade William. Carolyn retained physical and legal custody of Wade William for the majority of the first 8 years of his life.

In early 2002, Petrina petitioned the court to terminate Carolyn's guardianship over Wade William and to have him returned to Petrina's sole physical and legal custody. Despite Carolyn's objection, the court granted termination of the guardianship and, subject to the condition that Carolyn keep Wade William enrolled in school, ordered the return of Wade William to Petrina at the end of the school semester. Carolyn failed to keep Wade William in school, and as a result, Petrina was granted custody on April 23, 2002.

That same day, Carolyn began walking from Franklin, Nebraska, where she and Wade William had resided, to Kearney, Nebraska, where Petrina resided, to be with Wade William. A friend of Carolyn eventually picked her up and took her to Kearney. Petrina agreed to let Carolyn stay with her temporarily, and Carolyn stayed at Petrina's home for about 1 month. When Carolyn did leave Petrina's home, she moved less than one block away. Carolyn was at Petrina's home every day, and Wade William would spend time every day at Carolyn's home. Petrina also allowed Carolyn to have Wade William every other weekend. When Wade William came to live with Petrina after Carolyn's guardianship ended, Petrina took Wade William to counseling so that the family could readjust and because he liked to talk about death and killing and had an inappropriate knowledge of sex.

On November 7, 2002, the police were called in response to an argument between Petrina and Carolyn. Carolyn complained that Wade William had been verbally, emotionally, and physically abused by Todd and Petrina. Carolyn also told Officer Michael Bogard that Wade William was made to clean the entire house by himself. At no time did Carolyn mention sexual abuse of Wade William by Todd.

Following his visit with Petrina and Carolyn, Officer Bogard visited with Wade William and the principal of Wade William's elementary school. While at the school--a neutral setting--Officer Bogard observed Wade William to be a normal, healthy boy who appeared excited to be in school. Wade William told Officer Bogard that Wade William's punishment at home consisted of being grounded or being assigned extra chores. He denied ever being spanked as a form of punishment and never disclosed to Officer Bogard that he was hit or whipped. Wade William also denied Carolyn's allegation that he was required to clean the entire house. He also told Officer Bogard that Petrina and Carolyn often argued. The principal did not indicate that he had any concerns of abuse in Wade William's home. Officer Bogard did not feel that Wade William was being deceptive or guarded in his answers, and Officer Bogard did not observe anything that would cause concerns of abuse. He reported Carolyn's complaints as unfounded.

On December 2, 2002, the Kearney police received an anonymous call claiming that Wade William was physically and sexually abused. The anonymous caller stated Carolyn had informed the caller that Wade William was being abused by Todd and Petrina, that he was locked in his bedroom for hours, that he was being forced to urinate out his bedroom window, and that Todd had attempted to "stick his dick in the boy's butt." The anonymous caller was later identified as Shirley Slagle, who testified at trial that she had made the call. Officer Timothy Crowell responded to the call.

Officer Crowell was invited into Todd and Petrina's residence by Petrina. Upon investigation, Officer Crowell found that the room which Wade William was allegedly being locked inside of had a door which opened inward and had a locking mechanism on the inside of the door only. Officer Crowell noted no apparent damage to the door, and Petrina indicated that the lock had been broken for some time--refuting the claim that Wade William was locked in his room for hours. Officer Crowell also found that Wade William's bed was pushed up against the bedroom window and that the window was covered by a shade and various other items, including weatherproofing--all of which indicated to Officer Crowell that urination out of the window would be impossible. Officer Crowell asked Petrina who would make such allegations, to which she responded that it was probably Carolyn, because "she would do anything to get Wade William back into her custody." Officer Crowell noted that the entire time he was at the residence, Carolyn stayed by Wade William and did not allow him to move about the home. Because there were nonfamily members in the home at the time, Officer Crowell did not inquire about the sexual abuse allegations. Officer Crowell then left the residence.

On December 5, 2002, Wade William got into trouble at school because he had "flipped off" a child. A teacher confronted Wade William about the trouble Wade William had been having following the rules the previous few days and asked if he would like to talk to someone about it. When given the choice to talk to his teacher, the principal, or the school counselor, Wade William chose to talk to the school counselor. Wade William reported to the school counselor that he was physically and sexually abused by Todd. Both of the minor children, Wade William and Alexander, were removed from the home. On December 12, petitions were filed in Buffalo County Court alleging that Wade William and Alexander were children as defined by § 43-247(3)(a). The adjudication hearings for both minor children were held on April 22 and May 6, 2003.

The first witness for the State was Wade William. Evidence was offered by live testimony and by a video of an interview given by Wade William the day he reported the abuse. The same day that Wade William reported to the school counselor that he was sexually abused by Todd, he was interviewed by someone from the Family Advocacy Network.

During the interview, Wade William detailed the following events of the alleged sexual abuse: Wade William was sitting in the bathtub; Todd came into the bathroom, pulled Wade William up by his arm, and said, "[L]isten to me and I won't hurt you." Todd then took all of his own clothes off and put his penis inside Wade William's bottom for approximately half a minute. During the incident, Todd told Wade William that if he told anyone, Todd would whip him with a belt. Todd touched Wade William's penis and then asked Wade William to do the same thing to him. Wade William said no and was then able to get away from Todd. Wade William tripped Todd and made him "get dizzy." Wade William ran out into the living room with Todd chasing him. Wade William then ran back into the bathroom and was able to lock the door. Todd threatened to break the door down, at which time Petrina came home. Wade William came out of the bathroom because he heard Petrina scream. Wade William got in the way of Todd to prevent him from hitting Petrina. Todd then went back into the bathroom; Wade William heard a "crack" and believed that Todd had broken the lock.

Several other witnesses testified, offering evidence that contradicts the testimony of Wade William. For example, Wade William testified that his uncle, Travis C., was home at the time of the alleged incident, but could not hear what was going on because his bedroom door was soundproof. Travis testified that his bedroom door, which goes into the bathroom, is not soundproof. In fact, he testified that it is an old door which is falling apart. Travis testified that he is able to hear clearly everything said in the bathroom and that on the date in question, he never heard Todd threaten Wade William.

Finally, Carolyn testified that Wade William told her of the sexual abuse. However, she says that the abuse occurred on a Friday, while Wade William testified that it occurred on a Sunday. She also was confused when testifying as to how the abuse occurred. She stated that Todd dragged Wade William into the bathroom from the kitchen and then molested him. She also gave contradicting accounts of whether Wade William was in the bathtub when Todd went in to molest him. Carolyn also testified that she reported the sexual abuse of Wade William to the police on November 7, 2002. However, there is no evidence from Officer Bogard to support her testimony that she reported sexual abuse on November 7.

The juvenile court was convinced by a preponderance of the evidence that the molestation occurred as described by Wade William. The court stated that while it was apparent that Carolyn had a deep interest in reobtaining custody of Wade William, there was no question in the court's mind that the report was in no way coached by Carolyn. The juvenile court found that Petrina fully supported her husband, Todd, and denied the molestation of her son Wade William. Therefore, she was not in a position to protect Wade William from any future advances by Todd. The court also noted that while there was no evidence whatsoever of any molestation upon Alexander, the court did not have to wait for such abuse to occur in order to take jurisdiction of him. The court then declared Wade William and Alexander to be children as described by § 43-247(3)(a) and adjudicated them as such. Todd appeals the decision with regard to Alexander.

ASSIGNMENT OF ERROR

Todd alleges the juvenile court erred in finding sufficient evidence that Alexander is a minor child as defined by § 43-247(3)(a).

STANDARD OF REVIEW

Juvenile cases are reviewed de novo on the record, and the appellate court is required to reach a conclusion independent of the juvenile court's findings; however, when the evidence is in conflict, the appellate court will consider and give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. In re Interest of Michael R., 11 Neb. App. 903, 662 N.W.2d 632 (2003).

ANALYSIS
Wade William's Allegations of Sexual Abuse.

The juvenile court in each county has jurisdiction of "[a]ny juvenile . . . who is in a situation . . . dangerous to life or limb or injurious to the health or morals of such juvenile." § 43-247(3)(a). The level of proof required for an adjudication based on § 43-247(3)(a) is a "preponderance of the evidence." In re Interest of D.A., 239 Neb. 264, 475 N.W.2d 511 (1991); In re Interest of Sarah C. & Jason C., 10 Neb. App. 184, 626 N.W.2d 637 (2001). Furthermore,

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[n]umerous jurisdictions which have considered the question of sufficiency of circumstantial evidence in connection with juvenile proceedings involving issues of child neglect or child abuse have adopted the position that a finding of abuse or neglect may be supported where the record shows (1) a parent's control over the child during the period when the abuse or neglect occurred and (2) multiple injuries or other serious impairment of health have occurred which ordinarily would not occur in the absence of abuse or neglect.

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In re Interest of McCauley H., 3 Neb. App. 474, 480, 529 N.W.2d 77, 82 (1995). The record in the instant case shows neither parental control--in this instance, as to Todd--during the period when the abuse allegedly occurred nor proof of injuries.

The instant case relies solely on testimonial evidence, because there was no physical evidence of abuse of Wade William. Because there was no physical evidence, credibility of the witnesses was crucial to the outcome of the case. "Credibility of a witness is always relevant. This is especially so when the witness whose credibility is under examination is the accusing party in a sexual assault case without witnesses to the assault and no trace of physical evidence." State v. Eldred, 5 Neb. App. 424, 436, 559 N.W.2d 519, 528 (1997). While the juvenile court observed the witnesses, found Wade William to be a credible witness, and chose to believe his sworn version of the facts, we cannot easily push aside the numerous inconsistencies as well as the difficult-to-accept or simply unconvincing testimony from Wade William. Additionally, we have the benefit of the videotaped interview with the child.

First of all, Wade William's timeline of events raises serious concerns. Wade William testified that the abuse occurred on a Sunday morning (October 20, 2002). Todd's boss described exhibit 9 as a time adjustment sheet, from which employees' actual hours are computed for payroll purposes. Exhibit 9 shows that Todd worked from 5:45 a.m. to 5:05 p.m. on October 20. Wade William also testified that Petrina was not home at the time of the incident and that he came out of the bathroom when he heard her scream. In order for Wade William's story to be true, the abuse would have to have occurred prior to 5:45 in the morning. It seems highly unlikely that Wade William would have been up that early and taking a bath, that Petrina would have left the house and then returned, and that all of this would have happened in time for Todd to make it to work at 5:45 a.m. Additionally, Petrina testified that Wade William was at Carolyn's home from noon on Saturday, October 19, until 5 p.m. on Sunday, October 20.

Second, Carolyn testified that she thought the abuse occurred on a Friday (October 18, 2002), because that is what Wade William told her. Again, evidence was offered to show that Todd was working on October 18 from 7 a.m. to 5 p.m. Also, Carolyn offered a different account of how the molestation occurred, based on what Wade William told her, than what Wade William testified to. And, her version is confused and inconsistent.

Third, Wade William testified that Travis was sleeping in his room at the time of the alleged incident and that Travis could not hear the ruckus Wade William described, because Travis' bedroom door was soundproof or, in Wade William's words, "It is a sound door thing where you can't hear in and you can't hear out." However, Travis testified that his door is not soundproof and that the door is very old and falling apart. Travis testified that he can hear everything that is being said in the bathroom if people are using normal conversational tones. Furthermore, with his door shut, he can even hear out to the living room, although he cannot understand what is being said. Therefore, Travis certainly would have been able to hear Todd if Todd were pounding on the bathroom door and screaming at Wade William--if such happened. Travis testified that he heard nothing.

Fourth, Wade William testified that he went to a doctor on the Tuesday (October 22, 2002) after the alleged abuse. Wade William stated that the only reason he did not tell the doctor what happened is that Todd was in the room. However, Todd was working from 6:20 a.m. to 3:20 p.m. on October 22. Therefore, it would have been impossible for him to have been at the 8:15 a.m. doctor's appointment. Petrina also testified that Todd was not present at the appointment.

Fifth, Wade William testified that he reported the abuse to "Jonathan's grandma" (Slagle), Jonathan being a friend of Wade William. However, Slagle testified that it was Carolyn who told her of the alleged abuse and that Wade William never mentioned any abuse to Slagle. We note Slagle's testimony that this was the first time she had ever met and spoken to Carolyn, making the reporting in such context rather unusual, like many things in this record.

Finally, Wade William delayed reporting the abuse to his grandmother, Carolyn, and while we know such delay occurs, here, the relationship between Wade William and Carolyn was such that we would expect immediate reporting, given the magnitude of the incident and the closeness of the relationship between Wade William and Carolyn. See State v. Doan, 1 Neb. App. 484, 498 N.W.2d 804 (1993) (Child Sexual Abuse Accommodation Syndrome helps explain why many sexually abused children delay reporting their abuse and why many children recant allegations of abuse and deny that anything occurred).

We also note that Carolyn was in a position to have great influence over Wade William, and she obviously wants the child. She raised Wade William for the first 8 years of his life and describes him as her best friend. This is not a typical grandmother-grandchild relationship. Several instances in the record demonstrate Carolyn's control over and dependence on Wade William. For example, when Petrina regained custody of Wade William, Carolyn began walking from Franklin to Kearney in order to be with Wade William. Petrina testified that when Carolyn was staying with her in late April and May 2002, Carolyn refused to sleep on the couch and insisted on sleeping on the floor in Wade William's room. On December 2, when Officer Crowell visited Todd and Petrina's home in response to an anonymous call regarding abuse, he noted that Carolyn stayed beside Wade William the entire time and refused to let him move about the house. While we cannot say for sure that Wade William's allegations and testimony regarding sexual abuse were coached, we find it interesting to note that in the month and a half between the alleged molestation and the report to the school counselor that resulted in the removal of the children from the home, there were two other reports of abuse to the police--the second of which mentioned sexual abuse. It is almost as if the reports became increasingly serious to include sexual abuse so that the children would be removed from the home.

After reviewing the record in its entirety, and giving consideration to the fact that the juvenile court observed the witnesses, we still are not convinced by a preponderance of the evidence that Wade William was molested by his stepfather Todd. There are too many inconsistencies and contradictions between Wade William's testimony and the rest of the evidence, as well as wild claims such as Wade William's making his assailant "dizzy" and Travis' being in a "soundproof" room. In short, on our de novo review, we find that the State has not proved its case by a preponderance of the evidence.

Adjudication of Alexander.

The juvenile court's reliance on Wade William's testimony led to the adjudication of both Wade William and Alexander, even though there was no indication that Alexander had ever been harmed.

The juvenile code must be liberally construed to accomplish its purpose of serving the best interests of the juveniles who fall within it. In re Interest of Crystal T. et al., 7 Neb. App. 921, 586 N.W.2d 479 (1998). Additionally, we have stated that the right of a parent to the custody and control of his or her child is a natural right protected by the Constitution, but such right is subject to the paramount interest which the public has in the protection of children from abuse and neglect. In re Interest of Eric O. & Shane O., 9 Neb. App. 676, 617 N.W.2d 824 (2000). The best interests of the children is the hallmark of the juvenile code. Id.

In re Interest of Sarah C. & Jason C., 10 Neb. App. 184, 192, 626 N.W.2d 637, 643-44 (2001). In addition, "[i]f evidence of the fault or habits of a parent or custodian indicates a risk of harm to a child, the juvenile court may properly take jurisdiction of that child, even though the child has not yet been harmed or abused." In re Interest of M.B. and A.B., 239 Neb. 1028, 1030, 480 N.W.2d 160, 161-62 (1992).

If Wade William had been sexually abused by Todd, then the juvenile court would have jurisdiction over Alexander because he would be a sibling living in the same home as a child who had been abused. Furthermore, Petrina's support of Todd, and her denial of the abuse, would allow the inference that she is incapable of protecting Alexander. However, as noted above, there was insufficient evidence to show that Wade William had been sexually abused by Todd. Therefore, the adjudication of Alexander must necessarily be reversed.

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Click the case caption above for the full text
of the Court's opinion.

For the reasons stated above, we find that the evidence fails to prove the alleged basis for adjudicating Alexander a minor under § 43-247(3)(a), and we therefore reverse the decision of the county court for Buffalo County, sitting as a juvenile court.

Reversed in favor of Plaintiff.

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Reported by L. Hargraves.