In re Interest of Justine J.

    Nebraska Advance Sheets
250	286 NEBRASKA REPORTS



                        CONCLUSION
   For the reasons discussed, we reverse the judgment of the
district court and remand the cause for further proceedings.
	R eversed and remanded for
	                                further proceedings.




                    In   re I nterest of
                                     Justine J. et al.,
                     children under 18 years of age.
                      State of Nebraska, appellee, v.
                          Shawna R., appellant.
                                    ___ N.W.2d ___

                         Filed July 12, 2013.    No. S-12-1134.

 1.	 Juvenile Courts: Judgments: Appeal and Error. Cases arising under the
     Nebraska Juvenile Code are reviewed de novo on the record, and an appellate
     court is required to reach a conclusion independent of the trial 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.
 2.	 Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile at the
     adjudication stage, the court’s only concern is whether the conditions in which
     the juvenile presently finds himself or herself fit within the asserted subsection of
     

 (Reissue 2008).
 3.	 Juvenile Courts: Jurisdiction: Parental Rights. 

(3)(a)
     (Reissue 2008) outlines the basis for the juvenile court’s jurisdiction and grants
     exclusive jurisdiction over any juvenile who lacks proper parental care by reason
     of the fault or habits of his or her parent, guardian, or custodian.
 4.	 Parental Rights. The purpose of the adjudication phase is to protect the interests
     of the child.
 5.	 Juvenile Courts: Jurisdiction: Proof. The Nebraska Juvenile Code does not
     require the separate juvenile court to wait until disaster has befallen a minor child
     before the court may acquire jurisdiction. While the State need not prove that
     the child has actually suffered physical harm, Nebraska case law is clear that at
     a minimum, the State must establish that without intervention, there is a definite
     risk of future harm.
 6.	 Parental Rights: Proof. The State must prove the allegations in a petition for
     adjudication filed under 

(3)(a) (Reissue 2008) by a pre-
     ponderance of the evidence.

   Appeal from the Separate Juvenile Court of Douglas County:
Elizabeth Crnkovich, Judge. Affirmed in part, and in part
reversed and remanded with directions.
                   Nebraska Advance Sheets
	               IN RE INTEREST OF JUSTINE J. ET AL.	251
	                        Cite as 

    Cassidy V. Chapman and Andrea M. Smith for appellant.

  Donald W. Kleine, Douglas County Attorney, Ann C. Miller,
and Emily H. Anderson, Senior Certified Law Student, for
appellee.

  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.

    McCormack, J.
                      NATURE OF CASE
   Shawna R. appeals from an order of the juvenile court adju-
dicating her four children under 

(3)(a)
(Reissue 2008). Shawna does not challenge the adjudication of
her two daughters, Sylissa J. and Justine J. Shawna challenges
the juvenile court’s adjudication of her two sons, Moses S. and
Elijah S., and argues that there was no evidence that the boys
were in danger of future harm. We agree and find that there
was insufficient evidence adduced by the State to support the
adjudication of Moses and Elijah. Therefore, we reverse the
judgment of the juvenile court pertaining to Moses and Elijah
and remand the cause with directions to dismiss the petition for
adjudication of Moses and Elijah.

                        BACKGROUND
   Shawna is the biological mother of four children. At the time
of the adjudication hearing, her daughter Sylissa was 14 years
old, daughter Justine was 11 years old, son Moses was 8 years
old, and son Elijah was 6 years old. At the relevant times of
neglect and abuse, the two oldest children, Sylissa and Justine,
lived with their mother, Shawna, and her husband, Jarrod R.
The record indicates that the two youngest children, Moses and
Elijah, lived with their grandparents.
   On April 12, 2012, the State filed a petition alleging that
Sylissa and Justine came within the meaning of § 43-247(3)(a)
and lacked proper parental care by reason of the faults and
habits of Shawna and Jarrod. The State made five allega-
tions: (1) Shawna’s and Jarrod’s use of alcohol and controlled
substances places said children at risk of harm; (2) Shawna
    Nebraska Advance Sheets
252	286 NEBRASKA REPORTS



and Jarrod have engaged in multiple instances of domestic
violence; (3) Shawna and Jarrod have failed to provide said
children with proper parental care, support, and supervision;
(4) Shawna and Jarrod have failed to provide safe, stable, and
appropriate housing for said children; and (5) due to the above
allegations, said children are at risk for harm.
   On April 16, 2012, the State filed an amended petition. The
amended petition added Moses and Elijah and alleged the two
boys also came within the meaning of § 43-247(3)(a) for the
same reasoning as Sylissa and Justine.
   During the adjudication hearing on October 11, 2012, the
State offered, and the court admitted into evidence, depositions
from Sylissa and Justine. Both Sylissa and Justine testified
to finding drug paraphernalia, including pipes and needles,
in the house. They witnessed multiple instances of domestic
violence between Shawna and Jarrod. They were often left
unsupervised without enough food to eat and having to fend for
themselves when it came to finding dinner. In their depositions,
both daughters testified that they did not feel safe living with
Shawna and Jarrod.
   Sylissa and Justine both testified that at the times of the
above incidences of neglect, their brothers, Moses and Elijah,
were not present. Sylissa testified that Moses and Elijah lived
at their grandparents’ house and not with Shawna and Jarrod.
Additionally, both Sylissa and Justine testified that they felt
safe when staying with their grandparents.
   On October 22, 2012, the juvenile court found by a prepon-
derance of the evidence that Sylissa, Justine, Moses, and Elijah
were within § 43-247(3)(a) due to the faults and habits of
Shawna and Jarrod. The children were ordered to remain in the
temporary custody of the Nebraska Department of Health and
Human Services for appropriate care and placement. Shawna
appeals that order.
                 ASSIGNMENTS OF ERROR
  Shawna assigns, restated and summarized, that the juvenile
court erred in finding by a preponderance of the evidence that
Moses and Elijah come within the meaning of § 43-247(3)(a)
and in finding that Moses and Elijah should remain in the
                        Nebraska Advance Sheets
	                    IN RE INTEREST OF JUSTINE J. ET AL.	253
	                             Cite as 

temporary custody of the Department of Health and Human
Services for appropriate care and placement.

                   STANDARD OF REVIEW
   [1] Cases arising under the Nebraska Juvenile Code are
reviewed de novo on the record, and an appellate court is
required to reach a conclusion independent of the trial court’s
findings. However, when the evidence is in conflict, the appel-
late 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.1

                           ANALYSIS
   Shawna does not contest the juvenile court’s findings that
Sylissa and Justine were at risk of harm under § 43-247(3)(a)
due to her faults and habits. However, she argues that because
Moses and Elijah were not residing with her, they were not
at a risk of harm and did not fall within the meaning of
§ 43-247(3)(a).
   [2,3] To obtain jurisdiction over a juvenile at the adjudica-
tion stage, the court’s only concern is whether the conditions in
which the juvenile presently finds himself or herself fit within
the asserted subsection of § 43-247.2 Section 43-247(3)(a) out-
lines the basis for the juvenile court’s jurisdiction and grants
exclusive jurisdiction over any juvenile “who lacks proper
parental care by reason of the fault or habits of his or her par-
ent, guardian, or custodian.”
   [4-6] The purpose of the adjudication phase is to protect the
interests of the child.3 The Nebraska Juvenile Code does not
require the separate juvenile court to wait until disaster has
befallen a minor child before the court may acquire jurisdic-
tion.4 While the State need not prove that the child has actually
suffered physical harm, Nebraska case law is clear that at a
minimum, the State must establish that without intervention,

 1	
      In re Interest of Rylee S., 

, 

 (2013).
 2	
      See In re Interest of Sabrina K., 

, 

 (2001).
 3	
      See 

 4	
      In re Interest of M.B. and A.B., 

, 

 (1992).
    Nebraska Advance Sheets
254	286 NEBRASKA REPORTS



there is a definite risk of future harm.5 The State must prove
such allegations by a preponderance of the evidence.6
   The issue presented by this appeal is whether the State
proved by a preponderance of the evidence that without inter-
vention, there was definite risk of future harm to Moses and
Elijah, by reason of the fault or habits of Shawna and Jarrod,
while the boys were living with their grandparents. We find
that the State failed to meet its burden.
   In In re Interest of Carrdale H.,7 the juvenile court adju-
dicated a child based upon the father’s possession of illegal
drugs, and the Nebraska Court of Appeals reversed the adju-
dication order. The court noted that the State failed to adduce
any evidence regarding whether the father was charged with a
crime, whether the father had any history of drug use in or out
of the child’s presence, whether the child was present when the
father possessed the drugs, or whether the child was affected in
any way by the father’s actions.8 The court held that the State
failed to prove by a preponderance of the evidence the peti-
tion’s allegation that the father’s use of drugs placed said child
at risk for harm.9
   In In re Interest of Brianna B. & Shelby B.,10 the juvenile
court adjudicated the children because of a pattern of alcohol
use by the parents. The Court of Appeals concluded that the
State failed to adduce evidence to show that the children lacked
proper parental care.11 Although there was evidence that the
parents had consumed alcohol in the presence of the children,
there was no evidence to show that the children were impacted
by the drinking.12

 5	
      In re Interest of Anaya, 

, 

 (2008).
 6	
      See 

 7	
      In re Interest of Carrdale H., 

, 

 (2010).
 8	
      

 9	
      

10	
      In re Interest of Brianna B. & Shelby B., 

, 

 (2000).
11	
      

12	
      

                        Nebraska Advance Sheets
	                    IN RE INTEREST OF JUSTINE J. ET AL.	255
	                             Cite as 

   And finally, in In re Interest of Taeven Z.,13 the juvenile
court adjudicated the child because the mother had ingested
a morphine pill that was not prescribed to her. The Court of
Appeals found that there was no evidence that the child was
affected by the mother’s taking the nonprescribed pill or any
evidence that the mother’s taking the pill placed the child
at risk.14 The court held that there was no evidentiary nexus
between the consumption of drugs by the mother and any defi-
nite risk of future harm to the child.15
   Like the aforementioned cases, we conclude that the State
did not adduce sufficient evidence to support the adjudication
of Moses and Elijah. It is uncontested that the State met its
burden as to the adjudication of Sylissa and Justine. However,
there is no evidence that Moses and Elijah were present for
Shawna’s and Jarrod’s drug use or domestic violence. In fact,
the deposition testimony of both Sylissa and Justine indicates
that Moses and Elijah were living with their grandparents.
Sylissa’s and Justine’s testimony establishes that their grand-
parents provided a safe environment for Moses and Elijah.
Therefore, although the living situation provided by Shawna
and Jarrod to Sylissa and Justine was sufficient to adjudicate
the children, the State failed to prove by a preponderance of
the evidence an evidentiary nexus between the neglect suffered
by Sylissa and Justine and any definite risk of future harm to
Moses and Elijah.
   Therefore, we reverse the juvenile court’s adjudication of
Moses and Elijah. We do so cautiously and note that should
evidence be discovered that Moses and Elijah are at a defi-
nite risk of future harm after being returned to the custody of
Shawna, the State should again petition the juvenile court for
adjudication pursuant to § 43-247(3)(a).
                        CONCLUSION
   Because we find there was insufficient evidence presented
to warrant an adjudication of Moses and Elijah, we reverse the

13	
      In re Interest of Taeven Z., 

, 

 (2012).
14	
      

15	
      

    Nebraska Advance Sheets
256	286 NEBRASKA REPORTS



adjudication order concerning Moses and Elijah and remand
the cause with directions to dismiss the petition as to Moses
and Elijah. As conceded by the parties, we affirm the adjudica-
tion order of the juvenile court as to Sylissa and Justine.
	Affirmed in part, and in part reversed
	                      and remanded with directions.