In Re Brian B.

689 N.W.2d 184, 268 Neb. 870
CourtNebraska Supreme Court
DecidedDecember 3, 2004
DocketS-03-1316
StatusPublished
Cited by16 cases

This text of 689 N.W.2d 184 (In Re Brian B.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Brian B., 689 N.W.2d 184, 268 Neb. 870 (Neb. 2004).

Opinion

689 N.W.2d 184 (2004)
268 Neb. 870

In re Interest of BRIAN B. et al., children under 18 years of age.
State of Nebraska, appellee,
v.
Justine R., appellee, and
Kevin R., appellant.

No. S-03-1316.

Supreme Court of Nebraska.

December 3, 2004.

*186 Jeffrey A. Wagner, of Schirber & Wagner, L.L.P., Omaha, for appellant.

Lee Polikov, Sarpy County Attorney, and Sandra K. Markley for appellee State.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

This is an appeal from an adjudication by the separate juvenile court of Sarpy *187 County that Brian B., Stephanie B., and Raymond R. are abused or neglected minors as defined in Neb.Rev.Stat. § 43-247(3)(a) (Cum.Supp.2002) by reason of the conduct of Justine R., their natural mother, and Kevin R., the natural father of Raymond. The natural father of Brian and Stephanie is not a party to these proceedings. Kevin is the sole appellant.

FACTS

Brian, born November 12, 1999, and Stephanie, born October 4, 1998, had been adjudicated by the separate juvenile court on May 29, 2002, for reasons which are not entirely clear from the record, but apparently related to the sanitary conditions of their home. Thereafter, they continued to reside with Kevin and Justine, who were then married, and the couple's minor son, Raymond, born April 22, 2002. The record reflects that Kevin left the residence in July 2002 and that he did not return until June 2003. In October 2002, all three children were removed from the home and placed in foster care. On July 15, 2003, the State filed the operative "Second Amended Supplemental Juvenile Petition" alleging that all three children were as described in § 43-247(3)(a) because Kevin had sexually assaulted Stephanie, then age 4, and because Raymond, then age 6 months, had suffered an unexplained broken femur while in Justine's care in October 2002.

Prior to the adjudication hearing on these allegations, the State filed a motion to use hearsay statements made by Stephanie to her therapist and a separate motion to allow Stephanie to testify in chambers at the adjudication hearing. A pretrial hearing was held on these issues. At this hearing, the State offered the expert testimony of Mary Ellen Christ-Anderson, a child and family therapist and a licensed mental health practitioner in the State of Nebraska. Christ-Anderson specializes in the area of play therapy with children who have experienced trauma in the form of abuse or neglect.

Christ-Anderson began seeing Stephanie in January 2003. In Christ-Anderson's opinion, Stephanie is developmentally delayed in her general knowledge, speech, and vocabulary and in her coarse motor and fine motor skills. Christ-Anderson testified that Stephanie was capable of telling what had happened to her but that "there would be a risk of harm" in forcing her to testify in front of Kevin. Christ-Anderson opined that because Stephanie had been diagnosed with posttraumatic stress disorder, testifying in a large room with many people, including Kevin, would be "very frightening." Christ-Anderson further testified that it was possible that seeing Kevin would cause Stephanie to "regurgitate" memories of the sexual abuse and "shut down." Christ-Anderson also expressed concern that Stephanie may think that talking about the abuse in front of people would cause her to get in trouble, that she may engage in negative behaviors after seeing Kevin, and that she may experience emotional flashbacks. In response to counsel's question, "Do you believe that there's a risk that [Stephanie] would shut down completely if she was forced to testify in front of [Kevin]?" Christ-Anderson replied, "Could be."

On cross-examination, Christ-Anderson conceded there was only a possibility that Stephanie would suffer irreparable harm if she testified in the courtroom in front of Kevin. She further stated that if Stephanie were frightened, there was a possibility that she would not be truthful for the court. She admitted that it was equally possible that seeing Kevin would not cause Stephanie to "shut down." She stated, *188 however, that when a child or person with posttraumatic stress disorder is met with a similar experience or a similar trauma, such as seeing the perpetrator, "it normally results in an emotional upheaval and subsequent negative behaviors." She admitted that her suggestion that testifying could result in irreparable harm to Stephanie was merely "[a]n educated guess." However, Christ-Anderson testified that due to Stephanie's developmental and cognitive delays, her ability to understand and process the experience of testifying would be "very unique." Neither Kevin nor Justine offered evidence at the hearing.

The juvenile court determined that the State had demonstrated "legitimate concerns about the child's testimony in court" and that there "has been a showing of a risk of the child being harmed." Based upon these findings, the court permitted Stephanie to testify in chambers at the adjudication hearing, and she did so. Present in chambers during Stephanie's testimony at the adjudication hearing were the judge, the court reporter, counsel for both parties, the guardian ad litem, and Stephanie's foster father, who was designated as her support person. The court reporter's computer was set up in a separate room occupied by Kevin and the judge's bailiff so that Kevin could view the testimony on the computer screen as it was given. If Kevin wanted the testimony stopped for any reason or wanted to confer with counsel, he was to alert the bailiff, who would then knock on the chamber door, immediately ceasing all testimony. On one occasion, Kevin used this procedure to interrupt the testimony and inform the judge that he was having difficulty reading the testimony from the screen due to the speed of its presentation. Adjustments were made in order to allow him to adequately follow Stephanie's testimony.

Stephanie testified at the adjudication hearing that "Daddy Kevin touched my private" and that "Daddy Kevin hurt my private." Using anatomically correct dolls, Stephanie identified her "private" as her vagina, and she stated that "Daddy Kevin" touched her there with his tongue. She further testified that "Daddy Kevin hurt my private with his private." On cross-examination, Stephanie testified that "Daddy Kevin" hurt her in the barn and that she rode on a tractor with him. She testified there were cows and horses and giraffes in the barn. She also stated she remembered going to Disney World. Kevin subsequently testified that Stephanie had never been either on a tractor or to Disney World. He denied ever touching Stephanie in a sexual manner.

After Stephanie testified at the adjudication hearing, Christ-Anderson was permitted to testify over Kevin's hearsay objections regarding statements Stephanie made to her during the therapy sessions which began in January 2003. These statements were to the effect that "Daddy Kevin" had sexually assaulted her. Christ-Anderson testified that the statements were consistently made over the course of five or six separate sessions. She also testified that the very first time Stephanie made an allegation, it was offered spontaneously after Christ-Anderson had asked her a question about a stuffed animal. The State argued that the statements were admissible hearsay as a statement made during a medical diagnosis, Neb.Rev.Stat.

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Cite This Page — Counsel Stack

Bluebook (online)
689 N.W.2d 184, 268 Neb. 870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-brian-b-neb-2004.