Wheeler v. D.D.

398 N.W.2d 91, 224 Neb. 249, 1986 Neb. LEXIS 1171
CourtNebraska Supreme Court
DecidedDecember 19, 1986
DocketNo. 86-310
StatusPublished
Cited by1 cases

This text of 398 N.W.2d 91 (Wheeler v. D.D.) 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
Wheeler v. D.D., 398 N.W.2d 91, 224 Neb. 249, 1986 Neb. LEXIS 1171 (Neb. 1986).

Opinion

Shanahan, J.

As authorized by the Nebraska Juvenile Code, Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 1984), on August 7, 1984, the county attorney of Garfield County, in his signed but unverified petition in the county court as a juvenile court, alleged that certain juveniles, that is, L.D. (7 years), Z.D. (6 years), N.D. (4 years), and D.J.D. (19 months), were “subject to the jurisdiction of this Court under Section 43-247 (3)(a) and are currently in a situation injurious to the health and/or morals” of the named juveniles.

Section 43-247 states in part:

The juvenile court in each county as herein provided shall have jurisdiction of:
(1) Any juvenile who has committed an act other than a traffic offense which would constitute a misdemeanor or an infraction under the laws of this state, or violation of a city or village ordinance;
(2) Any juvenile who has committed an act which would constitute a felony under the laws of this state;
(3) Any juvenile (a) who is homeless or destitute, or without proper support through no fault of his or her parent, guardian, or custodian; 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; 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; whose parent, guardian, or custodian neglects or refuses to provide special care made necessary by the mental condition of the juvenile; or who is in a situation or engages in an occupation dangerous to life or limb or injurious to the health or morals of such juvenile or (b) [251]*251who, by reason of being wayward or habitually disobedient, is uncontrolled by his or her parent, guardian, or custodian; who deports himself or herself so as to injure or endanger seriously the morals or health of himself, herself, or others; or who is habitually truant from home or school;
(4) Any juvenile who has committed an act which would constitute a traffic offense as defined in section 43-245.

Because we must determine the exact nature of certain actions taken by the juvenile court in this case, we examine and analyze the circumstances under which the juvenile court acted.

After the petition had been filed, on August 7 the children’s parents, the father’s attorney, and the county attorney attended a hearing in the juvenile court, where the father “submitted to the jurisdiction of the Court, admitting the need for Court intervention, but specifically not admitting any specific allegations or facts underlying the Petition.” The court then appointed a guardian ad litem for all the children and an attorney for the father, but deferred appointment of counsel for the mother. The father filed a motion on August 31, requesting, among other items, visitation rights with his children. On September 25 the county attorney, the guardian ad litem, and the court-appointed counsel for the father appeared before the juvenile court, which ordered that psychological evaluations of all parties be completed within 45 days and the father’s visitation of the children be supervised by the Department of Social Services. Although the father had never filed any pleading responsive to the petition, the father’s attorney sought depositions from prospective witnesses.

Immediately before adduction of evidence at a hearing on April 30, 1985, the father’s counsel expressed concern about safeguarding the father’s privilege against self-incrimination and the possibility of criminal charges against the father for his acts involving the children. Regarding the hearing about to take place, counsel for the father stated: “[W]e need to back up and give [the father] a right to protect himself from the very beginning rather than going into disposition — going into these things on disposition.” To expedite the pending proceedings in the juvenile court, the State expressed a willingness to extend [252]*252immunity to the father. The guardian ad litem remarked: “The whole issue is one of sexual abuse. If [the father] will not admit to the sexual abuse then I think the Court must make a determination of whether there was, otherwise we get rid of the case.” Counsel for the mother commented that the hearing became necessary, since the father had denied any misconduct, and, therefore, the father’s sexual abuse of his children had to be “proved to the satisfaction of the Court.” In the presence of the parents, their lawyers, and the guardian ad litem, evidence was then adduced at the April 30 hearing before the juvenile court.

Nadine Folken, an employee of the Department of Social Services for the State of Nebraska, testified that she, in response to a report that the father had sexually abused his children, visited with the children, who described their sexual contacts with their father. One male child told Ms. Folken that his father had fondled the boy’s genitals and, further, as the boy pointed to his genital area, informed Ms. Folken that “sometimes daddy hurts me.” Another male child recounted to Ms. Folken an incident of sexual contact with his father and his father’s semen. (We decline any further detailed elaboration of this particular incident.)

Dr. Thomas England, a clinical psychologist, testified concerning his interviews of the children in the fall of 1984. Two of the male children discussed incidents involving their father’s fondling their genitals and his ejaculation in response to their “touching” him. Dr. England testified concerning the characteristics of a male individual involved in “incest or sexual molestation” and that he found such characteristics present in the father of the children. Dr. England concluded that there had been “sexual contact between [the father] and the children.” Finally, Dr. England recommended that any visitation of the children by the father be supervised and that there should be counseling for “all parties.”

One of the State’s witnesses, a female first cousin of the children’s father, testified that approximately 6 years before the hearing, when that witness was 13 years of age, the father of the children had “sexual intercourse” with the witness.

Called as a witness by the State, the children’s father, age 34, [253]*253denied all sexual “incidents” with his children. The children’s parents were divorced at the time of the hearing. The father did acknowledge that, when he was 12 years old, he had “closeness and simulation of sex but no penetration” of his 8-year-old sister. The father persisted in such relationship with his sister for a period in excess of 12 months. Also, the father admitted a “flashing” incident which had been publicly observed in the parking lot of a Grand Island mall in the fall of 1982, where the father performed a sexual act on himself “to relieve [his] tension.” Later, after confrontation by the Grand Island police, who stated that “prosecution would be imminent if [he] did not take and get counseling and psychiatric evaluation,” the father obtained psychiatric help.

Another psychologist, Dr. John Curran, testified for the State. Dr. Curran had interviewed L.D., Z.D., N.D., and their mother. As testified by Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Interest of LD
398 N.W.2d 91 (Nebraska Supreme Court, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
398 N.W.2d 91, 224 Neb. 249, 1986 Neb. LEXIS 1171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-dd-neb-1986.