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Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

In re Interest of Kane L., a child

under 18 years of age.

State of Nebraska, appellee, v. Angela L., 

appellant, and Scott L., appellee.

In re Interest of Carter L., a child

under 18 years of age.

State of Nebraska, appellant and cross-appellee, 

v. Angela L., appellee and cross-appellant.

___ N.W.2d ___

Filed May 4, 2018. Nos. S-17-720, S-17-775.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently 

of the juvenile court’s findings. When the evidence is in conflict, 

however, an appellate court may give weight to the fact that the lower 

court observed the witnesses and accepted one version of the facts over 

the other.

2. Constitutional Law: Due Process. The determination of whether 

the procedures afforded to an individual comport with constitutional 

requirements for due process presents a question of law.

3. Trial: Evidence: Appeal and Error. An appellate court reviews the 

trial court’s conclusions with regard to evidentiary foundation for an 

abuse of discretion.

4. ____: ____: ____. Because authentication rulings are necessarily fact 

specific, a trial court has discretion to determine whether evidence has 

been properly authenticated. An appellate court reviews a trial court’s 

ruling on authentication for abuse of discretion.

5. Parental Rights: Due Process. The fundamental liberty interest of natural parents in the care, custody, and management of their child is afforded 

due process protection. Such due process rights include the right to be 

free from an unreasonable delay in providing a parent a meaningful 

hearing after the entry of an ex parte temporary custody order.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/06/2018 01:11 AM CDT
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299 Nebraska Reports

IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

6. Criminal Law: Trial: Evidence. Where objects pass through several 

hands before being produced in court, it is necessary to establish a complete chain of evidence, tracing the possession of the object or article 

to the final custodian; and if one link in the chain is missing, the object 

may not be introduced in evidence.

7. ____: ____: ____. Objects which relate to or explain the issues or form 

a part of a transaction are admissible in evidence only when duly identified and shown to be in substantially the same condition as at the time 

in issue.

8. Trial: Evidence: Appeal and Error. Whether there is sufficient foundation to admit physical evidence is determined on a case-by-case basis. 

An appellate court’s review concerning the admissibility of such evidence is for an abuse of discretion.

9. Parental Rights. The purpose of the adjudication phase is to protect the 

interests of the child.

10. Juvenile Courts: Jurisdiction: Parental Rights: 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. The State must prove such allegations by a preponderance of 

the evidence.

Appeals from the County Court for Buffalo County: John

P. Rademacher, Judge. Judgment in No. S-17-720 affirmed. 

Judgment in No. S-17-775 reversed, and cause remanded for 

further proceedings.

Elizabeth J. Chrisp, of Jacobsen, Orr, Lindstrom & Holbrook, 

P.C., L.L.O., for Angela L., appellant in No. S-17-720 and 

appellee in No. S-17-775.

Mandi J. Amy, Deputy Buffalo County Attorney, for State 

of Nebraska, appellee in No. S-17-720 and appellant in No. 

S-17-775.

Vikki S. Stamm, of Stamm, Romero & Associates, P.C., 

L.L.O., guardian ad litem.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, 

JJ., and Strong, District Judge.
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Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

Heavican, C.J.

INTRODUCTION

Kane L. and Carter L. were removed from the family home 

as a result of methamphetamine use by their mother, Angela 

L., and their father, Scott L. The county court for Buffalo 

County, sitting as a juvenile court, adjudicated Kane but not 

Carter. In separate appeals, Angela challenged Kane’s adjudication and certain rulings of the juvenile court with respect 

to the petition seeking to adjudicate Carter. The State, acting 

through the Buffalo County Attorney’s office, appealed the 

juvenile court’s failure to adjudicate Carter. We affirm the 

juvenile court’s order adjudicating Kane and reverse the juvenile court’s order declining to adjudicate Carter, and remand 

the cause for further proceedings.

BACKGROUND

Angela is the mother of Carter, born in September 2000, and 

Kane, born in September 2008. Carter and Kane’s biological 

father is Scott. Scott and Angela are also biological parents to 

Lily L. Lily was 19 years old at the time of these proceedings. 

As such, Lily is not involved in these juvenile court actions, 

although placement of Kane and Carter was with her for a 

period of time.

In January 2017, Angela gave birth to another boy. Scott 

is not the biological father of this child. Angela sought to utilize Nebraska’s “Safe Haven” law1

 with regard to the baby; 

this child’s placement is also not at issue in these juvenile 

court actions.

Angela provided a urine sample at the time of her admission 

to the hospital prior to the baby’s birth, and that sample tested 

positive for drug use. Later, the baby’s “cord blood” tested 

positive for methamphetamine, amphetamine, “THC,” and oxycodone. Law enforcement was then contacted, because of the 

following: Angela wished to relinquish the baby, the positive 

1 Neb. Rev. Stat. § 29-121 (Reissue 2016).
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IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

drug screen, and the hospital social worker’s knowledge that 

Angela had other children at home.

The Department of Health and Human Services and law 

enforcement first contacted Angela. She admitted to using 

methamphetamine and marijuana during her pregnancy, including methamphetamine 3 to 4 days before giving birth and marijuana within a day or so of giving birth. Angela insisted that 

she had never used drugs in the family home and that Scott did 

not use methamphetamine. Angela declined to give permission 

for Kane to submit to drug testing.

The Department of Health and Human Services and law 

enforcement then made contact with Scott and Kane. At this 

time, Carter was on juvenile probation and was at a juvenile 

detention center. Scott denied methamphetamine use and, after 

a few days, gave consent for Kane to be tested.

Toenail testing was done on Kane, and an initial positive 

result for both THC and methamphetamine was returned. The 

sample was insufficient to test further for the presence of 

THC, but the presence of methamphetamine was confirmed 

by a second test. The presence of methamphetamine, but not 

amphetamine, suggests that Kane’s exposure was environmental in nature.

Scott was eventually tested. His saliva test was initially 

returned as a presumptive positive for methamphetamine. 

Scott indicated surprise at this result and stated that he had not 

used methamphetamine in a week. Scott later indicated that 

he had not used in the last 4 days. This presumptive positive 

test was sent in for laboratory testing and eventually tested 

negative. There was evidence in the record that the sample 

was initially returned to the organization that gathered the 

sample, because the wrong type of vial had been used, and 

that the organization had to “buy new vials and put the saliva 

into the vial and resend it.” Further testing was apparently not 

sought at the time, because Scott had admitted to methamphetamine use.
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IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

As a result of the safety concerns presented by both Angela’s 

and Scott’s use of methamphetamine, arrangements were made 

to place Kane and Carter, who had just returned to the family 

home, with Lily. The children were later moved to a placement 

with their maternal grandparents.

The county filed a motion for temporary custody that was 

granted ex parte on February 17, 2017. The petition to adjudicate was filed on February 21—the next business day following the Presidents Day court holiday. The record indicates that 

at least Scott was present when Kane and Carter were removed. 

The record further indicates that Scott and Angela had input 

into the initial placement of the children with their oldest 

daughter, Lily, and had visitation with the children throughout, 

initially in the family home.

Over the next few days, before the first scheduled hearing on March 8, 2017, counsel was appointed for Scott and 

Angela. On March 1, both Scott and Angela filed answers, 

through counsel, denying the allegations set forth in the petition to adjudicate.

While the first hearing was scheduled to be held March 8, 

2017, it was actually held on March 1. The journal entry for 

that hearing reflects that Scott and Angela were present without counsel and were shown a rights advisory video. No bill 

of exceptions for that hearing is in the record. A later journal 

entry, entered June 21, indicated that a protective custody and 

detention hearing had been scheduled for March 1 as well, but 

that this hearing was waived by Scott’s and Angela’s respective counsel as counsel sought to conduct more discovery and 

indicated Scott or Angela would motion for such a hearing if 

it was desired.

Various motions were filed by all parties, and multiple 

hearings were held in the time leading up to the first adjudication hearing held May 15, 2017, and eventual adjudication on 

June 30. There is no bill of exceptions in the appellate record 

for those hearings.
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IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

Angela appeals from Kane’s adjudication. The county attorney appeals and Angela cross-appeals from the order denying 

the petition to adjudicate Carter. Scott filed a notice of appeal 

from Kane’s adjudication, but did not further participate.

ASSIGNMENTS OF ERROR

Appeal in Case No. S-17-720, 

In re Interest of Kane L.

On appeal, Angela assigns that the juvenile court erred in 

(1) not ordering a protective custody and detention hearing, 

thus denying Angela due process; (2) admitting evidence of 

the baby’s cord blood test and Kane’s toenail test, because the 

county failed to establish a foundation for those results; and (3) 

finding sufficient evidence to support adjudication.

Appeal in Case No. S-17-775, 

In re Interest of Carter L.

On appeal, the county attorney assigns that the juvenile 

court erred in not adjudicating Carter.

On cross-appeal, Angela assigns that the juvenile court 

erred in (1) not ordering a protective custody and detention 

hearing, thus denying Angela due process, and (2) admitting 

evidence of the baby’s cord blood test and Kane’s toenail 

test, because the county failed to establish foundation for 

those results.

STANDARD OF REVIEW

[1] An appellate court reviews juvenile cases de novo on the 

record and reaches a conclusion independently of the juvenile 

court’s findings.2 When the evidence is in conflict, however, an 

appellate court may give weight to the fact that the lower court 

observed the witnesses and accepted one version of the facts 

over the other.3

2 In re Interest of Carmelo G., 296 Neb. 805, 896 N.W.2d 902 (2017).

3 In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).
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IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

[2] The determination of whether the procedures afforded 

to an individual comport with constitutional requirements for 

due process presents a question of law.4

[3] An appellate court reviews the trial court’s conclusions with regard to evidentiary foundation for an abuse of 

discretion.5

[4] Because authentication rulings are necessarily fact specific, a trial court has discretion to determine whether evidence 

has been properly authenticated.6 An appellate court reviews a 

trial court’s ruling on authentication for abuse of discretion.7

ANALYSIS

Pretrial Hearing.

Angela contends, on both appeal and cross-appeal, that her 

due process rights were violated when a protective custody 

and detention hearing was not held.

[5] The proper starting point for legal analysis when the 

State involves itself in family relations is always the fundamental constitutional rights of a parent.8

 The interest of parents 

in the care, custody, and control of their children is perhaps 

the oldest of the fundamental liberty interests recognized by 

the U.S. Supreme Court.9 The fundamental liberty interest of 

natural parents in the care, custody, and management of their 

child is afforded due process protection.10 Such due process 

rights include the right to be free from an unreasonable delay 

in providing a parent a meaningful hearing after the entry of 

an ex parte temporary custody order.11

4 In re Interest of Joseph S. et al., 288 Neb. 463, 849 N.W.2d 468 (2014).

5 Midland Properties v. Wells Fargo, 296 Neb. 407, 893 N.W.2d 460 (2017).

6 State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).

7 Id.

8 In re Interest of Carmelo G., supra note 2.

9 Id.

10 Id.

11 See id.
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IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

Neb. Rev. Stat. § 43-248(2) (Reissue 2016) allows the State 

to take a juvenile into custody without a warrant or order of 

the court when it appears the juvenile “is seriously endangered 

in his or her surroundings and immediate removal appears 

to be necessary for the juvenile’s protection.” However, the 

parent retains a liberty interest in the continuous custody of 

his or her child.12 An ex parte order authorizing temporary 

custody with the Department of Health and Human Services 

is permitted because of its short duration and the requirement 

of further action by the State before custody can be continued.13 But “‘the State may not, in exercising its parens patriae 

interest, unreasonably delay in notifying a parent that the 

State has taken emergency action regarding that parent’s child 

nor unreasonably delay in providing the parent a meaningful 

hearing.’”14 Therefore, following the issuance of an ex parte 

order for temporary immediate custody, “‘[a] prompt detention hearing is required in order to protect the parent against 

the risk of an erroneous deprivation of his or her parental interests.’”15

In In re Interest of R.G.,

16 we recognized that parents have 

a due process right to be free from an unreasonable delay in 

providing the parents a meaningful hearing after an ex parte 

order for immediate custody is filed. We concluded that the 

mother’s due process rights were not violated by a 14-day 

delay between the entry of an ex parte order and that of a 

detention order when she was given an opportunity to be 

heard at the detention hearing and was allowed to visit her 

children in the interim, but cautioned that this 14-day delay 

12 Id.

13 Id.

14 Id. at 813-14, 896 N.W.2d at 908 (emphasis omitted).

15 Id. at 814, 896 N.W.2d at 908.

16 In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved 

on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350 

(1998).
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IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

between the ex parte order and detention hearing was “on the 

brink of unreasonableness.”17

In In re Interest of Carmelo G.,

18 we held that a delay of 

8 months between an ex parte order and one following a 

protective custody hearing violated a mother’s due process 

rights, even though the mother met with her caseworker during that time, was represented by counsel, and various hearings were held and continuances granted with no objection by 

her counsel.

In this case, the motion for temporary custody was granted 

ex parte on February 17, 2017. The petition to adjudicate was 

filed on February 21—the next business day following the 

Presidents Day court holiday. The record shows that at least 

Scott was present when Kane and Carter were removed and 

that Scott and Angela had input into the initial placement of 

the children with their oldest daughter, Lily, and had visitation 

with the children throughout, initially in the family home.

Over the next few days before the first scheduled hearing on 

March 8, 2017, counsel was appointed for Scott and Angela. 

On March 1, both Scott and Angela filed answers through 

counsel denying the allegations set forth in the petition to 

adjudicate.

While the first hearing was scheduled for March 8, 2017, the 

record shows that it was actually held on March 1. The journal entry for that hearing reflects that Scott and Angela were 

present without counsel and shown a rights advisory video. 

No bill of exceptions for that hearing is in the record. A later 

journal entry, entered on June 21, indicated that a protective 

custody and detention hearing had been scheduled for March 

1 as well, but that it was waived by counsel, who sought to 

conduct more discovery and would motion for such a hearing 

if it was desired.

17 Id. at 423, 470 N.W.2d at 792.

18 In re Interest of Carmelo G., supra note 2.
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IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

Various motions were filed by all parties and multiple 

hearings held in the time leading up to the first adjudication 

hearing on May 15, 2017, and eventual adjudication on June 

30. There is no bill of exceptions in the record for those hearings, but from the journal entries following those hearings, it 

does not appear that detention or custody was at issue in any 

of them.

On these facts, we find no due process violation. The record 

shows that Angela was almost immediately appointed counsel 

and that counsel entered a denial of the allegations in the petition within a few days of being appointed. A March 1, 2017, 

journal entry indicates that Angela was informed of all of 

her rights, including the right to the hearing she now argues 

she did not receive. A later journal entry, entered on June 21, 

indicates that Angela waived her right to such a hearing. There 

is no indication from the record before us that Angela ever 

sought any further hearing. Nor does Angela deny that the June 

21 journal entry accurately sets forth the events surrounding 

that March 1 hearing.

The cases cited by Angela in support of her conclusion that 

she was denied due process are inapplicable. In In re Interest 

of Carmelo G., the mother clearly sought a detention hearing, 

and while one was held, it took approximately 7 months and 

five separate hearings to receive all of the evidence, and an 

additional 49 days for the court to issue its detention order following the receipt of evidence. In this case, the only evidence 

in the record was that both Scott and Angela were offered a 

detention hearing on March 1, 2017, but waived the hearing 

and never sought another one. There is no merit to this assignment of error.

Foundation for Cord Blood 

and Toenail Tests.

Angela argues that the juvenile court erred in admitting 

the results from the cord blood and toenail tests, because the 

county did not establish proper foundation for the testing. 
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IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

Specifically, Angela notes that the county did not establish a 

chain of custody for the cord blood and toenail tests. We note, 

as did the district court, that Angela does not argue that her 

Sixth Amendment right to confrontation was violated with 

regard to the admission of these test results.

[6-8] Where objects pass through several hands before being 

produced in court, it is necessary to establish a complete chain 

of evidence, tracing the possession of the object or article to 

the final custodian; and if one link in the chain is missing, 

the object may not be introduced in evidence.19 Objects which 

relate to or explain the issues or form a part of a transaction are 

admissible in evidence only when duly identified and shown to 

be in substantially the same condition as at the time in issue.20

It must be shown to the satisfaction of the trial court that no 

substantial change has taken place in an exhibit so as to render 

it misleading.21 Important in determining the chain of custody 

are the nature of the evidence, the circumstances surrounding 

its preservation and custody, and the likelihood of intermeddlers tampering with the object.22 Whether there is sufficient 

foundation to admit physical evidence is determined on a caseby-case basis.23 Our review concerning the admissibility of 

such evidence is for an abuse of discretion.24

With respect to the toenail test, Angela argues that while the 

person who collected the sample and the director of the laboratory that did the testing both testified, there was no testimony 

from the individual who actually conducted the test, and that 

such is insufficient to show foundation for the admissibility of 

the results. We disagree.

19 State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).

20 Id.

21 Id.

22 Id.

23 Id.

24 See id.
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IN RE INTEREST OF KANE L. & CARTER L.

Cite as 299 Neb. 834

The individual who collected the sample testified at the 

hearing as to the procedures she followed when collecting the 

toenail sample. That individual indicated that she packaged the 

sample properly and mailed it to the testing laboratory. And 

the director of that laboratory testified as to the procedures 

followed at the laboratory, including the receipt of the sample 

and its testing. Given this testimony, we cannot conclude that 

the juvenile court abused its discretion in determining that “no 

substantial change ha[d] taken place in an exhibit so as to render [the results] misleading”25 and in admitting the results.

There is no merit to Angela’s contentions regarding the toenail testing.

With respect to the cord blood test, Angela contends that the 

doctor who ordered the test testified, but no one testified to 

the collection of the sample or to the test procedure itself. We 

need not address this assertion, because even assuming that the 

evidence establishing the chain of custody for the cord blood 

was insufficient, the admissibility of those results, on these 

facts, was not reversible error.

The cord blood test results were relevant to show that 

Angela had used drugs, notably methamphetamine. Angela’s 

hospital drug screen was positive, and she admitted to the use 

of methamphetamine. As such, any error in admitting the positive cord blood test results was harmless.

Error in Adjudicating Kane.

Angela also assigns that the juvenile court erred in adjudicating Kane. She contends that the county failed to show an 

evidentiary nexus between the use of methamphetamine and a 

risk of harm that would support adjudication.

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 Neb. Rev. Stat. § 43-247 (Reissue 

25 See id. at 431, 803 N.W.2d at 783.
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Cite as 299 Neb. 834

2016).26 Section 43-247(3)(a) 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.”

[9,10] The purpose of the adjudication phase is to protect 

the interests of the child.27 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.28 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.29 The State must prove 

such allegations by a preponderance of the evidence.30

The results of Kane’s toenail testing show that Kane has 

been environmentally exposed to methamphetamine. This suggests that either Scott or Angela, or both, have used the 

drug around Kane. Several witnesses specifically testified that 

Scott’s and Angela’s use of methamphetamine was a safety 

concern. This was sufficient to create the nexus that Angela 

claims is missing.

The State has proved that Kane is a child under § 43-247(3)(a) 

because of his parents’ methamphetamine use. This creates a 

safety concern for Kane’s being in the family home and suggests that Kane should be removed from parental placement 

and custody until the situation is safe for Kane to return.

There is no merit to this assignment of error.

Error in Not Adjudicating Carter.

The county assigns, in its appeal from the juvenile court’s 

failure to adjudicate Carter, that it was error to not adjudicate 

26 In re Interest of Justine J. et al., 286 Neb. 250, 835 N.W.2d 674 (2013).

27 Id.

28 Id.

29 Id.

30 See id.
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Carter, because he was exposed to the same threat of present 

harm as Kane.

It is true, as the juvenile court noted, that Carter was in a 

detention center during the events immediately leading up to 

the adjudication in this case. But Carter returned shortly before 

the children were removed from the home. The concern leading 

up to that removal and later adjudication was that it was unsafe 

for the children to be in the home at that time and into the 

future. The fact that Carter was not in the home in the immediate past has no bearing on whether he would be exposed to 

harm in Scott and Angela’s care going forward.

We further note that there is testimony from law enforcement at the hearings in these cases that Carter was placed 

on probation in part because of positive drug screens of his 

own. Given that the reason for adjudication is alleged to be 

parental drug use, such testimony further supports Carter’s 

adjudication.

The State must establish that without intervention, there is 

a definite risk of future harm; on these facts as established by 

the State, it has met that burden. We therefore conclude that 

the juvenile court erred in not adjudicating Carter.

CONCLUSION

In case No. S-17-720, the decision of the juvenile court 

adjudicating Kane is affirmed. In case No. S-17-775, the 

decision not adjudicating Carter is reversed and the cause is 

remanded for further proceedings.

Judgment in No. S-17-720 affirmed.

Judgment in No. S-17-775 reversed, and cause

remanded for further proceedings.