IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

IN RE INTEREST OF TYERCA R. ET AL.

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

IN RE INTEREST OF TYERCA R. ET AL., CHILDREN UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLANT,

V.

KATHRYN H., APPELLEE.

Filed October 29, 2013. Nos. A-13-368 through A-13-370.

Appeal from the County Court for Box Butte County: RUSSELL W. HARFORD, Judge. 

Affirmed.

K.J. Hutchinson, Box Butte County Attorney, for appellant.

Michael T. Varn for appellee.

Jean Rhodes, guardian ad litem.

Irwin, PIRTLE, and BISHOP, Judges.

BISHOP, Judge.

The State filed separate petitions alleging that Tyerca R., Angel R., and Zekyel H. were 

within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008). The county court for Box 

Butte County, sitting as a juvenile court, dismissed the juvenile petitions after finding that the 

petitions were not sufficiently pled to put the children’s biological mother, Kathryn H., on notice 

that it was her behavior, rather than her live-in boyfriend’s behavior, that was going to be at issue 

at the adjudication hearing. The State appeals. On our order, these three appeals have been 

consolidated. We affirm the juvenile court’s decision in all three cases.

BACKGROUND

Kathryn is the mother of Angel, born in January 2008; Tyerca, born in November 2008; 

and Zekyel, born in October 2011. The children were removed from Kathryn’s care on July 21, 

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2012, and placed into emergency protective custody amidst allegations that Tyerca and Angel 

had been abused by Kathryn’s live-in boyfriend, Andrew L.

On July 23, 2012, before a juvenile petition had been filed, a hearing was held so that the 

State could “give the Court . . . information for the ex parte order so that these children can 

remain in the Department of Health and Human Services, who have custody of the children right 

now.” At the hearing, the State called Colleen Busch, an investigator with the Alliance Police 

Department, “to swear to her affidavit as to the basis for [the children’s] removal.” Busch’s 

testimony consisted of the following: The children were taken into emergency protective custody 

on July 21 because of suspected child abuse. Tyerca and Angel were covered in bruises. Busch 

interviewed both Tyerca and Angel, and one of the girls told her, “Mom said not to tell because 

the police will arrest dad.” Tyerca and Angel stated that Andrew disciplines them by giving them 

a choice of two out of three punishments: slap, spank, or choke. Angel told Busch that Andrew 

had punished her on July 20 by slapping and choking her. Angel also told Busch that Kathryn 

was at work when Andrew punished her. The doctor who examined the girls described the 

injuries as a “classic case of extreme child abuse.” Andrew was arrested on charges of felony 

child abuse and strangulation. The girls were removed, but the Department of Health and Human 

Services (DHHS) placed the children back with Kathryn, with a worker who was supposed to be 

in the home round-the-clock. At the end of the hearing, the juvenile court orally pronounced that 

the children should remain in the custody of DHHS “with placement they deem appropriate, 

which, I guess, is back in the family home with the mother.” The next day, July 24, a written 

journal entry and order was filed in each case reflecting the court’s oral pronouncement. Busch’s 

affidavit, titled “Affidavit in Support of Custody and Petition,” was also filed in all three cases 

on July 24--the affidavit filed in each case was identical, and all three children’s names appeared 

in the caption of the affidavit.

Also on July 24, 2012, the State filed three separate petitions alleging that the children 

were within the meaning of § 43-247(3)(a). For Tyerca and Angel, the State’s petitions alleged 

that each girl “is a Juvenile who lacks proper parental care by reason of the fault or habits of his 

or her parent, guardian, or custodian, to wit: by being slapped, spanked, or choked by her 

custodian, Andrew . . . while in his care.” For Zekyel, the State’s petition alleges that he “is a 

Juvenile who lacks proper parental care by reason of the fault or habits of his or her parent, 

guardian, or custodian, to wit: by living in a home where child abuse is occurring.” All three 

petitions list Kathryn as the “Parent of the Juvenile” and Andrew as the “Guardian of the 

Juvenile,” and reflect that Kathryn and Andrew were living at the same address.

In Busch’s “Affidavit in Support of Custody and Petition,” she detailed her investigation 

and that of other law enforcement agencies regarding the welfare of Tyerca, Angel, and Zekyel. 

The affidavit indicated that on July 21, 2012, Officer M. Perry went to Kathryn’s residence on a 

welfare check after receiving a report that two girls had been observed to have multiple areas of 

bruising. With Kathryn present, Perry observed numerous bruises on both Tyerca and Angel and 

asked them how they got the bruises. The girls told Perry that they had been hitting each other. 

When Kathryn left the room, Angel showed Perry a bruise on her neck and Perry asked what had 

happened. In response, Angel placed both of her hands around her neck and demonstrated a 

choking hold. Perry then asked Angel, “‘[W]ho did that?’” Angel replied, “‘Daddy,’” and 

pointed to the hallway where Andrew was standing. Kathryn was told to take the children to the 

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police department. At the police department, Busch saw the children and determined that a 

forensic interview needed to be completed. Busch interviewed Angel, who started out by 

whispering that “she’s not supposed to tell.” Busch reassured Angel that it was okay to tell, and 

then Angel disclosed that Andrew punishes her and Tyerca when they are bad by giving them a 

choice of two punishments out of three: slap, spank, or choke. Angel stated that while at home on 

July 20, she got into trouble for fighting with her sister and Andrew told her to pick her 

punishments. Angel stated that she picked choking and spanking. According to Busch’s affidavit, 

Angel stated that when Andrew choked her, “‘it hurt and made her cry.’” Angel said that the 

punishments happen while her mother is at work. Angel stated that Tyerca is also given these 

punishments when Tyerca is “naughty.” When asked for further details, Angel said her mother 

told her “‘not to tell’” or their “‘father’” would go to jail. Busch interviewed Tyerca, who was 

able to articulate that she was also punished in the same manner as Angel. Tyerca indicated that 

“‘Daddy’” did the punishments.

Busch’s affidavit further stated that she observed bruises on the girls’ faces, heads, arms, 

hands, and legs and that the bruises appeared to be in different stages of healing. Busch stated 

that Andrew was taken into custody for felony child abuse. When Andrew was arrested, Kathryn 

stated that she never saw Andrew hit the children and that Andrew would “‘never do that.’” The 

affidavit goes on to state that Kathryn continued to claim that the girls inflicted the injuries on 

each other and that Kathryn stated that when Andrew bonded out, he would continue to live with 

her and all three children.

Busch’s affidavit also stated that the girls were taken to a hospital for medical treatment 

and examination. The girls were x-rayed and photographed. She then described the bruising on 

the girls in more detail. Busch stated that the doctor who examined the girls advised that “the 

injuries were clearly a result of child abuse.”

Busch’s affidavit set forth her belief that Tyerca and Angel had been subjected to child 

abuse by Andrew and that Zekyel resided with his sisters who have been victims of child abuse. 

Busch stated that the explanation of injuries by Kathryn is not consistent with the forensic 

interview and the medical evidence. Busch stated that Tyerca and Angel had been cruelly 

punished while in the care and custody of Andrew and Kathryn, which punishment is detrimental 

to the life and physical and mental health of Tyerca and Angel. Busch stated that Kathryn had 

neglected to protect and provide proper care for the children.

From July 21 through 27, 2012, the children remained in Kathryn’s home with a 

caseworker present round-the-clock. However, on July 27, the children were placed in foster 

care. The record reflects that the children were moved to foster care, because Kathryn was 

visiting Andrew in jail and because DHHS felt that Kathryn would not change.

On October 18, 2012, a hearing was held on Kathryn’s motion for change of placement, 

wherein Kathryn requested that the children be placed back into her home. Kathryn and her 

counsel were present at the hearing. While questioning a DHHS worker, the State asked, “And 

the allegations in this case are that the mother failed to protect them from Andrew . . . who is 

living in the home; is that right?” After testimony from the DHHS worker and Kathryn, the 

juvenile court denied Kathryn’s motion for a change of placement.

A consolidated adjudication hearing was held on February 11, 2013. Kathryn was present 

at the hearing with her counsel. Andrew was neither present nor represented by counsel at the 

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adjudication hearing. The State called several witnesses who testified to the severity of the girls’ 

bruising, as well as to Kathryn’s claims that the girls bruised each other. After the State rested its 

case, Kathryn moved to dismiss the petitions for failure to prove a prima facie case on each 

petition. Kathryn’s motion was denied. Kathryn then offered into evidence certified copies of all 

three juvenile petitions, which were received without objection. Kathryn renewed her motion to 

dismiss, alleging that the petitions were deficient. Kathryn argued that the petitions regarding the 

girls made no allegations that she did anything wrong. Kathryn also argued that the evidence was 

insufficient to adjudicate Zekyel, because the only allegation in his petition was that he was 

“living in a home where child abuse is occurring,” but there was no evidence presented at the 

adjudication hearing that child abuse was occurring in the home. After hearing closing 

arguments, the juvenile court took the matter under advisement.

In its order filed on April 18, 2013, the juvenile court dismissed the juvenile petitions 

without prejudice after finding that the petitions did not provide Kathryn with proper notice and 

thus did not provide her with due process. The juvenile court stated:

The issue in this case, when considering the opinion of the Court of Appeals in [In 

re Interest of] Taeven Z.[, 19 Neb. App. 831, 812 N.W.2d 313 (2012),] and [In re Interest 

of] Christian L.[, 18 Neb. App. 276, 780 N.W.2d 39 (2010),] is whether the juvenile 

petitions filed in these cases puts Kathryn . . . on notice that each of her children lacked 

proper parental care and each was at risk of harm because of the fault or habits of 

Kathryn . . . .

The juvenile petitions in Tyerca’s and Angel’s case allege only that these children 

had been “slapped, spanked, or choked by her custodian, Andrew . . . while in his care.” 

. . . Nothing has been pled by the State that would give Kathryn . . . any indication as to 

what it is that she didn’t do to provide necessary parental care and that each of these two 

children were at risk of harm through her faults or habits. The juvenile petition 

specifically alleges behavior by Andrew . . . only, and only while in his care, and does not 

allege that either Kathryn . . . knew of the abuse and allowed or condoned it, or that she 

should have taken action to investigate the cause of the bruising on each child when she 

first made observation of that bruising. Because the petition did not allege specific facts

giving her notice as to what it is that she did or didn’t do, her motion for a directed 

verdict of dismissal is granted.

The juvenile petition in Zekyel’s case alleges that Zekyel is also subject to the 

jurisdiction of the Court because he is “living in a home where child abuse is occurring.” 

The Petition does not allege who is committing the child abuse, nor does it allege that his 

siblings are being abused. The Court knows, because Zekyel lives in the same home as 

Tyerca and Angel, and because all three of these petitions were filed on the same day, 

based on the same set of facts, that [Andrew] was alleged to have abused Tyerca and 

Angel. It is also reasonable for the child’s mother, Kathryn[,] to also assume that it is 

[Andrew] that is the focus of this juvenile proceeding. Again, the State has not pled facts 

that could be reasonably construed by Kathryn . . . to put her on notice that it is her 

behavior or lack of behavior that causes Zekyel to be at risk of harm. For the same 

reasons, the Court is granting the mother’s motion for directed verdict and dismissing this 

juvenile petition.

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The juvenile court dismissed the juvenile petitions “without prejudice to any new proceedings if 

the facts at the time of filing of new proceedings justify such proceedings and if the allegations 

properly provide Kathryn . . . with due process.” Rather than file new petitions taking into 

consideration the deficiencies noted by the judge in the order, the State elected instead to appeal 

to this court.

ASSIGNMENTS OF ERROR

The State assigns that the juvenile court erred in (1) ignoring the “Affidavit[s] in Support 

of Custody and Petition” filed in each case that set forth in particularity the facts and allegations 

against Kathryn; (2) granting directed verdicts; (3) dismissing the State’s petitions without 

prejudice; (4) failing to make a finding that the evidence presented at the adjudicatory hearing 

was sufficient to adjudicate the children under § 43-247(3)(a); (5) failing to admit exhibit 145, 

Kathryn’s testimony as a witness from a separate criminal proceeding; and (6) failing to promote 

and protect the juveniles’ best interests.

STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches its 

conclusions independently of the juvenile court’s findings. In re Interest of Candice H., 284 Neb. 

935, 824 N.W.2d 34 (2012).

In reviewing questions of law arising under the Nebraska Juvenile Code, an appellate 

court reaches conclusions independent of the lower court’s rulings. In re Interest of Candice H., 

supra.

Statutory interpretation presents a question of law, which an appellate court reviews 

independently of the lower court’s determination. In re Interest of Erick M., 284 Neb. 340, 820 

N.W.2d 639 (2012).

ANALYSIS

Nebraska’s pleading system has many purposes and functions, not the least of which is to 

provide adequate notice as to what allegations a party will be required to meet at trial. In re 

Interest of Clifford M., 6 Neb. App. 754, 577 N.W.2d 547 (1998). When the State seeks to have a 

child adjudicated under § 43-247, Neb. Rev. Stat. § 43-274 (Reissue 2008) is the governing 

statute for how the juvenile petition should be pled. Section 43-274(1) states in relevant part:

The county attorney, having knowledge of a juvenile in his or her county who appears to 

be a juvenile described in subdivision (1), (2), (3), or (4) of section 43-247, may file with 

the clerk of the court having jurisdiction in the matter a petition in writing specifying 

which subdivision of section 43-247 is alleged, setting forth the facts verified by 

affidavit, and requesting the court to determine whether support will be ordered pursuant 

to section 43-290. Allegations under subdivisions (1), (2), and (4) of section 43-247 shall 

be made with the same specificity as a criminal complaint. It shall be sufficient if the 

affidavit is based upon information and belief.

The State argues that Busch’s “Affidavit in Support of Custody and Petition” was filed in 

each case “simultaneously” with the petitions. The State argues that the petitions alleged the 

specific section, § 43-247(3)(a), under which the jurisdiction of the juvenile court was sought 

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and that the affidavits provided specific facts, information, and belief as to what fault or habits of 

Kathryn put the children at risk. Thus, the State’s argument is that the petitions and affidavits 

collectively meet the statutory requirements of § 43-274 and provided proper notice to Kathryn. 

The State asserts that it was error for the juvenile court to not consider the petition and the 

affidavit together, since each document was file stamped on the same day. The State does not 

dispute the absence of specific allegations toward Kathryn in the petitions; rather, the State 

contends that the affidavits filed the same day provide the necessary facts.

Absent a statutory indication to the contrary, we give words in a statute their ordinary 

meaning. In re Interest of Erick M., supra. We will not look beyond the statute to determine the 

legislative intent when the words are plain, direct, or unambiguous. Id. The plain language of 

§ 43-274 indicates that the petition is to set forth the facts. The affidavit simply verifies the facts 

set forth in the petition, and the affidavit need only be based on “information and belief.” 

Accordingly, we look solely to the petition to determine whether Kathryn was provided proper 

notice.

In In re Interest of Taeven Z., 19 Neb. App. 831, 812 N.W.2d 313 (2012), this court did 

an indepth analysis of the § 43-274 pleading requirements and standards for juvenile cases. In In 

re Interest of Taeven Z., the State focused on the portion of § 43-274 that states “[a]llegations 

under subdivisions (1), (2), and (4) of section 43-247 shall be made with the same specificity as a 

criminal complaint.” The State suggested that the exclusion of subsection (3) from that language 

meant that less specificity was needed for petitions brought under subsection (3). This court 

came to the opposite conclusion. We said:

The mandate that allegations under § 43-247(1), (2), and (4) be made with the 

same specificity as a criminal complaint merely reconciles the pleading practice 

regarding juvenile offenders with that of adult criminals. And with respect to adults, it 

has long been held that it is generally sufficient if the information describes the crime in 

the language of the statute. See Leisenberg v. State, 60 Neb. 628, 84 N.W. 6 (1900). 

“Nebraska criminal procedure does not require a comprehensive and particularized 

factual description of elements for the offense charged in the information or complaint 

against a defendant.” State v. Schaaf, 234 Neb. 144, 149, 449 N.W.2d 762, 766 (1989). 

We do not view the criminal pleading requirement as calling for “higher specificity.” To 

the contrary, pleading in the language of the statute represents a conclusory rather than a 

strictly fact-based form of pleading.

Section 43-247(3) cases, on the other hand, are not comparable to adult criminal 

cases, and the pleading standard for such cases stems from the requirements of due 

process in this context. As we quoted above, § 43-274(1) requires a § 43-247(3) petition 

to “set[] forth the facts verified by affidavit.” The factual allegations of a petition seeking 

to adjudicate a child must give a parent notice of the bases for seeking to prove that the 

child is within the meaning of § 43-247(3)(a). See In re Interest of Christian L., 18 Neb. 

App. 276, 780 N.W.2d 39 (2010).

In re Interest of Taeven Z., 19 Neb. App. at 836-37, 812 N.W.2d at 319. And “notice is a 

requirement of due process rather than a matter of jurisdiction.” Id. at 838, 812 N.W.2d at 320.

The issues in a case are framed by the pleadings. Blaser v. County of Madison, 285 Neb. 290, 

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826 N.W.2d 554 (2013); In re Interest of Sabrienia B., 9 Neb. App. 888, 621 N.W.2d 836 

(2001).

In the context of both adjudication and termination hearings, procedural due process 

includes notice to the person whose right is affected by the proceeding; reasonable opportunity to 

refute or defend against the charge or accusation; reasonable opportunity to confront and 

cross-examine adverse witnesses and present evidence on the charge or accusation; 

representation by counsel, when such representation is required by the Constitution or statutes; 

and a hearing before an impartial decisionmaker. In re Interest of Mainor T. & Estela T., 267 

Neb. 232, 674 N.W.2d 442 (2004). An adjudication hearing is the trial state of a juvenile 

proceeding, in which the State must prove its allegations in the petition by a preponderance of 

the evidence. Id. Adjudication is a crucial step in proceedings possibly leading to the termination 

of parental rights. Id. Furthermore, parents have a fundamental liberty interest at stake, and the 

State cannot adjudicate a child except by procedures which meet the requisites of the Due 

Process Clause. In re Interest of Mainor T. & Estela T., supra.

In In re Interest of Christian L., 18 Neb. App. 276, 780 N.W.2d (2010), the operative 

petition indicated that the grounds for adjudicating the child were that the condition of the house 

and the lack of appropriate food in the house placed him at risk of harm and were the fault of his 

mother. As a result, the mother was on notice that the condition of her house and the 

appropriateness of food in the house and those items’ impact on the child’s well-being would be 

at issue, and she was on notice to be prepared to defend against those actions. However, the bulk 

of the evidence presented by the State to the juvenile court was concerned with the mother’s 

mental health, not with the condition of the house, the appropriateness of food available in the 

house, or either’s relationship to the child’s well-being. We concluded that the mother was not 

properly placed on notice that her mental health would be a basis for seeking to prove the 

allegation that the child lacked proper parental care and was at risk of harm through the mother’s 

fault. We further found that the remaining evidence in the record was not sufficient to 

demonstrate that the child was at risk of harm based on the condition of the house or the lack of 

appropriate food. We therefore directed the juvenile court to dismiss the proceedings without 

prejudice.

In the instant case, the petitions regarding Tyerca and Angel did not allege facts 

providing notice to Kathryn that her behavior was at issue; rather, the allegations focused on her 

live-in boyfriend, Andrew. The only allegation in each petition was that Tyerca and Angel were 

juveniles who “lack[] proper parental care by reason of the fault or habits of his or her parent, 

guardian, or custodian, to wit: by being slapped, spanked, or choked by her custodian, Andrew 

. . . while in his care.” The allegations were directed solely at Andrew, not Kathryn. Therefore, 

the petitions were insufficient to put Kathryn on notice that her behavior would be at issue at the 

adjudication hearing. Accordingly, the juvenile court did not err in dismissing the State’s 

petitions regarding Tyerca and Angel without prejudice.

The juvenile court also found the petition regarding Zekyel to be insufficient. The only 

allegation in the State’s petition is that Zekyel “is a Juvenile who lacks proper parental care by 

reason of the fault or habits of his or her parent, guardian, or custodian, to wit: by living in a 

home where child abuse is occurring.” The petition lists Kathryn as the “Parent of the Juvenile” 

and Andrew as the “Guardian of the Juvenile,” and reflects that Kathryn and Andrew were living 

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at the same address. The petition regarding Zekyel contains one very broad allegation, with 

nothing specifically mentioned about Kathryn’s actions. As stated by the juvenile court:

The Petition does not allege who is committing the child abuse, nor does it allege that his 

siblings are being abused. The Court knows, because Zekyel lives in the same home as 

Tyerca and Angel, and because all three of these petitions were filed on the same day, 

based on the same set of facts, that [Andrew] was alleged to have abused Tyerca and 

Angel.

We consider Zekyel’s petition in context: Zekyel’s petition was filed on the same day as Tyerca 

and Angel’s petitions were filed; all three children resided in the same home; and as stated 

previously, the other petitions alleged that Tyerca and Angel were abused by Andrew, and the 

allegations in those petitions were directed solely at Andrew. Therefore, we agree with the 

juvenile court’s finding that it was reasonable for Kathryn to believe that Andrew was the focus 

of the juvenile proceeding regarding Zekyel, not her. Under the circumstances of this case, we 

find that the State did not plead facts that put Kathryn on notice that her behavior would be at 

issue at the adjudication hearing regarding Zekyel. Accordingly, the juvenile court did not err in 

dismissing the State’s petition regarding Zekyel without prejudice.

Having already found that the petitions were properly dismissed for failure to put 

Kathryn on notice, we need not address the State’s remaining assignments of error regarding the 

sufficiency of the evidence presented at the adjudication hearing and the admissibility of exhibit 

145. See In re Trust Created by Hansen, 281 Neb. 693, 798 N.W.2d 398 (2011) (appellate court 

is not obligated to engage in analysis that is not necessary to adjudicate case and controversy 

before it).

In summary, the State failed to allege facts in the petitions filed that were sufficient to put

Kathryn on notice that her behavior, rather than her boyfriend’s behavior, would be at issue. 

Pursuant to § 43-274(1), the petition is to set forth facts which are verified by affidavit. Although 

the facts asserted in the affidavit cause this court grave concerns about Kathryn’s ability and/or 

willingness to protect her children from abuse by others, the law requires that proper notice be 

afforded to parents in these cases by setting forth sufficient facts in the petition, which are then 

verified by affidavit. Adjudication is a crucial step in proceedings possibly leading to the 

termination of parental rights. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 

442 (2004). Parents have a fundamental liberty interest at stake, and the State cannot adjudicate a 

child except by procedures which meet the requisites of the Due Process Clause. In re Interest of 

Mainor T. & Estela T., supra.

CONCLUSION

For the reasons stated above, we agree with the juvenile court that the juvenile petitions 

did not provide Kathryn with the requisite due process. Accordingly, we affirm the juvenile 

court’s order dismissing the juvenile petitions without prejudice to any new proceedings if the 

facts at the time of the filing of new proceedings justify such proceedings and if the allegations 

properly provide Kathryn with due process.

AFFIRMED.

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