In re Interest of Christian L.

for tampering with physical evidence. Therefore, we affirm
Vasquez-Arenivar’s conviction and sentence for possession of
a controlled substance with the intent to deliver, and we
vacate his conviction and sentence for tampering with physi-
cal evidence.
A ffirmed in pArt, And in pArt vAcAted.
in re interest of christiAn L.,
A chiLd under 18 yeArs of Age .
stAte of nebrAskA, AppeLLee ,
v. peggy L., AppeLLAnt.
780 N.W.2d 39
Filed February 16, 2010. 	No. A-09-670.
1. Parental Rights: Constitutional Law: Due Process. In the context of both
adjudication and termination of parental rights hearings, procedural due process
includes notice to the person whose right is affected by the proceeding; reason-
able opportunity to refute or defend against the charge or accusation; reasonable
opportunity to confront and cross-examine adverse witnesses and present evi-
dence on the charge or accusation; representation by counsel, when such rep-
resentation is required by the Constitution or statutes; and a hearing before an
impartial decisionmaker.
2. Juvenile Courts: Trial: Proof. An adjudication hearing is the trial stage of a
juvenile proceeding, in which the State must prove its allegations in the petition
by a preponderance of the evidence.
3. Parental Rights. Adjudication is a crucial step in proceedings possibly leading to
the termination of parental rights.
4. Parental Rights: Constitutional Law: Due Process. Parents have a fundamental
liberty interest at stake, and the State cannot adjudicate a child except by pro-
cedures which meet the requisites of the Due Process Clause.
5. Parental Rights. Courts should be reluctant to accept any finding of a fact which
is based upon the premise that if a person suffers from recognized medical condi-
tions, such as manic depression, major depression, and seizures, then that parent
is not going to give his or her children proper care.
Appeal from the Separate Juvenile Court of Douglas County:
eLizAbeth crnkovich, Judge. Reversed and remanded with
directions to dismiss.
Julie A. 	Frank, 	of 	Frank 	& 	Gryva, 	P.C., 	L.L.O., 	for
appellant.
276 	18 NebRASkA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:12 AM CST

Donald W. kleine, Douglas County Attorney, and Paulette
Merrell for appellee.
Regina T. Makaitis, guardian ad litem for appellant.
irwin, sievers, and cArLson, Judges.
irwin, Judge.
I. INTRODUCTION
Peggy L. is appealing the order adjudicating her minor
child, Christian L., to be a child within the jurisdiction of
the juvenile court. The State’s petition alleged specifically
that Christian lacked proper parental care through the fault or
habits of Peggy and that Christian was at risk of harm. The
only factual grounds necessitating adjudication, as stated in
the petition, were that the home was in a “filthy, unwholesome
condition” and that the home “did not contain enough food”
for Christian. There was no mention in the petition of Peggy’s
mental health.
Peggy argues that her due process rights were violated when
the juvenile court adjudicated Christian based on substan-
tial evidence and testimony concerning her mental health, an
issue not raised by the operative petition. The State’s position
on appeal is that given the above allegation in the petition,
“[Peggy] had sufficient notice that her mental health was a
potential issue at the adjudication since it was a possible cause
for the dirty home and it potentially placed Christian at risk for
harm.” brief for appellee at 13.
We conclude that the State made Peggy’s mental health sta-
tus a focus of its attempt to prove the allegation that Christian
was at risk and lacked proper parental care through the fault
of Peggy. The allegations of the petition, however, concerned
only the condition of the house and the lack of appropriate
food in the house, and did not place Peggy on notice that
her mental health was going to be an issue. We conclude that
an allegation that Christian was at risk because of Peggy’s
“fault” did not sufficiently encompass an assertion that a
mental health condition she may have suffered from consti-
tuted fault-based conduct on her part requiring adjudication of
IN Re INTeReST OF ChRISTIAN L. 	277
Cite as 18 Neb. App. 276

Christian. We reverse, and remand with directions to dismiss
without prejudice.
II. bACkGROUND
The events giving rise to this action occurred in January
2009, when a Douglas County sheriff’s deputy was dispatched
to Peggy’s residence. The officer discovered that the house
“was in total disarray.” The officer’s testimony and photo-
graphic evidence received by the court indicate that “the house
was just totally cluttered.” The officer testified that there was
an area in the living room set off with a series of “baby gates,”
and the photographs reveal that such area generally contained
toys and items for Christian, who was at the time approxi-
mately 16 months of age. The officer also testified that he did
not observe “any baby food in the house or any food that was
readily available to a child.”
The officer had Peggy transported to a hospital for a mental
health observation. Christian was placed in “emergency pro-
tective custody” because of a belief that it was not safe for
Christian to be in the house. The officer testified that “[d]ue
to the conditions of the house” and “due to [Peggy’s] mental
capacity that day,” there was a risk for harm to the child.
On January 2, 2009, a petition was filed seeking to have
Christian adjudicated as a child within the meaning of Neb.
Rev. Stat. § 43-247(3)(a) (Reissue 2008). The petition specifi-
cally alleged that Christian lacked proper parental care through
the fault or habits of Peggy and that Christian was at risk of
harm. The petition indicated, as factual grounds for the allega-
tions, the filthy condition of the house and the lack of appropri-
ate food for Christian in the house. There was no mention in
the petition of Peggy’s mental health.
The adjudication hearing was held on March 31 and June
26, 2009. During the course of the hearing, the court received
testimony from the officer who responded to Peggy’s resi-
dence, a caseworker, and a social worker from the hospital who
conducted a psychological evaluation of Peggy. More specific
details concerning the testimony of these witnesses will be set
forth in the discussion section of this opinion, below. As noted
more fully below, substantial testimony was provided, over
278 	18 NebRASkA APPeLLATe RePORTS

repeated objections of Peggy’s counsel, concerning Peggy’s
mental health and its impact on whether Christian was at risk
of harm.
At the conclusion of the adjudication hearing, the juvenile
court made a finding on the record that the allegations of the
petition were true. The court noted that Peggy’s mental health
may have contributed to the condition of the house, but also
acknowledged that there had been no evidence presented in
that regard. On June 30, 2009, the court entered an adjudica-
tion order finding the allegations of the petition to be true. This
appeal followed.
III. ASSIGNMeNTS OF eRROR
Peggy asserts, among her assignments of error, that her
due process rights were violated when the juvenile court
allowed substantial evidence and testimony concerning her
mental health, an issue not raised by the operative petition, and
that absent the evidence and testimony concerning her mental
health, there was insufficient evidence to support the adjudica-
tion order. because our discussion of these assertions resolves
the appeal, we will not further or more specifically address her
remaining assignments of error.
IV. ANALYSIS
Peggy asserts that the juvenile court erred in receiving,
over objection, testimony concerning Peggy’s mental health.
Peggy asserts that the operative petition made no mention of
her mental health as an issue or a ground for the sought-after
adjudication and that allowing her mental health to become a
focal point of the adjudication hearing violated her due process
rights. She also asserts that, absent the testimony concerning
her mental health, there was insufficient evidence to support
the adjudication order. We agree.
[1-4] 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 oppor-
tunity 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;
IN Re INTeReST OF ChRISTIAN L. 	279
Cite as 18 Neb. App. 276

representation by counsel, when such representation is required
by the Constitution or statutes; and a hearing before an impar-
tial decisionmaker. In re Interest of Heather R. et al., 269 Neb.
653, 694 N.W.2d 659 (2005); In re Interest of Mainor T. &
Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004). An adjudica-
tion hearing is the trial stage of a juvenile proceeding, in which
the State must prove its allegations in the petition by a prepon-
derance of the evidence. In re Interest of Mainor T. & Estela T.,
supra. Adjudication is a crucial step in proceedings possibly
leading to the termination of parental rights. Id. Parents have
a fundamental liberty interest at stake, and the State cannot
adjudicate a child except by procedures which meet the requi-
sites of the Due Process Clause. In re Interest of Mainor T. &
Estela T., supra.
In this case, the operative petition indicated that the grounds
for adjudicating Christian 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 Peggy. As a result, Peggy was on
notice that the condition of her house and the appropriateness
of food in the house and those items’ impact on Christian’s
well-being would be at issue, and she was on notice to be pre-
pared to defend against those assertions.
A review of the record presented to the juvenile court,
however, reveals that the bulk of the evidence presented by
the State was concerned with Peggy’s mental health, not
with the condition of the house, the appropriateness of food
available in the house, or either’s relationship to Christian’s
well-being.
The officer who responded to Peggy’s house testified about
the condition of the house and described it as cluttered. he
also testified that he did not observe any baby food in the
house. A series of photographs was also received depicting the
clutter throughout the house. his testimony, however, did not
indicate that Christian was in any danger of harm because of
the condition of the house or the food available in the house.
Although he testified that Christian was placed in emergency
custody, he testified that this was done because of “the condi-
tions of the house . . . and due to [Peggy’s] mental capacity
that day.”
280 	18 NebRASkA APPeLLATe RePORTS

The officer did not testify that the child was physically in
the cluttered portion of the house or near any dangerous items
depicted in the photographs. The testimony of the caseworker,
for example, indicated that Christian generally remained in the
play area (which the officer testified was set apart from the rest
of the house by baby gates) and that the report the caseworker
received stated the play area was “clean.” One photograph
depicts a pair of scissors lying on the floor in the play area,
but there was no testimony concerning whether the scissors
were sharp and dangerous or safety scissors, and there was no
testimony to indicate that the child was ever in the play area at
the same time as the scissors. Another photograph depicts an
open hunting-style knife somewhere in the house, but there is
no testimony concerning where the knife was or whether it was
located anywhere that Christian ever had access; the testimony
that Christian generally remained in the play area would sug-
gest it was not within his reach.
Additionally, although the officer testified that he did not
observe any baby food in the house and even though the peti-
tion specifically alleged the lack of appropriate food in the
house as a basis for adjudication, there was no testimony
offered concerning whether Christian lacked proper nutrition.
Indeed, the officer acknowledged on cross-examination that,
although he did not observe baby food, he did observe other
food in the house and, further, that he did not have children
of his own and was unaware of when children stopped using
formula or eating baby food. Other than the officer’s observa-
tion that there was no baby food in the house, there was no
other evidence presented concerning food or proper nutrition
for Christian.
The caseworker testified at length, over repeated objec-
tions, about discussions with Peggy concerning Peggy’s mental
health problems. She testified that Peggy left her numerous
messages concerning “FbI cases,” conspiracies, and allega-
tions that neighbors were pointing shotguns at Peggy when she
was in her backyard. The caseworker testified that she had an
opinion about whether Christian was at risk of harm if returned
to Peggy, and she testified that her opinion was based on her
“meeting with Peggy, the conversations that [she] held with
IN Re INTeReST OF ChRISTIAN L. 	281
Cite as 18 Neb. App. 276

Peggy, and the voice mails that Peggy has left for” her. On that
foundation, the caseworker opined that Christian was at risk
of harm. When Peggy’s counsel objected that the opinion was
being offered on a basis that did not “include anything to do
with the allegations . . . which were the condition of the home,”
the court overruled the objection and stated that the allegation
was that “the child lacks proper parental care.”
The caseworker acknowledged that Christian, when taken
from Peggy’s care, was clean and properly clothed and appeared
to be in good health. She testified that there was nothing to
indicate a lack of proper nutrition. She also testified concern-
ing the condition of the house and, as noted above, testified
that Peggy had indicated that Christian generally remained in
the home’s play area, which was clean. When the State asked
questions on redirect, over objections, they were exclusively
concerned with additional testimony about Peggy’s mental
health status.
Finally, the State adduced testimony from a social worker
from the hospital where Peggy was transported after the offi-
cer’s response to her house. The social worker testified that
she provided a psychological evaluation of Peggy. her testi-
mony, over objections, was exclusively concerning Peggy’s
mental health status. She testified that she filled out a “board
of Mental health Petition” concerning Peggy’s mental health
status. On cross-examination, she acknowledged that Peggy’s
interactions with Christian were appropriate and that she did
not observe any behaviors by Peggy that posed a danger
to Christian.
[5] Our review of this record leads us to conclude that the
State made Peggy’s mental health status a focus of attempting
to prove the allegation that Christian was at risk and lacked
proper parental care through the fault of Peggy. The allega-
tions of the petition, however, concerned only the condition
of the house and the lack of appropriate food in the house,
and did not place Peggy on notice that her mental health was
going to be an issue. We also note that in In re Interest of
Amanda H., 4 Neb. App. 293, 306, 542 N.W.2d 79, 88 (1996),
this court indicated that it was “loath to accept any finding of
a fact which is based upon the premise that if a person suffers
282 	18 NebRASkA APPeLLATe RePORTS

from recognized medical conditions, such as manic depression,
major depression, and seizures, then that parent is not going
to give his or her children proper care,” and we specifically
questioned whether “a particular mental condition is the fault
of the person suffering from it,” such that an allegation con-
cerning the mental health of a parent can properly be based on
an assertion that the child lacks proper care through the fault
of that parent.
We conclude that Peggy was not properly placed on notice
that her mental health would be a basis for seeking to prove
the allegation that Christian lacked proper parental care and
was at risk of harm through Peggy’s fault. This is both because
the specific factual allegations made in the petition concerned
only the condition of the house and the lack of appropriate
food for Christian and did not mention anything concerning
Peggy’s mental health and because an allegation that Christian
was at risk because of Peggy’s “fault” did not sufficiently
encompass an assertion that a mental health condition she
may have suffered from constituted fault-based conduct on
her part.
When reviewing the record de novo, we conclude that
the remaining evidence in the record was not sufficient to
demonstrate that Christian was at risk of harm based on the
condition of the house or the lack of appropriate food. The
testimony indicates only that Christian had access to the play
area depicted in the photographs, which area was not cluttered,
filthy, or otherwise in dangerous disarray. There was no evi-
dence that Christian had access to or was in the cluttered and
filthy portions of the house depicted in the other photographs.
Although the evidence included photographs of both a pair of
scissors and an open hunting-style knife, there was no testi-
mony about whether Christian was able to access either, there
was no testimony about the scissors and whether they were
dangerous and sharp or merely safety scissors, there was no
testimony about whether the scissors were present in the play
area at any time when Christian was, and there was no testi-
mony about the location of the knife or Christian’s access to it.
With respect to the food in the house, the only evidence was
that although there was no baby food, there was other food,
IN Re INTeReST OF ChRISTIAN L. 	283
Cite as 18 Neb. App. 276

and that Christian did not show any indications of lacking any
proper nutrition.
A review of the record in this case makes it clear the State
focused on demonstrating that Peggy had an extremely clut-
tered house and suffered from some mental health issues and
that Christian was, accordingly, at risk of harm. The State failed
to prove by a preponderance of the evidence that Christian was
at risk or lacked proper parental care through Peggy’s fault.
We therefore direct that the juvenile court dismiss the proceed-
ings, but that such dismissal shall be 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 Peggy with due process.
reversed And remAnded with
directions to dismiss.
284 	18 NebRASkA APPeLLATe RePORTS