SUMMARY: A conviction of felony child abuse is not sufficient to show that reasonable efforts are not required pursuant to Neb. Rev. Stat. section 283.01(4)(b)(iv). Preponderance of the evidence must establish “felony assault.” The breaking of a baby’s leg is considered a “serious bodily injury.” Even if the elements of the “no reasonable efforts” statute is satisfied, the court should still consider whether it is in the child’s best interest to make a no reasonable efforts finding.
Janet, DOB 8/5/00, is the child of Florance and Craig and was removed from the mother’s care shortly after birth. In 1988, Florance’s daughter died under suspicious circumstances, having a spiral fracture in her leg. In 1989, another daughter died 22 days after being born, with Florance admitting placing her in a box in a closet immediately after birth. In 1992, Florance’s son, Matthew, was found to have a spiral fracture in his leg and Florance admitted she broke it after pulling on his leg while changing diapers. Florance was convicted of felony child abuse. Florance relinquished custody to another child in 1997. A 1997 evaluation found Florance to have severe emotional disturbance which, without change, would prevent her from being an adequate parent. A 2002 psychological evaluation concluded that little had changed with Florance since the 1997 evaluation as to the underlying issues. However, Florance testified, without being contested, that she underwent counseling and parenting classes, has maintained employment and a home, and has become a stable member of society. There was no evidence submitted that the father would not be a responsible parent. At disposition, the court found that Florance committed “felony assault upon other of her children” and that reasonable efforts are not required. Florance appealed.
The Nebraska Court of Appeals affirmed the juvenile court’s order. It held that a conviction of felony child abuse would not be sufficient to satisfy Neb. Rev. Stat. section 43-283.01(4). After a review of Nebraska legislative history, the Court of Appeals found that the juvenile court is the proper court to determine whether reasonable efforts are required. Under Neb. Rev. Stat. section 29-109(20), serious bodily injury is “bodily injury which involves a substantial risk of death, or which involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body.” The Court of Appeals held that a spiral fracture on a baby’s leg, which is the result of excessive force with a twisting action, does involve a substantial risk of disfigurement or protracted loss or impairment of the leg and is therefore a serious bodily injury. It concluded that Florance committed felony assault on Matthew because she admitted to causing the spiral fracture and medical testimony established that she had to have knowingly inflicted the injury for it to happen. The Court of Appeals held that a juvenile court should still consider whether requiring reasonable efforts would be in the child’s best interests even if the elements of Neb. Rev. Stat. section 43-281.01(4) are satisfied. However, it found in this case that even with the length of time between the assault and current situation, evidence from the psychologists established that the mother’s uncorrected mental illness has not changed and considerations of the child’s safety shows that reasonable efforts are unnecessary.