In re Interest of Lilly S. & Vincent S.
298 Neb. 306
| Neb. | 2017Background
- Parents Kenny and Ashley S. have two children: Lilly (b. 2006) and Vincent (b. 2012). The State filed a petition under Neb. Rev. Stat. § 43-247(3)(a) alleging the children lacked proper parental care due to parental fault/habits (domestic violence and substance use).
- At adjudication, Ashley admitted (pled) that domestic violence occurred and that the children were at risk; the juvenile court adjudicated the children as to Ashley on that basis.
- During Kenny’s separate adjudication, Ashley testified she was once pushed by Kenny during an argument while the children were not present; Kenny invoked his Fifth Amendment privilege regarding drug-use questions and some objections limited other testimony.
- The juvenile court: (a) took judicial notice of Ashley’s adjudication and the factual basis of her admission, (b) adjudicated the children as to Kenny under § 43-247(3)(a) based on domestic violence, and (c) entered dispositional orders (treatment, batterer’s program) without giving Kenny noticed dispositional hearing.
- Kenny appealed, arguing insufficient evidence of future risk from his conduct, erroneous judicial notice of disputed facts, § 43-247(5) as construed is unconstitutional for depriving nonadjudicated parents of due process, and the court denied him notice and a hearing on disposition.
Issues
| Issue | Kenny’s Argument | State/Respondent’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that children were at risk under § 43-247(3)(a) | Single push (children absent) and lack of nexus to children is insufficient to show definite risk of future harm | Ashley’s admission/adjudication and testimony support jurisdiction for children’s protection | Reversed as to adjudication of Kenny — evidence insufficient absent judicially noticed disputed facts; State must show definite risk of future harm by preponderance |
| Judicial notice of Ashley’s plea facts and court’s own "knowledge" | Court improperly took judicial notice of disputed adjudicative facts (factual basis of Ashley’s plea) and used them against Kenny | Court may judicially notice its own prior adjudication; some commentary about domestic violence frequency is permissible | Court erred in judicially noticing disputed adjudicative facts and those facts were excluded from sufficiency analysis; commentary on frequency of DV was permissible |
| Constitutionality / application of § 43-247(5) to nonadjudicated parent | Applying § 43-247(5) to nonadjudicated parents shifts burden to parent and denies procedural due process / parental preference | Prior Nebraska precedent allows jurisdiction over nonadjudicated parents for dispositional purposes; two-step process (adjudication then disposition) protects rights | Upheld prior application of § 43-247(5); disapproved any language that placed initial burden on nonadjudicated parent; nonadjudicated parent must rebut predispositional evidence raising fitness concerns |
| Dispositional process / notice to Kenny | Kenny was denied notice and opportunity to be heard before disposition was entered against him | Juvenile court process contemplates disposition after adjudication; but statute requires notice | Dispositional orders vacated and remanded because Kenny did not receive required notice; remand for dispositional hearing after proper notice |
Key Cases Cited
- In re Interest of LeVanta S., 295 Neb. 151 (review standard: juvenile cases reviewed de novo)
- In re Interest of Justine J. et al., 286 Neb. 250 (interpretation of § 43-247(3)(a) and risk-of-harm standard)
- State v. Vejvoda, 231 Neb. 668 (judicial notice of adjudicative facts; cannot notice disputed allegations)
- Strunk v. Chromy-Strunk, 270 Neb. 917 (distinction between adjudicative and legislative facts)
- In re Interest of Amber G. et al., 250 Neb. 973 (two-step juvenile process; jurisdiction over nonadjudicated parents — modified as to burden language)
- In re Interest of Sloane O., 291 Neb. 892 (parental preference and constitutional protections)
- In re Interest of J.S., A.C., and C.S., 227 Neb. 251 (evidence rules apply to adjudication under Juvenile Code)
- In re Interest of Ty M. & Devon M., 265 Neb. 150 (court may take judicial notice of its own prior proceedings in interwoven controversies)