In re Interest of Lilly S. & Vincent S.
298 Neb. 306
| Neb. | 2017Background
- Parents Kenny S. and Ashley S. have two children: Lilly (b. 2006) and Vincent (b. 2012). The State filed a § 43-247(3)(a) petition in Nov. 2016 alleging risk of harm to the children due to parental fault/habits (domestic violence and substance abuse).
- At adjudication Ashley admitted a domestic-violence-related allegation and the court adjudicated the children as to Ashley; she testified about a single incident in which Kenny pushed her while the children were not present.
- Kenny invoked his Fifth Amendment right at adjudication; the State’s attempts to elicit further evidence of his substance use were largely unsuccessful. The court dismissed substance-abuse allegations as to Kenny but adjudicated the children as to him based on domestic violence.
- The juvenile court expressly took judicial notice of the factual basis for Ashley’s admission (the underlying facts) and used those adjudicative facts against Kenny, and then proceeded immediately to disposition without giving Kenny notice of the dispositional hearing.
- Kenny appealed, challenging (1) sufficiency of evidence that children were at risk from his faults/habits, (2) judicial notice of disputed adjudicative facts and the court’s use of its own knowledge, (3) constitutionality of § 43-247(5) as applied to nonadjudicated parents, and (4) lack of notice/hearing at disposition.
Issues
| Issue | Plaintiff's Argument (State/Kenny as appropriate) | Defendant's Argument (Kenny) | Held |
|---|---|---|---|
| Judicial notice of disputed adjudicative facts | Juvenile court may consider Ashley’s prior adjudication and related facts | Court improperly judicially noticed disputed facts (the factual basis of Ashley’s plea) and used them against Kenny without giving him chance to contest | Court: taking judicial notice of Ashley’s adjudication was permissible, but judicial notice of the disputed factual basis of her admission was improper and those facts cannot be considered against Kenny |
| Sufficiency of evidence under § 43‑247(3)(a) (risk of future harm) | The domestic-violence admission (and Ashley’s testimony) support jurisdiction over the children as to Kenny | Kenny argued evidence was insufficient—only one push, children were not present, no nexus to risk of harm to children | Court: evidence (without the judicially noticed disputed facts) was insufficient to show a definite risk of future harm from Kenny’s faults/habits; adjudication as to Kenny vacated |
| Application/constitutionality of § 43‑247(5) (jurisdiction over nonadjudicated parent) | State relies on precedent permitting juvenile-court jurisdiction over nonadjudicated parent once child is adjudicated | Kenny contends deprives nonadjudicated parent of due process and shifts burden to parent at disposition | Court: upholds prior rule that juvenile court may exercise jurisdiction under § 43‑247(5); clarifies that nonadjudicated parent need not prove fitness unless State or report raises concerns, at which point parent must rebut the showing |
| Dispositional hearing notice and opportunity to be heard | Court proceeded to immediate disposition and ordered evaluations and treatment for Kenny | Kenny argues he received no notice and no reasonable opportunity to be heard at disposition | Court: vacated dispositional order and remanded for a dispositional hearing after proper notice to all parties |
Key Cases Cited
- State v. Vejvoda, 231 Neb. 668 (1989) (limits judicial notice of disputed adjudicative facts)
- Strunk v. Chromy-Strunk, 270 Neb. 917 (2006) (distinguishes adjudicative vs. legislative facts)
- In re Interest of Amber G. et al., 250 Neb. 973 (1996) (discusses jurisdiction over nonadjudicated parents and two-step adjudication/disposition process)
- In re Interest of Justine J. et al., 286 Neb. 250 (2013) (State must prove a definite risk of future harm under § 43-247(3)(a))
- In re Interest of S.L.P., 230 Neb. 635 (1988) (court need not await actual disaster before protecting a child)