In re Interest of Lilly S. & Vincent S., 298 Neb. 306

Background

Parents Kenny and Ashley S. share two children, Lilly (b. 2006) and Vincent (b. 2012); the State filed a § 43-247(3)(a) petition alleging the children lacked proper parental care due to parental faults/habits (domestic violence and parental substance use).
Ashley admitted facts supporting adjudication as to her (including one incident where Kenny pushed her), and the juvenile court adjudicated the children as to Ashley.
At Kenny’s adjudication hearing, the State failed to elicit testimony about Kenny’s substance use (Kenny invoked the Fifth Amendment); Ashley testified that Kenny pushed her once while the children were not present.
The juvenile court took judicial notice of Ashley’s plea and its factual basis and used those adjudicative facts to adjudicate the children as to Kenny; it dismissed substance-use allegations but ordered Kenny to complete evaluations and a batterer’s intervention program.
Kenny appealed, arguing insufficiency of evidence of risk to the children, improper judicial notice of disputed facts and court ‘‘knowledge,’’ due process violations under § 43-247(5), and lack of notice/hearing for dispositional orders.

Issues

Issue	Plaintiff's Argument (State/Kenny as applicable)	Defendant's Argument (Kenny)	Held
Sufficiency of evidence that children were at risk from Kenny	State: Ashley’s admission and testimony establish a risk of future harm; court may act before actual harm occurs	Kenny: Only one pushed incident (children not present); no nexus showing risk to children	Reversed adjudication as to Kenny — evidence insufficient absent judicially noticed disputed facts; need nexus between parent’s fault and definite risk to children
Judicial notice of Ashley’s plea facts	State/court treated Ashley’s plea and its factual basis as established and usable against Kenny	Kenny: Court improperly judicially noticed disputed adjudicative facts without opportunity to contest	Taking judicial notice of the adjudication was permissible, but judicial notice of the underlying disputed factual basis was improper; those facts were excluded from sufficiency analysis
Judicial notice of court’s own “knowledge”/commentary	Court argued frequency of domestic violence as credibility/context	Kenny: Claimed court relied on its personal knowledge rather than evidence	Court’s brief comment about typical recurrence of domestic violence was treated as permissible credibility commentary, not judicial notice; no error on that point
Dispositional process and § 43-247(5) due process challenge	Kenny: Applying § 43-247(5) to nonadjudicated parents and ordering disposition without notice violates parental preference and due process	State: Prior precedent permits jurisdiction over nonadjudicated parents and two-step process protects rights	Court upheld that § 43-247(5) may reach nonadjudicated parents; disapproved language that shifts initial burden to parent but confirmed parent must rebut disposition-level concerns; vacated dispositional order for lack of notice and remanded for disposition with proper notice

Key Cases Cited

In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (appellate review de novo; deference to juvenile court credibility findings)
In re Interest of J.S., A.C., and C.S., 227 Neb. 251, 417 N.W.2d 147 (Nebraska Evidence Rules apply at adjudication)
State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (judicial notice of adjudicative facts limited by § 27-201(2); cannot notice disputed allegations)
Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (distinction between adjudicative and legislative facts; judicial notice scope)
In re Interest of Ty M. & Devon M., 265 Neb. 150, 655 N.W.2d 672 (juvenile court may notice its prior proceedings in interwoven controversies)
In re Interest of Justine J. et al., 286 Neb. 250, 835 N.W.2d 674 (State must show definite risk of future harm under § 43-247(3)(a); preponderance standard)
In re Interest of Amber G. et al., 250 Neb. 973, 554 N.W.2d 142 (two-step adjudication/disposition process; parental preference; burden allocation clarified and partially disapproved)
In re Interest of Sloane O., 291 Neb. 892, 870 N.W.2d 110 (parental preference and constitutional protection of custody)
In re Interest of Cassandra B. & Moira B., 290 Neb. 619, 861 N.W.2d 398 (balancing parental rights and child safety)
In re Interest of Heather R. et al., 269 Neb. 653, 694 N.W.2d 659 (procedural due process elements in juvenile adjudication)