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 § 43-247(3)(a) petition alleging the children lacked proper parental care due to parental faults/habits (domestic violence and substance use).
- Ashley admitted (entered a plea) to allegations concerning domestic violence and that the children were at risk; the juvenile court adjudicated the children as to Ashley on that basis.
- At Kenny’s adjudication hearing, Ashley testified she had been pushed by Kenny once during an incident when the children were not present; Kenny invoked his Fifth Amendment right regarding substance use, and many State questions were objected to/sustained.
- The juvenile court took judicial notice of (1) the adjudication as to Ashley and (2) the factual basis of Ashley’s plea, and adjudicated the children as to Kenny based on domestic violence; it dismissed substance-abuse allegations as to Kenny.
- The court proceeded immediately to disposition as to Kenny, ordering evaluations and domestic-violence programming, but Kenny was not given prior notice of the dispositional hearing.
- On appeal Kenny challenged sufficiency of evidence of risk, the court’s judicial notice of disputed facts and of its own knowledge, the constitutionality of § 43-247(5) as applied to nonadjudicated parents, and lack of notice/hearing for disposition. The Supreme Court affirmed in part, vacated the adjudication as to Kenny and vacated the dispositional order, remanding for further proceedings.
Issues
| Issue | Kenny's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that children were at risk under § 43-247(3)(a) | Single push of Ashley (children not present) insufficient; no evidentiary nexus to risk of future harm | Ashley’s admission and adjudication as to Ashley, plus the testimony and court’s observations, supported risk | Reversed: insufficient evidence to adjudicate children as to Kenny absent additional evidence linking domestic violence to risk to children |
| Judicial notice of facts (including factual basis of Ashley’s plea) | Court improperly took judicial notice of disputed adjudicative facts and used them against Kenny without giving him opportunity to respond | Court may take judicial notice of its own adjudications and of adjudicated facts | Partial reversal: court may notice adjudication as to Ashley but erred in judicially noticing disputed factual basis of Ashley’s plea against Kenny; such noticed facts not considered on sufficiency review |
| Constitutionality / application of § 43-247(5) to nonadjudicated parent | Application deprives nonadjudicated parent of procedural due process and shifts burden to parent | Prior precedent permits jurisdiction over nonadjudicated parent for dispositional purposes; rights protected by two-step adjudication/disposition process | Upheld: applying § 43-247(5) to nonadjudicated parent is constitutional; but language shifting initial burden to parent in prior case disapproved; nonadjudicated parent must rebut concerns raised at disposition |
| Dispositional notice and hearing | Kenny was denied due process because court entered dispositional orders without notice or opportunity to be heard | Juvenile court can fashion disposition after adjudication; placement sometimes appropriate pending disposition | Reversed/vacated disposition: court must provide proper notice and a dispositional hearing for Kenny; remanded for disposition after notice |
Key Cases Cited
- In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (Neb. 2016) (standard: de novo review in juvenile appeals)
- State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (Neb. 1989) (limits on judicial notice of adjudicative facts)
- Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (Neb. 2006) (distinction between adjudicative and legislative facts)
- In re Interest of Justine J. et al., 286 Neb. 250, 835 N.W.2d 674 (Neb. 2013) (State must show definite risk of future harm under § 43-247(3)(a))
- In re Interest of Amber G. et al., 250 Neb. 973, 554 N.W.2d 142 (Neb. 1996) (jurisdiction over nonadjudicated parent and two-step adjudication/disposition procedures)
- In re Interest of Sloane O., 291 Neb. 892, 870 N.W.2d 110 (Neb. 2015) (parental preference and constitutional protection of parental custody)