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 petitioned under Neb. Rev. Stat. § 43-247(3)(a) alleging the children lacked proper parental care due to parental fault/habits (domestic violence and substance abuse).
- Ashley admitted (plea) that she engaged in domestic violence with Kenny and that the children were at risk; she testified at adjudication about a single incident in which Kenny pushed her while the children were not present.
- Kenny invoked his Fifth Amendment right at trial; the State’s attempts to elicit additional evidence of his substance use were unsuccessful. Several objections to other testimony were sustained.
- The juvenile court (1) judicially noticed Ashley’s plea/factual basis and used it against Kenny, (2) adjudicated the children under § 43-247(3)(a) as to Kenny (finding domestic violence established), dismissed substance-abuse allegations, and (3) proceeded to disposition the same day without giving Kenny notice of a dispositional hearing.
- On appeal Kenny challenged (a) sufficiency of evidence that the children were at risk from his conduct, (b) the court’s judicial notice of disputed facts and of its own knowledge, (c) constitutionality / due process implications of § 43-247(5) as applied to nonadjudicated parents, and (d) entry of disposition without notice. The Supreme Court affirmed in part, vacated in part, and remanded.
Issues
| Issue | Kenny's Argument | State's Argument | Held |
|---|---|---|---|
| Judicial notice of disputed facts | Court erred by judicially noticing the factual basis of Ashley’s plea and using it against Kenny (facts were disputed) | Court may take notice of prior adjudication and its own records; commentary about frequency of domestic violence legitimate | Court erred: judicial notice of Ashley’s plea factual basis (disputed adjudicative facts) was improper; commentary on credibility was permissible |
| Sufficiency of evidence for jurisdiction under § 43-247(3)(a) | Single push (children absent) and the court’s judicial notice were insufficient to show present conditions creating a definite risk of future harm | The adjudication of Ashley and her testimony supported jurisdiction; court need not wait for actual harm | Reversed adjudication as to Kenny: without the judicially noticed facts and absent additional evidence linking Kenny’s conduct to risk of harm to children, State failed by a preponderance to prove risk |
| Constitutionality / due process re § 43-247(5) (nonadjudicated parent jurisdiction) | Applying § 43-247(5) to nonadjudicated parents shifts burden to parent and denies procedural due process / parental preference | Prior precedent allows juvenile court jurisdiction over nonadjudicated parents for purposes of disposition; parents’ rights protected by two-step adjudication/disposition process | Court upheld prior approach: § 43-247(5) validly allows jurisdiction over nonadjudicated parents; parental preference preserved; but language implying initial burden on parent at disposition is disapproved—state may present evidence raising concerns and parent must then rebut |
| Dispositional hearing notice | Denied due process because dispositional orders were entered without notice or opportunity to be heard | Juvenile court has broad discretion at disposition; but statutory notice required | Court vacated dispositional order as to Kenny and remanded for a dispositional hearing after proper notice to all parties |
Key Cases Cited
- State v. Vejvoda, 231 Neb. 668 (1989) (judicial notice of adjudicative facts improper when facts are subject to reasonable dispute)
- Strunk v. Chromy-Strunk, 270 Neb. 917 (2006) (distinguishing adjudicative facts from legislative facts; limits on judicial notice)
- In re Interest of Justine J. et al., 286 Neb. 250 (2013) (State must show definite risk of future harm to obtain jurisdiction under § 43-247(3)(a))
- In re Interest of Amber G. et al., 250 Neb. 973 (1996) (upholding juvenile jurisdiction over nonadjudicated parent but clarifying burdens at disposition)
- In re Interest of LeVanta S., 295 Neb. 151 (2016) (standard of appellate review in juvenile cases — de novo on the record)
- In re Interest of J.S., A.C., and C.S., 227 Neb. 251 (1987) (adjudication/disposition phases protect child and parental interests; need for reliable evidence at disposition)