In re Interest of Lilly S. & Vincent S., 903 N.W.2d 651

Background

Parents Kenny and Ashley S. have two children, Lilly (b. 2006) and Vincent (b. 2012); State petitioned under Neb. Rev. Stat. § 43-247(3)(a) alleging lack of proper parental care due to parents’ faults/habits (domestic violence and substance use).
Ashley admitted (plea) to allegations that domestic violence occurred and that the children were at risk; the court adjudicated the children as to Ashley and proceeded to disposition as to her.
At Kenny’s adjudication, Ashley testified she had been pushed by Kenny once during an argument (children not present); State’s attempts to introduce further evidence of Kenny’s substance use were thwarted (Kenny invoked Fifth, objections sustained).
The juvenile court (same day) adjudicated the children as to Kenny, relying on Ashley’s testimony, judicially noticed facts drawn from Ashley’s earlier admission, and general observations about domestic violence frequency; substance-abuse allegations against Kenny were dismissed for insufficient evidence.
The court ordered Kenny to submit to evaluation and participate in a Batterer’s Intervention Program, and proceeded to disposition without giving Kenny prior notice of the dispositional hearing.
Kenny appealed, challenging (1) sufficiency of evidence that children were at risk from his faults/habits, (2) court’s judicial notice of disputed facts, (3) constitutionality/interpretation of § 43-247(5) as applied to nonadjudicated parents, and (4) entry of dispositional orders without notice or opportunity to be heard.

Issues

Issue	Plaintiff's Argument (State/Kenny as applicable)	Defendant's Argument (Kenny)	Held
Sufficiency: Did evidence show children at definite risk from Kenny’s faults/habits under § 43‑247(3)(a)?	State relied on Ashley’s plea/admission and her in‑court testimony that Kenny pushed her; argued intervention permitted without actual harm.	Kenny argued one push (children absent) plus no nexus showing risk to children is insufficient to adjudicate him.	Court reversed: without judicially noticed disputed facts, record lacks sufficient evidence of a definite risk of future harm from Kenny; adjudication as to Kenny was erroneous.
Judicial notice: May court judicially notice factual basis of Ashley’s plea and use it against Kenny?	State treated Ashley’s adjudication and plea as proper basis to infer same factual basis against Kenny.	Kenny argued the court improperly took judicial notice of disputed adjudicative facts he contested.	Court held judicial notice of Ashley’s adjudication (that she was adjudicated) was permissible, but taking judicial notice of the underlying disputed factual basis of her plea (adjudicative facts contested by Kenny) was improper; those facts cannot be considered.
Constitutionality/Interpretation: Does § 43‑247(5) as applied allow jurisdiction over a nonadjudicated parent without violating due process or shifting burden?	State (and prior precedent) treats § 43‑247(5) as permitting jurisdiction over nonadjudicated parents where a child is adjudicated; dispositional stage determines placement; parental rights protected by two‑step process.	Kenny contended applying § 43‑247(5) to nonadjudicated parents deprives them of procedural due process and improperly shifts burden to them to prove fitness at disposition.	Court upheld prior interpretation: § 43‑247(5) application is not facially unconstitutional. Court disapproved precedent language that put initial burden on nonadjudicated parent; instead, if State or predispositional report raises concerns, the nonadjudicated parent must rebut that evidence at disposition.
Disposition notice/due process: Was Kenny denied procedural due process because the court entered disposition without notice or opportunity to be heard?	Court proceeded to immediate disposition (stated it did so).	Kenny argued he received no notice of dispositional hearing and no opportunity to be heard, violating Neb. Rev. Stat. § 43‑267(2) and due process.	Court agreed: dispositional order vacated and remanded because Kenny was not given required notice and opportunity to address placement/fitness; remand for disposition after proper notice.

Key Cases Cited

In re Interest of LeVanta S., 295 Neb. 151 (review standard for juvenile appeals)
State v. Vejvoda, 231 Neb. 668 (limits on judicial notice of adjudicative facts)
Strunk v. Chromy-Strunk, 270 Neb. 917 (distinguishing adjudicative vs legislative facts; use of court records)
In re Interest of Justine J. et al., 286 Neb. 250 (State must show definite risk of future harm under § 43-247(3)(a))
In re Interest of Amber G. et al., 250 Neb. 973 (two‑step adjudication/disposition process; parental preference doctrine discussion)
In re Interest of N.M. and J.M., 240 Neb. 690 (judicial notice cannot be taken of disputed allegations)
In re Interest of J.S., A.C., and C.S., 227 Neb. 251 (evidence rules at adjudication; best evidence for disposition)