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In re Interest of Lilly S.

Supreme Court of Nebraska

December 1, 2017

In re Interest of Lilly S. and Vincent S., children under 18 years of age.
Kenny S., appellant. State of Nebraska, appellee,

         1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches a conclusion independently of the juvenile court's findings. When the evidence is in conflict, an appellate court may give weight to the fact that the juvenile court observed the witnesses and accepted one version of facts over another.

         2. Rules of Evidence: Judicial Notice. Pursuant to Neb. Rev. Stat. § 27-201(2) (Reissue 2016), a judicially noticed fact must be one not subject to reasonable dispute in that it is either (a) generally known within the territorial jurisdiction of the trial court or (b) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

         3. __: __ . When neither of the alternative tests prescribed in Neb. Rev. Stat. § 27-201(2) (Reissue 2016) is satisfied, judicial notice of an adjudicative fact is improper.

         4. Rules of Evidence: Judicial Notice: Words and Phrases. Adjudicative facts within the meaning of Neb. Rev. Stat. § 27-201 (Reissue 2016) are simply the facts developed in a particular case, as distinguished from legislative facts, which are established truths, facts, or pronouncements that do not change from case to case but apply universally. In other words, the adjudicative facts are those to which the law is applied in the process of adjudication.

         5. Judgments: Words and Phrases. A fact is adjudicative if the fact affects the determination of a controverted issue in litigation.

         6. Judicial Notice. A judge or court may take judicial notice, whether requested or not, and judicial notice of an adjudicative fact may be taken at any stage of proceedings.

         [298 Neb. 307] 7. Juvenile Courts: Judicial Notice: Records. A juvenile court has a right to examine its own records and take judicial notice of its own proceedings and judgment in an interwoven and dependent controversy where the same matters have already been considered and determined.

         8. Judicial Notice. A trial court cannot take judicial notice of disputed allegations.

         9. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile at the adjudication stage, the court's only concern is whether the conditions in which the juvenile presently finds himself or herself fit within the asserted subsection of Neb. Rev. Stat. § 43-247 (Reissue 2016).

         10. Juvenile Courts: Jurisdiction: Parental Rights. Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) outlines the basis for the juvenile court's jurisdiction and grants exclusive jurisdiction over any juvenile who lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian.

         11. Juvenile Courts: Jurisdiction: Proof. While the State need not prove that a child has actually suffered physical harm to assert jurisdiction under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), Nebraska case law is clear that at a minimum, the State must establish that without intervention, there is a definite risk of future harm.

         12. Parental Rights: Proof. The State must prove the allegations in a petition for adjudication filed under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016) by a preponderance of the evidence.

         13. Parental Rights. A court need not await certain disaster to come into fruition before taking protective steps in the interest of a minor child.

         14. Constitutional Law: Due Process. Procedural due process includes notice to the person whose right is affected by the proceeding; reasonable opportunity to refute or defend against the charge or accusation; reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by the Constitution or statutes; and a hearing before an impartial decisionmaker.

         15. Child Custody: Parental Rights. Under the parental preference principle, a parent's natural right to the custody of his or her child trumps the interests of strangers, including the State, to the parent-child relationship and the preferences of the child.

         16. Constitutional Law: Public Policy: Child Custody: Parental Rights. Unless it has been affirmatively shown that a biological or adoptive parent is unfit or has forfeited his or her right to custody, the U.S. Constitution and sound public policy protect a parent's right to custody of his or her child.

         17. Constitutional Law: Parental Rights: Presumptions. Absent circumstances which justify terminating a parent's constitutionally protected [298 Neb. 308] right to care for his or her child, due regard for the right requires that a biological or adoptive parent be presumptively regarded as the proper guardian for his or her child.

         18. Child Custody: Parental Rights. The parental preference doctrine, under which a parent's natural right to the custody of his or her child trumps the interests of strangers, is applicable even to an adjudicated child.

         19. Juvenile Courts: Parent and Child: Evidence. Once there has been the adjudication that a child is a juvenile within meaning of the Nebraska Juvenile Code, the foremost purpose or objective is promotion and protection of the juvenile's best interests, with preservation of the juvenile's familial relationship with his or her parents, where continuation of such parental relationship is proper under the law. To accomplish such a goal and fashion a dispositional remedy beneficial to the juvenile, the juvenile court should have access to the best available evidence which is relevant, reliable, and trustworthy concerning a correct disposition for the juvenile.

         20. Child Custody: Parental Rights. While it is true that a parent has a natural right to the custody of his or her child, the court is not bound as a matter of law to restore a child to a parent under any and all circumstances.

         21. __:__. The parent's natural right to the custody of his or her child is limited by the State's power to protect the health and safety of the children. 22. Child Custody: Parental Rights: Proof. The best interests of the children must always be considered in determining matters of child custody, and where the parent is shown to be unfit or to have forfeited his or her superior right to custody, the court may place the children in the custody of an unrelated third party.

         23. Juvenile Courts: Parental Rights: Notice. Neb. Rev. Stat. § 43-267(2) (Reissue 2016) requires that as a party, the parent shall receive notice of a juvenile dispositional hearing. Such notice ensures that the rights of the adjudicated and nonadjudicated parents are recognized.

         Appeal from the Separate Juvenile Court of Douglas County: Douglas F. Johnson, Judge. Affirmed in part, and in part vacated and remanded with directions.

          Thomas C. Riley, Douglas County Public Defender, and Zoe R. Wade for appellant.

          No appearance for appellee.

         [298 Neb. 309] Heavican, C.J., Miller-Lerman, Cassel, ...

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