In re Interest of Lilly S. and Vincent S., children under 18 years of age.
Kenny S., appellant. State of Nebraska, appellee,
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.
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.
__ . 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.
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.
Judgments: Words and Phrases. A fact is adjudicative if the
fact affects the determination of a controverted issue in
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.
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.
Judicial Notice. A trial court cannot take judicial notice of
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).
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.
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.
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
Parental Rights. A court need not await certain disaster to
come into fruition before taking protective steps in the
interest of a minor child.
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
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.
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.
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.
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.
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.
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.
__:__. 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
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.
from the Separate Juvenile Court of Douglas County: Douglas
F. Johnson, Judge. Affirmed in part, and in part vacated and
remanded with directions.
C. Riley, Douglas County Public Defender, and Zoe R. Wade for
appearance for appellee.
Neb. 309] Heavican, C.J., Miller-Lerman, Cassel, ...