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In re Donald B.

Supreme Court of Nebraska

October 11, 2019

IN RE INTEREST OF DONALD B. AND DEVIN B., CHILDREN UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE.
v.
CANDICE I., APPELLANT.

         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.

         2. Parental Rights: Proof. In order to terminate an individual's parental rights, the State must prove by clear and convincing evidence that one of the statutory grounds enumerated in Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and that termination is in the children's best interests.

         3. Parental Rights: Juvenile Courts: Pleadings. In a termination proceeding, pursuant to Neb. Rev. Stat. § 43-247(6) (Reissue 2016), a court may accept an in-court admission from a parent as to all or part of the allegations in the petition.

         4. Pleas: Evidence: Waiver: Words and Phrases. A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true.

         5. Parental Rights: Proof. When a parent admits to the State's allegations regarding the statutory ground for termination of parental rights and that termination is in the children's best interests, the State does not have to prove those allegations by clear and convincing evidence.

         6. Parental Rights: Juvenile Courts: Pleadings. Because the primary consideration in determining whether to terminate parental rights is the best interests of the child, a juvenile court should have at its disposal the information necessary to make the determination regarding the minor child's best interests regardless of whether the information is [304 Neb. 240] in reference to a time period before or after the filing of the termination petition.

         7. Evidence: Appeal and Error. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue.

         8. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created court of limited and special jurisdiction, a juvenile court has only such authority as has been conferred on it by statute.

         Petition for further review from the Court of Appeals. Moore, Chief Judge, and Pirtle and Arterburn, Judges, on appeal thereto from the Separate Juvenile Court of Douglas County, Chad M. Brown, Judge. Judgment of Court of Appeals reversed, and cause remanded with directions.

          John J. Ekeh, of Ekeh Law Office, for appellant.

          Donald W. Kleine, Douglas County Attorney, Natalie Killion, and Jennifer Chrystal-Clark for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          CASSEL, J.

         I. INTRODUCTION

         Candice I. petitions for further review of the Nebraska Court of Appeals' decision affirming the termination of her parental rights to one of her minor children based upon her admissions and the State's factual basis presented at the termination hearing. Upon a de novo review of the record, the indistinguishable progress made by Candice with both children does not support a sufficient factual basis that termination of her parental rights was in only one child's best interests. Accordingly, we reverse, and remand with directions.

         II. BACKGROUND

         Candice is the natural mother of Donald B., born in 2003, and Devin B., born in 2004. In 2015, the juvenile court [304 Neb. 241] adjudicated that both children shall be under the temporary custody of the Department of Health and Human Services (DHHS). Since the adjudication, the children have remained in the custody of DHHS.

         1. Hearing on Termination of Parental Rights to Devin

         In January 2018, the State filed its third motion to terminate Candice's parental rights to both Donald and Devin. Six months later, the juvenile court held a hearing on the motion.

         Pursuant to a "plea deal" announced at the hearing, Candice admitted to count I (Devin was within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016)), count II (Candice failed to comply with several court-ordered rehabilitation plans), count IV (Devin came within the meaning of Neb. Rev. Stat. § 43-292(1) (Reissue 2016)), count IX (terminating Candice's parental rights was in Devin's best interests), and count X (reasonable efforts under Neb. Rev. Stat. § 43-283.01 (Cum. Supp. 2018) were not required due to abandonment). And in return, the State dismissed all the allegations as to Donald and the remaining allegations as to Devin. As a condition of the "plea deal," the State represented that Candice's admissions would be treated as a "voluntary relinquishment."

         During the termination and permanency hearing, the court recited the allegations contained in the third motion to terminate parental rights. Before and after the recitation, the court conducted a colloquy with Candice to advise her of the rights that she would be waiving. Candice then admitted to the allegations.

         After Candice's admissions, the State set forth a factual basis for the plea, and we summarize its recitation. It stated it would show that Devin was removed from his parental care in 2015. As part of the removal, the court entered several orders. Candice failed to comply with the orders to reunify with Devin. Prior to filing the motion for termination, she did not have contact with Devin for 2 years. And other case [304 Neb. 242] professionals would testify to the lack of contact between Candice and Devin. Devin's caseworker would testify that she made efforts to engage Candice in reunification. Based upon the caseworker's education, training, and experience with the family, she would testify that it was in Devin's best interests to terminate Candice's parental rights.

         Based upon Candice's admissions and the factual basis recited by the State, the juvenile court made several findings. Pursuant to count III, the court took judicial notice of its own record and orders in the case. It found that (1) there was a factual basis for the counts; (2) the admissions to the motion were true by clear and convincing evidence; (3) the plea was knowingly, intelligently, and understanding made; and (4) it was in Devin's best interests to terminate Candice's parental rights. It terminated Candice's parental rights and found that "this is to be treated as a voluntary relinquishment to this Court and it cannot be used for any further filings or proceedings by the county attorney or any other party." The hearing continued with respect to Donald's status, during which evidence was considered. We will return to that evidence later.

         2. Court of Appeals' Decision

         Candice timely appealed and challenged the termination of her parental rights.[1] She assigned that the court lacked authority to accept her admissions as a voluntary relinquishment. Additionally, she assigned that the court erred in terminating her parental rights to Devin.

         The Court of Appeals reasoned that the juvenile court was empowered to accept Candice's admissions and to rely on the admissions when terminating her parental rights. It disregarded the cases she discussed about relinquishment of parental rights, because, it said, those cases were concerned about a juvenile court's authority to order DHHS to accept a voluntary relinquishment from a parent.

         [304 Neb. 243] It also reasoned that based on Candice's admission that termination was in Devin's best interests, her acquiescence to the factual basis, and her reunification efforts with Donald, there was sufficient evidence to terminate her parental rights to Devin. It emphasized that "[t]he record shows that although Candice ceased having contact with Devin more than 2 years prior to the State's filing the third petition for termination of parental rights, she was maintaining contact with Donald."[2] It concluded that based on the record, it could find no basis to set aside the ...


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