In re Interest of Lilly S. & Vincent S. , 298 Neb. 306 ( 2017 )

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IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306In re I nterest of
Lilly S. and Vincent S.,
children under 18 years of age.
State of Nebraska, appellee, v.
K enny S., appellant.
___ N.W.2d ___
Filed December 1, 2017. No. S-17-259.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile 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 accu-
rate 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.
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IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 3067. Juvenile Courts: Judicial Notice: Records. A juvenile court has a right
to examine its own records and take judicial notice of its own proceed-
ings 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 inter-
vention, there is a definite risk of future harm.
12. Parental Rights: Proof. The State must prove the allegations in a peti-
tion 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; reason-
able 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 princi-
ple, 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 circum-
stances which justify terminating a parent’s constitutionally protected
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IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306right 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 adjudi-
cated 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 juve-
nile’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 chil-
dren 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 Zoë
R. Wade for appellant.
No appearance for appellee.
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IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
K elch, J.
INTRODUCTION
Kenny S. appeals the adjudication and disposition order
of the separate juvenile court of Douglas County. He chal-
lenges (1) the sufficiency of the evidence that his children
were at risk of harm, (2) the juvenile court’s judicial notice
of disputed facts and judicial notice of facts within the court’s
own “knowledge,” (3) the constitutionality of Neb. Rev. Stat.
§ 43-247(5) (Reissue 2016) as currently construed, and (4)
the dispositional order entered without notice or a reason-
able opportunity to be heard. We conclude that the juvenile
court erred in finding sufficient evidence that Kenny’s faults
or habits placed the children at risk for harm, taking judicial
notice of disputed adjudicative facts, and failing to pro-
vide notice and a hearing for disposition, but we reject the
remainder of Kenny’s claims. Accordingly, we affirm in part
and in part vacate the court’s decision and remand the cause
with directions.
FACTS
Kenny and Ashley S. are the biological parents of Lilly S.,
born in 2006, and Vincent S., born in 2012.
In November 2016, the State filed a petition alleging
that Lilly and Vincent were children within the meaning of
§ 43-247(3)(a) due to the fault or habits of their parents.
Regarding Ashley, the petition alleged that she had continued
to allow Kenny to supervise the children despite knowing he
“abuses methamphetamines”; that she engages in domestic
violence with Kenny and has failed to take steps to address
it; that she has failed to provide proper parental care, support,
or supervision for the children; and that these circumstances
placed the children at risk for harm. As to Kenny, the petition
alleged that he “tested positive for methamphetamines and
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IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306amphetamines”; that he uses alcohol or controlled substances;
that he engages in domestic violence with Ashley and has
failed to take steps to address it; that “Ashley” has failed to
provide proper parental care, support, or supervision for the
children; and that these circumstances placed the children at
risk for harm.
Adjudication proceedings were held in February 2017, dur-
ing which Ashley entered a “plea” admitting the allegation
regarding domestic violence and the allegation that the children
were at risk for harm. Specifically, she admitted that there had
been one incident where Kenny had pushed her and she called
the police. Based on Ashley’s admission, the juvenile court
found a factual basis sufficient to adjudicate the children as to
Ashley and proceeded to receive exhibits and hear arguments
concerning disposition as to her.
Immediately thereafter, the matter proceeded to adjudica-
tion of the allegations against Kenny. The State attempted to
elicit evidence regarding Kenny’s use of methamphetamine,
but was unable to do so because Kenny invoked his Fifth
Amendment privilege against self-incrimination. The State’s
efforts to obtain such testimony from other witnesses were also
unsuccessful, as the court sustained various objections.
The guardian ad litem called Ashley to testify regarding
the domestic violence allegations. Ashley testified that on
November 1, 2016, she and Kenny engaged in an argument
which led to her calling the police. She explained that Kenny
pushed her out of his way in order to leave the house. Upon
cross-examination by Kenny’s counsel, Ashley further testified
that this was the only time Kenny had “been physical” with
her and that their children were not in the home at the time of
the altercation.
The juvenile court took the matter under advisement and
issued a written adjudication and dispositional order as to
Kenny later that day. It determined Lilly and Vincent to be
children within the meaning of § 43-247(3)(a) by a preponder-
ance of the evidence.
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IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306Specifically, the juvenile court found that Ashley’s testi-
mony was credible with respect to her report that there was
an incident of domestic violence following an argument that
caused her to call the police. The juvenile court continued:
[T]he Court also, upon its own motion, takes judicial
notice that just before trial [Ashley] admitted to the same
when she entered a plea of admission [that she engages in
domestic violence with Kenny and has failed to take steps
to address the domestic violence, placing the children at
risk of harm]. The Court finds that by taking jurisdic-
tion of that the same factual basis applies to [Kenny].
Any domestic violence, whether the children are present
or not, normally occurs more than one time. Although
there may be [one] incidence that is suggested the Court
finds that the case law is clear that the children do not
have to await for [sic] actual harm to occur for the State
to intervene[.]
The juvenile court found the allegations of domestic vio-
lence to be true and adjudicated the children on those grounds
as to Kenny, but dismissed the substance abuse allegations for
insufficient evidence. It went on to state that the “matter pro-
ceeded to immediate disposition hearing as to [Kenny].” The
juvenile court then ordered Kenny to undergo an initial diag-
nostic interview as well as any further recommended evalu-
ations and to participate in an accredited domestic violence
“Batterer’s Intervention Program.”
Kenny appeals. The State filed notice of its intent to waive
filing a brief and participation in oral arguments in this mat-
ter. Ashley has not appealed; as such, this appeal pertains to
Kenny only.
ASSIGNMENTS OF ERROR
Kenny assigns that (1) the juvenile court erred in finding
sufficient evidence that the children are at risk for harm; (2)
the juvenile court erred in taking judicial notice of disputed
facts and facts within the court’s own personal “knowledge”;
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IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306(3) § 43-247(5), as it is currently construed, unconstitutionally
deprives a parent of his or her procedural due process rights
under the U.S. and Nebraska Constitutions; and (4) he was
denied due process of law when the juvenile court entered
dispositional orders without providing notice or a reasonable
opportunity to be heard.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings. In re Interest of LeVanta S., 295 Neb. 151,
887 N.W.2d 502 (2016). 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. Id.ANALYSIS
Judicial Notice of Disputed Facts and Facts
Within Court’s Personal “K nowledge”
We first address Kenny’s claim that the juvenile court erred
in taking judicial notice of disputed facts and facts within the
court’s own personal “knowledge.” As noted above, the juve-
nile court order stated, in part:
[T]he Court also, upon its own motion, takes judicial
notice that just before trial [Ashley] admitted to the same
when she entered a plea of admission [that she engages in
domestic violence with Kenny and has failed to take steps
to address the domestic violence, placing the children at
risk of harm]. The Court finds that by taking jurisdic-
tion of that the same factual basis applies to [Kenny].
Any domestic violence, whether the children are present
or not, normally occurs more than one time. Although
there may be [one] incidence that is suggested the Court
finds that the case law is clear that the children do not
have to await for [sic] actual harm to occur for the State
to intervene[.]
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IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306Kenny characterizes the juvenile court’s statement, “Any
domestic violence, whether the children are present or not,
normally occurs more than one time,” as the court’s taking
judicial notice of its personal knowledge. However, we do not
view it as judicial notice, but, rather, as permissible commen-
tary on the credibility of Ashley’s testimony concerning the
frequency of domestic violence and her apparent reluctance to
testify about the incident which prompted her to contact the
police. In this respect, the juvenile court did not err.
Clearly, however, the juvenile court took judicial notice
of the factual basis from the “plea of admission” that Ashley
entered during her adjudication proceedings and used it as
evidence to support the allegations against Kenny in separate
proceedings. Kenny argues that because these facts were in
dispute, the juvenile court erred. We agree.
[2-5] The Nebraska Evidence Rules control adduction
of evidence at an adjudication hearing under the Nebraska
Juvenile Code. See In re Interest of J.S., A.C., and C.S.,
227 Neb. 251, 417 N.W.2d 147 (1987). See, also, Neb. Rev.
Stat. § 43-279(1) (Reissue 2016). 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 ques-
tioned. When neither of the alternative tests in § 27-201(2) is
satisfied, judicial notice of an adjudicative fact is improper.
State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).
Adjudicative facts within the meaning of § 27-201 are sim-
ply 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. Strunk v. Chromy-Strunk, 270 Neb. 917,
708 N.W.2d 821 (2006). In other words, the adjudicative
facts are those to which the law is applied in the process of
adjudication. Id. A fact is adjudicative if the fact affects the
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Cite as 298 Neb. 306determination of a controverted issue in litigation. State v.
Vejvoda, supra.[6,7] 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. § 27-201(3); State
v. Vejvoda, supra. And 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. In re Interest of Ty M. & Devon M., 265 Neb. 150,
655 N.W.2d 672 (2003).
The foregoing authority permitted the juvenile court to take
judicial notice of the adjudicated fact that it had found Lilly
and Vincent, in Ashley’s case, to be within the meaning of
§ 43-247(3)(a) due to domestic violence occurring between
Kenny and Ashley. See Strunk v. Chromy-Strunk, supra. But
here, the juvenile court went a step further and took judi-
cial notice of the factual basis of Ashley’s admission, which
consisted of adjudicative—not adjudicated—facts, facts which
Kenny disputed.
[8] As Kenny points out, we have recognized that under
§ 27-201(2), “a trial court cannot take judicial notice of dis-
puted allegations.” In re Interest of N.M. and J.M., 240 Neb.
690, 698, 484 N.W.2d 77, 82 (1992). And previously address-
ing judicial notice of adjudicative facts, we quoted 1 Jack
B. Weinstein & Margaret A. Berger, Weinstein’s Evidence
¶ 201[03] (1988):
“When facts do not possess [the] requisite degree of
certainty, our traditional procedure has been to require
proof within the framework of the adversary system for
reasons well-expressed by Professor Davis: ‘The reason
we use trial-type procedure, I think, is that we make
the practical judgment, on the basis of experience, that
taking evidence subject to cross-examination and rebut-
tal, is the best way to resolve controversies involving
disputes of adjudicative facts, that is, facts pertaining to
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Cite as 298 Neb. 306the parties. . . .’ [Quoting from K. Davis, A System of
Judicial Notice Based on Fairness and Convenience, in
Perspectives of Law 69 (1964).]”
State v. Vejvoda, 231 Neb. at 676, 438 N.W.2d at 467.
Here, the factual basis provided by the State for Ashley’s
admission, which is disputed by Kenny, did not “‘possess
[the] requisite degree of certainty’” that is required for judicial
notice, since the veracity of the facts offered was not subject
to any test by Kenny at the time of Ashley’s admission. See id.We conclude that this procedure of judicially noticing adjudi-
cative facts against a parent who challenges those facts, with-
out providing that parent the opportunity to respond to the act
of judicial notice, was in error. And we do not consider such
facts in evaluating the sufficiency of the evidence.
Sufficiency of Evidence
of R isk of H arm
[9-12] Next, Kenny claims that the juvenile court erred in
finding sufficient evidence that the children were at risk for
harm and therefore came within the meaning of § 43-247(3)(a).
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 § 43-247. In re Interest of Justine
J. et al., 286 Neb. 250, 835 N.W.2d 674 (2013). “Section
43-247(3)(a) outlines the basis for the juvenile court’s jurisdic-
tion 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.’” In re Interest of Justine
J. et al., 286 Neb. at 253, 835 N.W.2d at 677. While the State
need not prove that the child has actually suffered physical
harm, Nebraska case law is clear that at a minimum, the State
must establish that without intervention, there is a definite risk
of future harm. In re Interest of Justine J. et al., supra. The
State must prove such allegations by a preponderance of the
evidence. Id.
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IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306As to Kenny, the petition alleged, in relevant part, that
Lilly and Vincent came within the meaning of § 43-247(3)(a)
due to domestic violence between Kenny and Ashley which
placed the children at risk for harm. Disregarding the judi-
cially noticed adjudicative facts, the evidence supporting this
allegation consisted of Ashley’s in-court testimony that Kenny
pushed her once while outside the children’s presence and the
juvenile court’s judicial notice of the adjudication of the chil-
dren as to Ashley, pursuant to § 43-247(3)(a).
[13] As the juvenile court observed, “a court need not await
certain disaster to come into fruition before taking protective
steps in the interest of a minor child.” In re Interest of S.L.P.,
230 Neb. 635, 639, 432 N.W.2d 826, 830 (1988). Conceivably,
a child need not witness domestic violence or be in the vicin-
ity in order to be placed at risk for harm. For example, if a
child observed the subsequent results of domestic violence
or was otherwise made aware of the domestic violence, this
could constitute a risk for harm to the child. But to support
adjudication, this court has required an evidentiary nexus
between a parent’s fault or habits and the risk for harm to
the child. See In re Interest of Justine J. et al., supra. Here,
without additional evidence of the actual or potential effects
of the domestic violence on Lilly and Vincent, there is insuf-
ficient evidence in the record to find that they were placed
at risk for harm by Kenny’s actions. Therefore, we conclude
that the juvenile court erred in finding sufficient evidence that
the children were at risk for harm due to any faults or habits
of Kenny and that it erred in adjudicating the children on
that basis.
Due Process Claims
Finally, Kenny claims that § 43-247(5), as construed by
this court, unconstitutionally deprives a “non-adjudicated” par-
ent of his or her procedural due process rights under the U.S.
and Nebraska Constitutions. Brief for appellant at 13. Further,
Kenny claims that he was denied due process of law when the
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Cite as 298 Neb. 306juvenile court entered dispositional orders as to him without
providing notice or a reasonable opportunity to be heard. We
shall address these assignments of error together, since they
are intertwined.
In relevant part, § 43-247 provides:
The juvenile court in each county shall have jurisdic-
tion of:
....
(3) [a]ny juvenile (a) . . . who lacks proper parental
care by reason of the fault or habits of his or her parent,
guardian, or custodian [and]
....
(5) [t]he parent, guardian, or custodian of any juvenile
described in this section.
Under our previous interpretations of § 43-247(5), when a child
is adjudicated as a child within the meaning of § 43-247(3)(a),
a juvenile court can also exercise jurisdiction over a nonadjudi-
cated parent, that is, a parent who did not deprive the child of
proper parental care due to his or her faults or habits. See, In
re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d 758(2005); In re Interest of Amber G. et al., 250 Neb. 973, 554
N.W.2d 142 (1996). It is this application of § 43-247(5) that
Kenny challenges and which we now uphold.
Kenny claims that our previous holdings applying
§ 43-247(5) to nonadjudicated parents fail to address “the
State’s burden to show the parent is unfit” and “unfairly
deprive[] parent[s] of their fundamental interest in the care and
custody of their children without due process of law.” Brief for
appellant at 13. Notably, Kenny fails to cite any specific legal
authority to support his contention that our previous analyses
are incorrect.
[14] Instead, Kenny points to two principles. First, he cites
our description of procedural due process in the context of a
juvenile adjudication:
“‘“[P]rocedural due process includes notice to the
person whose right is affected by the proceeding;
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Cite as 298 Neb. 306reasonable opportunity to refute or defend against the
charge or accusation; reasonable opportunity to con-
front 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 impar-
tial decisionmaker.”’”
In re Interest of Heather R. et al., 269 Neb. 653, 659-60, 694
N.W.2d 659, 665 (2005) (quoting In re Interest of Mainor T. &
Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004)).
[15-18] Second, Kenny relies on the parental preference
principle, under which a parent’s natural right to the custody
of his or her child trumps the interests of strangers, including
the State, to the parent­child relationship and the preferences of
the child. See In re Interest of Sloane O., 291 Neb. 892, 870
N.W.2d 110 (2015). 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.
Id. Absent circumstances which justify terminating a parent’s
constitutionally protected right to care for his or her child, due
regard for the right requires that a biological or adoptive par-
ent be presumptively regarded as the proper guardian for his
or her child. Id. The doctrine is applicable even to an adjudi-
cated child. Id.We dealt with a similar claim in In re Interest of Amber G.
et al., 250 Neb. 973, 554 N.W.2d 142 (1996), where one par-
ent asserted that the process of waiting until the dispositional
hearing to determine placement is unconstitutional as applied
to a nonadjudicated parent. In In re Interest of Amber G. et al.,
we found that despite no allegations against one parent, both
parents were subject to the jurisdiction of the juvenile court
after an adjudication hearing found the children to be within
§ 43-247(3)(a). Further, we found that both parents’ rights were
protected by the two-step process of adjudication and disposi-
tion. We stated:
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Cite as 298 Neb. 306In Nebraska, the rights of the parent and the child are
protected by the separate adjudication and dispositional
phases of the dependency proceeding. A petition brought
under § 43-247(3)(a) is brought on behalf of the child,
not to punish the parents. . . . The purpose of the adjudi-
cation phase of the proceeding is to protect the interests
of the child; the purpose of the dispositional phase is to
determine placement and the rights of the parties in the
action. . . . It is not improper for the court to sustain juris-
diction at the adjudication phase if the State [establishes
a] lack of proper parental care in the child’s present liv-
ing situation.
Id. at 980, 554 N.W.2d at 148 (citations omitted).
[19] Kenny asserts that his rights are not protected by wait-
ing until the dispositional phase to address them; however,
the adjudication stage represents the initial process whereby
the juvenile court determines whether the child is subject to
its jurisdiction pursuant to § 43-247. 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 rela-
tionship is proper under the law. In re Interest of J.S., A.C.,
and C.S., 227 Neb. 251, 262, 417 N.W.2d 147, 155 (1987).
To accomplish such a goal and fashion a dispositional rem-
edy beneficial to the juvenile, the juvenile court should have
access to the best available evidence which is relevant, reli-
able, and trustworthy concerning a correct disposition for the
juvenile. Id.This in turn leads to Kenny’s next contention, which involves
the following language from In re Interest of Amber G. et al.,
250 Neb. at 984, 554 N.W.2d at 150:
Where there are two parents with separate homes, the
children can be removed from the home of the unfit par-
ent at the adjudication hearing without prejudicing the
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IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306other parent’s right to gain custody of the child at the
dispositional hearing upon a sufficient showing that he or
she is capable of providing proper parental care.
(Emphasis supplied.) Kenny argues that “permitting a non-
adjudicated parent to gain custody of his or her child ‘upon a
sufficient showing that he or she is capable of providing proper
care’” improperly shifts the burden of proving parental fitness
to the parent, thereby relieving the State of its burden of proof.
Brief for appellant at 18.
We perceive the contradictory nature of the aforementioned
language from In re Interest of Amber G. et al., 250 Neb. 973,
982, 554 N.W.2d 142, 149 (1996), wherein we also stated:
This court has long held that in a child custody contro-
versy between a biological or adoptive parent and one
who is neither a biological nor an adoptive parent of
the child involved in the controversy, a fit biological or
adoptive parent has a superior right to the custody of the
child. . . . A court may not properly deprive a biologi-
cal or adoptive parent of the custody of the minor child
unless it is affirmatively shown that such parent is unfit
to perform the duties imposed by the relationship or has
forfeited that right; neither can a court deprive a parent of
the custody of a child merely because the court reason-
ably believes that some other person could better provide
for the child.
(Citation omitted.) To the extent that In re Interest of Amber
G. et al. places the initial burden on the nonadjudicated par-
ent at a dispositional hearing to show parental fitness, it
is disapproved.
[20-22] However, upon a showing at a dispositional hearing
by the State or another interested party or a predispositional
report that raises concerns about the parental fitness of a non-
adjudicated parent, that parent has the burden to rebut such
evidence. This is consistent with our precedent that 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
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306child to a parent under any and all circumstances. In re Interest
of Amber G. et al., supra. Instead, the parent’s natural right is
limited by the State’s power to protect the health and safety of
the children. Id. The best interests of the child 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. Id.
If we accepted Kenny’s premise, a child would automati-
cally be placed with the nonadjudicated parent until a hearing
could be scheduled, which means that pending the placement
hearing, the child would be placed in an unknown situation.
We understand that much of the time, placement with the
nonadjudicated parent would be appropriate. Unfortunately,
however, there are those limited situations where placement
with the nonadjudicated parent would cause harm to the child.
At the same time, we also understand that the government
is not a substitute for parents. But there must be a balancing
between the rights of parents and the best interests of the child.
See In re Interest of Cassandra B. & Moira B., 290 Neb. 619,
861 N.W.2d 398 (2015). Certainly, Kenny, as a parent, would
be the preferred placement for Lilly and Vincent, but without
any information about his situation, the juvenile court would
have insufficient evidence to fashion a disposition that served
the children’s best interests. See Neb. Rev. Stat. § 43-283.01(Reissue 2016).
[23] Finally, we recognize that Neb. Rev. Stat. § 43-267(2)
(Reissue 2016) requires that as a party, the parent shall receive
notice of the dispositional hearing. Such notice ensures that
the rights of the adjudicated and nonadjudicated parents are
recognized. Unfortunately, those procedures were not fol-
lowed in this situation. Kenny was not provided notice of
the dispositional hearing and was thereby deprived of the
opportunity to address any placement concerns or his paren-
tal fitness. Therefore, we vacate the dispositional order of
the juvenile court and remand this cause back to that court
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE INTEREST OF LILLY S. & VINCENT S.
Cite as 298 Neb. 306for a dispositional hearing for Kenny after proper notice to
all parties.
CONCLUSION
For the foregoing reasons, we affirm in part and in part
vacate the juvenile court’s decision and remand the cause for
further proceedings.
A ffirmed in part, and in part vacated
and remanded with directions.
Wright, J., not participating.