In Re Interest of JKB

414 N.W.2d 266, 226 Neb. 701, 1987 Neb. LEXIS 1059
CourtNebraska Supreme Court
DecidedOctober 23, 1987
Docket86-981
StatusPublished
Cited by14 cases

This text of 414 N.W.2d 266 (In Re Interest of JKB) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Interest of JKB, 414 N.W.2d 266, 226 Neb. 701, 1987 Neb. LEXIS 1059 (Neb. 1987).

Opinions

Caporale, J.

Forty-one-year-old D.R.B. appeals from the judgment of the Clay County Court (sitting as a juvenile court) terminating his parental rights in and to his 9-year-old daughter, C.R.B., and 8-year-old son, J.K.B. The parental rights of the children’s mother were also terminated, but she has not appealed. We are thus concerned only with the rights of the father, who argues the county court erred by (1) improperly receiving certain evidence, (2) failing to appoint counsel, and (3) concluding that the evidence clearly and convincingly establishes grounds for terminating his parental rights. We affirm.

This matter has been pending since July 13, 1982, when petitions were filed alleging the children were within the purview of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 1984), and thus within the jurisdiction of the juvenile court. Specifically, the petitions alleged that the parents neglected or refused to provide for the children’s “proper or necessary subsistence, or other care necessary for the health, morals, or well-being.” Section 43-247 then provided, as it does presently, that the juvenile court have

exclusive original jurisdiction as to ... (3) Any juvenile (a) who is homeless or destitute, or without proper support through no fault of his or her parent, guardian, or custodian;... who lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian; whose parent, guardian, or custodian neglects or refuses to provide proper or necessary subsistence, [703]*703education, or other care necessary for the health, morals, or well-being of such juvenile____

The family had been called to the State’s attention 2 days earlier, when it was alleged the father had broken the arm of one of the mother’s other children. Although the father now denies having broken the child’s arm, he nonetheless pled guilty to the criminal charge arising from the incident. Nearly 4 years later, the State filed a motion to terminate the father’s parental rights, alleging that “reasonable efforts under the direction of the Court have failed to correct the conditions” leading to the determination that the children were within the purview of § 43-247(3)(a).

Neb. Rev. Stat. § 43-292 (Reissue 1984) provided at the relevant time, as it does now:

The court may terminate all parental rights between the parents . . . and such juvenile when the court finds such action to be in the best interests of the juvenile and it appears by the evidence that...
(6) Following a determination that the juvenile is one as described in subdivision (3)(a) of section 43-247, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination.

In connection with his first assignment of error, the father asserts the county court improperly admitted “into evidence in a termination proceeding all documents placed in the court file for adjudication, disposition and review proceedings.”

The documents in question consist of a variety of reports from therapists, social workers, and sundry functionaries. The father objected on the ground, among others, that the reports constituted inadmissible hearsay. Since the reports would have no relevance were they offered for any purpose other than to prove the truth of the matters asserted in them, the reports were indeed hearsay. Neb. Rev. Stat. § 27-801 (Reissue 1985); State v. Williams, 224 Neb. 114, 396 N.W.2d 114 (1986). The record tells us that the father, through counsel, stipulated at one review hearing that certain reports could be admitted if the allegations against him were changed to allege neglect rather than abuse. [704]*704Leaving aside that, so far as we can tell, neglect is all that was ever alleged, the state of the record is such that we cannot determine with certainty what records the stipulation encompassed. Further, there is no verbatim record as to the circumstances under which the myriad other reports were received in the various hearings which preceded the termination proceeding; thus, we cannot determine whether the father had an opportunity to cross-examine the authors of the reports at the time they were received in evidence. While the rules of evidence do not apply at a dispositional hearing, Neb. Rev. Stat. § 43-283 (Reissue 1984), a proceeding to terminate parental rights must employ fundamentally fair procedures satisfying the requirements of due process, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct 1388, 71 L. Ed. 2d 599 (1982), at which parents are entitled to cross-examine adverse witnesses, In re Interest of R.A., ante p. 160, 410 N.W.2d 110 (1987).

While a court must take judicial notice of its own records in the case under consideration, and has the 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 R.A., supra, and State v. Norwood, 203 Neb. 201, 277 N.W.2d 709 (1979), a juvenile court may not, at a proceeding to terminate parental rights, take judicial notice of facts or opinions other than as provided in the rules of evidence. Jorgensen v. Jorgensen, 194 Neb. 271, 231 N.W.2d 360 (1975), an action to modify the custody provisions of a divorce decree, holds that due process requires that witnesses be subject to cross-examination. The Jorgensen court observed that ex parte statements are too unreliable to be considered in the investigation of controverted facts, and ruled that where an investigative report may form the basis for the conclusions or judgment entered, the trial court must submit the report to the parties and permit them to call the person making the report to testify. In re Interest of D., 209 Neb. 529, 308 N.W.2d 729 (1981), found letters written to the court by various welfare agencies and received in evidence without objection nonetheless failed to clearly and convincingly establish the need to [705]*705terminate parental rights. In the course of its opinion the D. court observed that the termination of parental rights is far too important a matter to be done by informal procedures, and encouraged the use of more formal court procedures. Something more than encouragement being needed, we now hold that in proceedings to terminate parental rights, reports may not be received in evidence for the purpose of that proceeding, nor otherwise relied upon by the court, unless they have been admitted without objection or brought within the provisions of Neb. Rev. Stat.

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Cite This Page — Counsel Stack

Bluebook (online)
414 N.W.2d 266, 226 Neb. 701, 1987 Neb. LEXIS 1059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-interest-of-jkb-neb-1987.