Interest of R.A., In re

• Decision Date: 31 July 1987
• Docket Number: No. 86-964,86-964
• Parties: In re Interest of R.A., a Child Under 18 Years of Age. STATE of Nebraska, Appellee, v. D.K., Appellant.
• Court: Nebraska Supreme Court

Page 110

410 N.W.2d 110

226 Neb. 160

In re Interest of R.A., a Child Under 18 Years of Age.

STATE of Nebraska, Appellee, v. D.K., Appellant.

No. 86-964.

Supreme Court of Nebraska.

July 31, 1987.

Syllabus by the Court

1. Judicial Notice: Records. A court must take judicial notice of its own records in the case under consideration.

2. Parental Rights: Trial. Because the record must establish by clear and convincing evidence the basis for termination of parental rights, the observance of formal court procedures is encouraged.

3. Parental Rights: Trial. When the State seeks to terminate parental rights, it is required to do so by fundamentally fair procedures which satisfy the requirements of due process. Parents in such proceedings have a right to cross-examine adverse witnesses.

4. Juvenile Courts: Records. Separate juvenile courts must make a verbatim record of evidentiary proceedings before them.

5. Parental Rights: Appeal and Error. An order of termination of parental rights is reviewed de novo, and evidence erroneously admitted is not considered.

6. Parental Rights. An order of termination of parental rights must be supported by clear and convincing evidence and should only be issued when there is no reasonable alternative.

7. Parental Rights. Where a parent fails to rehabilitate herself within a reasonable period of time, the best interests of the child may require that a final disposition be made without delay.

8. Parental Rights: Abandonment. A voluntary departure from the state may be viewed as an abandonment of one's children and cannot be used as an excuse for the impossibility of compliance with a court-ordered plan of rehabilitation.

9. Parental Rights. A parent is required not only to follow the plan of the court to rehabilitate herself but also to make reasonable efforts on her own to bring about rehabilitation.

10. Parental Rights. A child's future need not be subject to the risks of awaiting uncertain parental maturity.

11. Parental Rights. Indefinite foster care is not an acceptable alternative where the evidence suggests the need for a fixed and permanent home.

Julie A. Frank of Pollak & Frank, Omaha, for appellant.

Patrick Kelly, Sarpy County Atty., and Lawrence D. Gendler, Papillion, for appellee.

Deborah R. Pred of Fiedler, Kushner & Pred, Omaha, guardian ad litem.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

D.K., the mother, appeals from the September 22, 1986, order of the separate juvenile court of Sarpy County, Nebraska, terminating her parental rights to her daughter, R.A.

The child was born on April 24, 1976, to L.A. and D.K. The couple was divorced in February of 1981, with custody of the child awarded to the mother. She returned custody of the child to the father within 3 days following entry of the decree. Later in 1981, after regaining custody of the child, the mother enlisted in the Army and again relinquished custody to the father.

In August of 1983, the father turned custody of the child over to the separate juvenile court and requested its assistance. The mother was unavailable as an immediate custodial parent at that time because she was still in the service and was stationed in Virginia. Prior to the father's request for assistance from the court, the child was hospitalized at the Nebraska Psychiatric Institute from May 6 to July 16, 1983. She was diagnosed there as suffering an adjustment disorder with mixed disturbance of emotion. The hospitalization was precipitated by the child's threats to kill her stepmother and to burn down the family residence. These threats continued after her hospitalization. At that point, the child's father requested that his mother, the child's grandmother, take custody of the child. Subsequent to taking custody of her, the grandmother contacted the court requesting assistance for the child. Upon being detained, the child was placed in Midlands Hospital and, within a week of being there, alleged that she had been sexually abused by her paternal grandfather, A.A.

On August 15, 1983, a petition was filed in the separate juvenile court alleging that the child was homeless, destitute, or without proper support through no one's fault. See Neb.Rev.Stat. § 43-247(3)(a) (Cum.Supp.1982). The child's mother's address was listed as unknown in the petition.

Following an October 4, 1983, hearing on the petition, the child was adjudicated to be a child within the meaning of § 43-247(3)(a) and was placed in the custody of the Nebraska Department of Social Services. At the October 4 hearing, the father stipulated to the truth of the contents of the petition. The court relied on its own "social file" to establish a factual basis for the stipulation. The social file, otherwise known as the predisposition evaluation, was not offered into evidence. The mother was not present or represented by counsel at this hearing.

Subsequent further dispositional hearings were held on November 23, 1983; April 11, 1984; October 4, 1984; April 18, 1985; October 9, 1985; and April 10, 1986. The mother either appeared with or was represented by counsel at all of these hearings. However, no record of the dispositional hearings was made. The court entered orders pursuant to the hearings requiring the mother to abstain from the consumption or use of alcohol and controlled substances; participate in a Parents United program or its equivalent; participate in counseling; pay the costs of her child's medical care and therapy; submit to chemical and psychological evaluations; complete a parenting program; submit to a home-study evaluation; obtain and maintain housing suitable for herself and her child; and maintain gainful employment. She was also allowed only supervised visitations with her child.

The father relinquished his parental rights to his child on April 4, 1984. From that point on, he and his second wife were no longer subjects of the juvenile court orders.

On June 26, 1986, the Sarpy County deputy county attorney filed a supplemental petition seeking termination of the mother's parental rights to her child. The petition alleged that reasonable efforts under direction of the court had failed to correct the conditions leading to the determination that the child was a child within the meaning of § 43-247(3)(a). Termination was sought pursuant to Neb.Rev.Stat. § 43-292(6) (Reissue 1984).

On September 15, 1986, a hearing was held on the supplemental petition. The mother was not present but was represented by counsel. The State made an oral request that the court take judicial notice of its own records, more specifically its "social file," which encompassed exhibits 1 through 28. The exhibits consisted of the court's predisposition report and an addendum to it; reports and letters from the child's counselor; reports of the Child Protective Services workers; letters to the court from the mother; reports from the mother's counselors; further disposition reports of the court; and a psychological evaluation of the mother. The mother's attorney entered hearsay objections to exhibits 1, 2, 3, 4, 8, 9, 10, 11, 16, 17, 19, 21, 22, 23, 24, 25, 26, 27, and 28. The court stated that exhibits 1 through 28 had all been considered in previous proceedings in the case. Judicial notice of those exhibits was taken.

In addition to the aforementioned exhibits, the State introduced the testimony of the child's therapist, Janet Guilfoyle, and that of the Child Protective Services worker then assigned to the case, Ronda Newman. Newman was also called as the mother's sole witness.

On September 22, 1986, the juvenile court found there was clear and convincing evidence to show that reasonable efforts under the direction of the court had failed to correct the conditions originally leading to the determination that the child was a child within the meaning of § 43-247(3)(a). The court also found that it was in the best interests of the child to terminate the mother's parental rights and ordered the mother's parental rights to her child terminated.

On appeal from the order of termination, the mother essentially raises three issues: (1) whether the juvenile court abused its discretion and committed reversible error by admitting exhibits 1, 2, 3, 4, 8, 9, 10, 11, 16, 17, 19, 21, 22, 23, 24, 25, 26, 27, and 28, which consisted of hearsay where said exhibits were admitted solely because they came from the social file maintained by the juvenile court and were originally admitted into the social file without formal offers by any party, thereby denying appellant the opportunity to object to their admission into the file; (2) whether the evidence was sufficient to support the juvenile court's order terminating the mother's parental rights; and (3) whether the finding that reasonable efforts had failed to correct conditions leading to the determination that R.A. was a child within the meaning of § 43-247(3)(a) was contrary to the evidence presented, offered, and received at trial and was contrary to law.

The mother's first assignment of error is basically that she was denied due process because receipt of the exhibits in question over her hearsay objections denied her the opportunity to cross-examine the witnesses and allowed her parental rights to be terminated on a lesser standard of proof than required.

The issue raised is a result of the juvenile court's failure to make a verbatim record of its dispositional proceedings. Due to that failure, there is no record before this court that the social file exhibits were ever received in evidence prior to their receipt at the termination hearing, that the mother ever had an opportunity to cross-examine the authors of the exhibits, or that she ever had an opportunity to inspect the exhibits prior to their introduction at the adjudication hearing on the supplemental petition. Further, there is no foundation evidence for any of these exhibits.

During the course of the October 4, 1983,...