SUMMARY: In upholding an order terminating a father’s rights, the court took judicial notice of a Nebraska Supreme Court decision which made the father’s conviction, for second degree murder and child abuse resulting in the death of his daughter Diana, final.Thus, making up for an evidentiary shortcoming from the termination proceeding record.The court determined termination was in the best interests of the child due to the need for permanency and the need to take protective steps to prevent harm to the child.
The father appealed the termination of his parental rights with respect to Jaime M. He argued that since his murder conviction was on appeal, there was no final order certifying that he had been convicted of a criminal offense, and thus, no clear and convincing evidence which made termination appropriate.
Although the records from juvenile court did not clearly identify which subsections of the statute the court used to terminate the father’s rights, the court’s explanation seemed to include all of the statutory grounds. Under §43-292(10), a parent’s rights may be terminated when that parent has committed murder of another child of that parent. However, with the conviction on appeal, the conviction could not be relied upon by the State. Thus, the State “needed to present an independent case establishing grounds for termination of parental rights.” There was no such case made to the juvenile court, so “to the extent that the juvenile court’s order for termination” rested on the criminal conviction, “such a finding cannot stand,” and “grounds for termination” under § 43-292(10) did not exist. The Court of Appeals waited until the conclusion of the criminal appeal, and then took judicial notice of the Nebraska Supreme Court’s conclusion that the convictions be upheld, therefore creating the necessary grounds for termination.
The court then concluded that termination was in Jamie’s best interests because of her need for permanency and the ability of the court to take proactive steps to protect the child.