In re Interest of Josiah T.

SUMMARY: Termination of parental rights on the ground of abandonment and substantial neglect through incarceration was improper because there was no concrete evidence that established the length of incarceration and that the mother abandoned the child. To have records from a prior proceeding judicially noticed, the party must mark and identify the evidence and make it part of the record at trial. 

Josiah, born in 2006, was removed from the mother’s home in January 2008 after the mother was arrested. On May 13, 2008, the child was adjudicated pursuant to 43-247(3)(a) and on August 5, 2008, a motion for termination of parental rights was filed pursuant to 43-292(1) and (2). The father is not part of this appeal. After a hearing on October 17, 2008, the court terminated the mother’s parental rights.
At the termination hearing, the DHHS caseworker testified that she had some contact with the mother, specifically the mother requesting photos of Josiah. The caseworker also testified that the mother told her she had been sentenced to 12 to 15 years for distribution and possession of drugs. The mother was not present at the hearing, and the mother’s attorney submitted a letter from the mother asking for visitation with Josiah and noting that she was sentenced to up to 4 years.

The Court of Appeals reversed the termination of parental rights. Although the mother had not had contact with Josiah for over 6 months, there was no proof of abandonment. Although incarceration may be considered as a factor of abandonment, the State produced no evidence on the mother’s sentence or release date and the mother indicated in a letter that she could be released in 2 ½ years. Absent evidence as to sentence length, incarceration by itself cannot warrant termination. The State failed to produce any other evidence of abandonment.

Incarceration may also be a factor in establishing termination based on neglect; however, the State failed to produce evidence as to length of incarceration or the nature of the sentence. An exhibit from a prior proceeding that referenced patterns of drug abuse were referred to at the termination hearing, but were not properly made part of the record. For a court to take judicial notice of evidence from a prior hearing, the party must mark and identify the evidence and make it part of the record. Because the State did not so, there was insufficient evidence to warrant termination under 43-292(2).