SUMMARY: Adjudication and termination of parental rights was improper when petition did not allege any wrongdoing as to the daughter. The parents’ due process rights were violated when they were not advised of the potential consequence of termination of parental rights before they admitted to the allegations in the petition. Additionally, the father’s due process rights were violated when he was deprived of counsel for a substantial period of time.
On January 14, 1987, a petition was filed as to Nicole (DOB 3/3/1982) and James (DOB 10/1/1984) alleging James had injuries without an explanation and Nicole had been sexually abused by her father, J.M. At the adjudication hearing on 3/16/1987, the court advised the parents of certain rights, but did not advise of the possibility of termination of parental rights. The mother, R.M., and J.M. admitted to James’s injuries and that they were not able to provide an explanation for those injuries, but did not admit to the sexual assault of Nicole. The adjudication order did not contain any factual findings. J.M.’s attorney withdrew on 7/8/1987 and J.M. was not appointed a new attorney until 7/5/1988. At review hearings that were conducted while J.M. did not have legal representation, a report was entered into evidence with statements that Nicole had reported sexual abuse from J.M. In the termination of parental rights order, the district attorney requested the court to take judicial notice of the records, exhibits and orders in the case, which the court granted. The court terminated J.M.’s and R.M.’s parental rights.
The Nebraska Supreme Court reversed and remanded the case for further proceedings as to James, and reversed and dismissed as to Nicole. The Court reversed and ordered the dismissal of the case as to Nicole because the facts alleged in the petition and the evidence introduced at the hearings did not include any actions concerning the father or the mother as to Nicole. Therefore, the court did not have jurisdiction over Nicole. Additionally, J.M.’s due process rights were violated when he was without an attorney for a year, during which time damaging evidence was introduced. Both J.M.’s and R.M.’s were deprived of due process because they were not advised of the possibility of termination prior to admitting to allegations in the petition. The request for the court to take judicial notice was improper because a trial court cannot take judicial notice of disputed allegations. Therefore the Supreme Court remanded to case as to James.