SUMMARY: Because the father did not show how he was prejudiced by judicial notice of evidence in the earlier adjudication hearing, there was no finding that the court erred. A district court order denying an ex parte protection order was properly excluded because it only included the judge’s opinions as to the parties’ actions to protection order proceedings without consideration of evidence and was therefore irrelevant.
David and Tanya are the parents of Shayla H. (DOB 8/01), Shania H. (DOB 8/03), and Tanya H. (DOB 9/04). An abuse/neglect petition was originally filed as to David’s behavior (domestic violence and drug use) on February 15, 2008. On September 25, 2009, this matter came on for adjudication a second time after the Nebraska Court of Appeals remanded the case because the initial pleadings did not contain the requisite allegations under Nebraska ICWA. In re Interest of Shayla H. et al, 17 Neb. App. 436, 764 N.W.2d 119 (2009). Upon remand, the State filed an amended petition with identical allegations but including the proper ICWA language. At adjudication, the court took judicial notice of the record created at the first adjudication hearing. The State rested its case and David presented testimony from Tanya and a drug tester. Evidence from the State established that David had a history of physically and verbally abusing Tanya in the presence of the children, had obtained protection orders against Tanya to control her and her access to the children and had used methamphetamine on a regular basis. On November 29, 2009, the court adjudicated the children within the meaning of N.R.S. 43-247(3)(a). David appealed.
The Nebraska Court of Appeals affirmed the adjudication. The Court of Appeals first held that there can be no showing the court erred in taking judicial notice because David did not show how he was prejudiced by judicial notice as opposed to recalling each witness to testify. It then agreed that a copy of a motion for change in visitation was properly excluded as hearsay because it included the affidavit of a person not subject to cross-examination. It also agreed with the exclusion of a district court order denying an ex parte protection order because it only included the judge’s opinions as to the parties’ actions to protection order proceedings without consideration of evidence and was therefore irrelevant. Finally, the Court of Appeals affirmed the juvenile court finding the children within 43-247(3)(a), supporting the court’s finding the witnesses credible.