In re Interest of Josiah T.

ignition interlock device is, again, a clear indication that driv-
ers whose operator’s licenses have been revoked for 1 year for
multiple offenses are eligible to apply for an employment driv-
ing permit; the Legislature could have easily, again, specified
that only drivers whose operator’s licenses have been revoked
for a period of 90 days are eligible for an employment driving
permit, but it chose not to.
As a result, we conclude that the district court erred in
concluding that there is a conflict between §§ 60-4,129 and
60-498.02(2). There is no conflict; the former confers a general
benefit on drivers whose operator’s licenses have been revoked,
and the latter imposes a restriction to that benefit on a portion
of such drivers. Under the statutory scheme in effect at the time
of Bazar’s offense, the intent of the Legislature as ascertained
from the plain meaning of the language used, when read to
give effect to all provisions, was that drivers whose operator’s
licenses have been revoked for a period of 1 year were eligible
to apply for an employment permit. The district court erred in
concluding that the statutes denied this benefit to Bazar and
that Rule 027.03 was consistent with the statutes. As such, we
reverse, and remand with directions to enter an order consistent
with this opinion.
V. CONCLUSION
We find that the district court erred in dismissing Bazar’s
petition. We reverse, and remand with directions to enter an
order consistent with this opinion.
R eveRsed and Remanded with diRections.
in Re inteRest of Josiah t., a child undeR 18 yeaRs of age .
state of nebRaska , appellee , v.
sonia m., appellant.
773 N.W.2d 161
Filed September 8, 2009. 	No. A-08-1214.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
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Cite as 17 Neb. App. 919
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

2. Juvenile Courts: Parental Rights: Evidence: Proof. For a juvenile court to
terminate parental rights under Neb. Rev. Stat. § 43-292 (Reissue 2008), it must
find by clear and convincing evidence that one or more of the statutory grounds
listed in this section have been satisfied and that termination is in the child’s
best interests.
3. Parental Rights: Abandonment: Intent: Words and Phrases. Abandonment,
for the purpose of Neb. Rev. Stat. § 43-292(1) (Reissue 2008), is a parent’s
intentionally withholding from a child, without just cause or excuse, the parent’s
presence, care, love, protection, maintenance, and the opportunity for the display
of parental affection for the child.
4. Parental Rights: Abandonment: Proof. To prove abandonment, the evidence
must clearly and convincingly show that the parent has acted toward the child in
a manner evidencing a settled purpose to be rid of all parental obligations and to
forgo all parental rights, together with a complete repudiation of parenthood and
an abandonment of parental rights and responsibilities.
5. Parental Rights. While a parent’s incarceration, standing alone, does not pro-
vide grounds for termination of parental rights, a parent’s incarceration may be
considered along with other factors in determining whether parental rights can be
terminated based on neglect.
6. Judicial Notice. A trial court may take judicial notice of its own proceedings and
judgment where the same matters have already been considered and determined.
7. Parental Rights: Judicial Notice: Records. In a proceeding to terminate paren-
tal rights, papers requested to be judicially noticed must be marked, identified,
and made a part of the record; testimony must be transcribed, properly certi-
fied, marked, and made a part of the record; and the trial court’s ruling in the
termination proceeding should state and describe what it is the court is judi-
cially noticing.
Appeal from the County Court forh all County: david a.
bush, Judge. Reversed and remanded for further proceedings.
Mark Porto, of Shamberg, Wolf, McDermott & Depue, for
appellant.
Robert 	J. 	Cashoili, 	Deputyh 	all 	County 	Attorney, 	for
appellee.
iRwin, caRlson, and mooRe, Judges.
iRwin, Judge.
I. INTRODUCTION
Sonia M. appeals from the order of theh all County Court,
sitting as a juvenile court, which terminated her parental rights
to her son, Josiah T. On appeal, Sonia challenges the county
court’s finding that her parental rights should be terminated
920 	17N eBRASkAAPP eLLATeR ePORTS

pursuant to Neb. Rev. Stat. § 43-292(1) and (2) (Reissue 2008)
and the court’s finding that termination of her parental rights
is in Josiah’s best interests. Upon our de novo review of the
record, we find that the State failed to adduce sufficient evi-
dence to clearly and convincingly demonstrate that termination
of Sonia’s parental rights is warranted pursuant to § 43-292(1)
or (2), and accordingly, we reverse, and remand for fur-
ther proceedings.
II. BACkGROUND
These proceedings involve Josiah, born in 2006. Although
Josiah’s father’s and Sonia’s parental rights were terminated
during the same proceedings, Josiah’s father does not appeal
from the court’s decision to terminate his parental rights. As
such, the termination of Josiah’s father’s parental rights is not
a subject of this appeal.
In January 2008, Josiah was removed from Sonia’s home
and placed in the custody of the Department ofh ealth and
human Services (DhhS) after Sonia was arrested by federal
authorities. On January 4, 2008, the State filed a petition alleg-
ing that Josiah was a child within the meaning of Neb. Rev.
Stat. § 43-247(3)(a) (Cum. Supp. 2006) through the fault or
habits of Sonia.
On May 13, 2008, an adjudication hearing was held. The
judge’s notes from this hearing indicate that Sonia failed to
appear. The notes also indicate that Josiah was adjudicated on
the allegations in the State’s petition.
On August 5, 2008, the State filed a motion for termination
of Sonia’s parental rights. In the motion, the State alleged that
Josiah was a child within the meaning of § 43-292(1) and (2).
OnOctober 17, 2008, a termination of parental rights hearing
was held. At the hearing, the State called only one witness to
testify in support of the termination of Sonia’s parental rights.
Judy Pfeifer, the DhhS child protection specialist assigned to
the case, testified that Sonia’s parental rights to Josiah should
be terminated.
Pfeifer testified that Josiah has been in the continuous cus-
tody of DhhS since January 2008, when Sonia was arrested.
Pfeifer testified that since January 2008, she has had some
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contact with Sonia. Specifically, Pfeifer testified that Sonia has
telephoned to request pictures of Josiah. Pfeifer indicated that
Sonia did not request visitation with Josiah.
Pfeifer testified that Sonia recently had been convicted of
distribution and possession of illegal drugs and that Sonia
informed her that she had been sentenced to 12 to 15 years’
imprisonment. Pfeifer opined that terminating Sonia’s paren-
tal rights was in Josiah’s best interests, because he “doesn’t
remember” 	Sonia 	and 	he 	“deserves 	permanency.” 	Pfeifer
“recommend[ed] that this little boy be able to get on with
his life.”
Sonia did not appear at the termination hearing.h owever,
after the State rested, Sonia’s counsel offered into evidence a
letter authored by Sonia. In the letter, Sonia stated that she did
not want her parental rights terminated. Sonia indicated that
she wanted visitation with Josiah and contact with Josiah’s
foster parents. Sonia also stated that she was “not going to do
12 [years].” She wrote, “At the most I might do 4 [years]. But
at the least is 21⁄2 [years].”
At the close of the evidence, the county court immediately
rendered its decision from the bench. The court terminated
Sonia’s parental rights to Josiah. The court found “by clear and
convincing evidence that [Sonia] abandoned [Josiah] for six
months or more immediately prior to the filing of the motion
to terminate parental rights.” The court also found that Sonia
had “substantially and continuously or repeatedly neglected
[Josiah] and refused to give him necessary parental care and
protection.” Finally, the court found that “it would be in the
best interests of [Josiah] that the parental rights of [Sonia]
be terminated.”
Sonia timely appeals from the county court’s decision to
terminate her parental rights.
III. ASSIGNMeNTS OFe RROR
On appeal, Sonia challenges the county court’s finding that
her parental rights should be terminated pursuant to § 43-292(1)
and (2) and the court’s finding that termination of her parental
rights is in Josiah’s best interests.
922 	17N eBRASkAAPP eLLATeR ePORTS

IV. ANALYSIS
1. standaRd of R eview
[1] Juvenile cases are reviewed de novo on the record, and
an appellate court is required to reach a conclusion indepen-
dent of the juvenile court’s findings. In re Interest of Jagger L.,
270 Neb. 828, 708 N.W.2d 802 (2006). When the evidence is
in conflict, however, an appellate court may give weight to the
fact that the lower court observed the witnesses and accepted
one version of the facts over the other. Id.
[2] For a juvenile court to terminate parental rights under
§ 43-292, it must find that one or more of the statutory grounds
listed in this section have been satisfied and that termination is
in the child’s best interests. See id. The State must prove these
facts by clear and convincing evidence. Id. Clear and convinc-
ing evidence is that amount of evidence which produces in the
trier of fact a firm belief or conviction about the existence of a
fact to be proven. Id.
2. statutoRy gRounds foR teRmination
In Sonia’s first assignment of error, she alleges that the
county court erred in finding that the State presented clear and
convincing evidence to prove the statutory grounds for termi-
nation of her parental rights. Specifically, she challenges the
county court’s determination that termination of her parental
rights was warranted pursuant to § 43-292(1) and (2). Upon our
de novo review of the record, we determine that the evidence
does not clearly and convincingly establish that Sonia aban-
doned or neglected Josiah pursuant to § 43-292(1) and (2).
(a) § 43-292(1)
[3] Section 43-292(1) provides that the court may terminate
parental rights when the parent has “abandoned the juvenile
for six months or more immediately prior to the filing of the
petition” to terminate parental rights. “Abandonment,” for the
purpose of § 43-292(1), is a parent’s intentionally withholding
from a child, without just cause or excuse, the parent’s pres-
ence, care, love, protection, maintenance, and the opportunity
for the display of parental affection for the child. In re Interest
of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992). The question of
INR eINT eReSTOFJOSIA hT . 	923
Cite as 17 Neb. App. 919

abandonment is largely one of intent, to be determined in each
case from all of the facts and circumstances. Id.
[4] To prove abandonment, the evidence must clearly and
convincingly show that the parent has acted toward the child in
a manner evidencing a settled purpose to be rid of all parental
obligations and to forgo all parental rights, together with a
complete repudiation of parenthood and an abandonment of
parental rights and responsibilities. In re Interest of B.A.G., 235
Neb. 730, 457 N.W.2d 292 (1990).
It is clear from the record that Sonia has not had contact
with Josiah for over 6 months. Josiah was removed from
Sonia’s home in January 2008 and has remained in the custody
of DhhS since that time. As such, at the time of the termina-
tion hearing on October 17, 2008, Josiah had been in the cus-
tody of DhhS for approximately 9 months. There is no dispute
that Sonia had not had any contact with Josiah during these
9 months.
Although Sonia has not had any contact with Josiah in
approximately 9 months, this evidence does not, by itself, prove
abandonment. As we discussed above, a showing of abandon-
ment requires more than an extended absence in a child’s life.
A finding of abandonment requires a settled purpose to be
rid of all parental obligations and to forgo all parental rights,
together with a complete repudiation of parenthood and an
abandonment of parental rights and responsibilities. See In re
Interest of B.A.G., supra.
Upon our de novo review of the record, we find that the
State has failed to prove by clear and convincing evidence that
Sonia possessed a settled purpose to be rid of all of her paren-
tal obligations or to forgo all of her parental rights.
The State’s evidence at the termination hearing consisted
of approximately eight pages of testimony from Pfeifer, the
DhhS child protection specialist responsible for managing
Josiah’scase. In fact, much of Pfeifer’s testimony related to ter -
minating the parental rights of Josiah’s father. Approximately
two pages of testimony focused on terminating Sonia’s paren-
tal rights.
The majority of the two pages of testimony concerned
Sonia’s criminal conviction and sentence. Pfeifer testified
924 	17N eBRASkAAPP eLLATeR ePORTS

that Sonia had been convicted of “[d]istribution and pos-
session of illegal drugs” and was serving a 12- to 15-year
sentence 	in 	Leavenworth,k 	ansas. 	Pfeifer 	indicated 	that
Sonia informed Pfeifer of her sentence during a recent tele-
phone conversation.
The Nebraska Supreme Court has held that parental incar-
ceration may be considered in reference to abandonment as a
basis for termination of parental rights. In re Interest of L.V.,
240 Neb. 404, 482 N.W.2d 250 (1992).h owever, the court has
also indicated that
“[i]ncarceration of a parent, standing alone, does not
furnish a ground for automatic termination of parental
rights. . . . Incarceration, however, does not insulate
an inmate from the termination of his parental rights if
the record contains the clear and convincing evidence
that would support the termination of the rights of any
other parent.”
Id. at 418, 482 N.W.2d at 259-60 (quoting In re Randy Scott B.,
511 A.2d 450 (Me. 1986)).
here, the State’s case centered on Sonia’s criminal convic-
tion and sentence and her inability to care for Josiah while she
was incarcerated. Pfeifer testified that Sonia would be incarcer-
ated for 12 to 15 years and that Josiah deserved to gain perma-
nency during this time.
Despite the State’s reliance on Sonia’s incarceration as the
sole basis for terminating her parental rights, the State failed to
present any concrete evidence concerning Sonia’s sentence or
expected release date. Rather, Pfeifer testified that her knowl-
edge of Sonia’s sentence came from Sonia. Sonia indicated in
her letter that Pfeifer was incorrect about the length of her sen-
tence and wrote that she may be released in approximately 21⁄2
years. Given the lack of evidence concerning essential details
of Sonia’s sentence, we cannot say that the length of Sonia’s
incarceration, by itself, warrants termination of her parental
rights pursuant to § 43-292(1).
Furthermore, the State failed to present any other evidence
to demonstrate that Sonia had abandoned Josiah pursuant to
§ 43-292(1). Pfeifer testified that during the 9 months that
Sonia was away from Josiah, Sonia kept in contact with her
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by telephone. Pfeifer testified that Sonia did request pictures
of Josiah, but did not request visitation with him. It is not
clear from the record whether Sonia would have been able
to exercise any visitation with Josiah while she was incarcer-
ated. This limited evidence does not clearly and convincingly
demonstrate that Sonia possessed a settled purpose to be rid
of all of her parental obligations or to forgo all of her paren-
tal rights.
Additionally, in Sonia’s letter, she explicitly stated that she
wanted to continue to be a part of Josiah’s life. Specifically,
Sonia indicated that she did not want her parental rights termi-
nated. She explained that she would like to have visitation with
Josiah and contact with Josiah’s foster parents. Sonia indicated
that she would like to be involved in any decision about a
future placement for Josiah. Sonia indicated that she wanted
Josiah to be placed with a family member.
Upon our de novo review of all of the evidence presented at
the termination hearing, we find that the State failed to present
clear and convincing evidence that Sonia abandoned Josiah
pursuant to § 43-292(1).e vidence of Sonia’s incarceration,
without more, does not provide clear and convincing evidence
of abandonment.
(b) § 43-292(2)
[5] Section 43-292(2) provides that the court may terminate
parental rights when the parent has “substantially and contin-
uously or repeatedly neglected and refused to give the juvenile
. . . necessary parental care and protection.” While a parent’s
incarceration, standing alone, does not provide grounds for
termination of parental rights, a parent’s incarceration may be
considered along with other factors in determining whether
parental rights can be terminated based on neglect. In re
Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 (1999). The
Nebraska Supreme Court has recognized that in termination of
parental rights cases, it is proper to consider a parent’s inability
to perform his or her parental obligations because of imprison-
ment, the nature of the crime committed, as well as the person
against whom the criminal act was perpetrated. Id. See, also, In
re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).
926 	17N eBRASkAAPP eLLATeR ePORTS

In this case, the State’s evidence centered on Sonia’s drug-
related conviction and sentence.h owever, the State did not
present concrete evidence to demonstrate the exact circum-
stances of Sonia’s arrest, conviction, or sentence. There is
nothing in the record to indicate exactly what crime Sonia was
convicted of, and there is conflicting evidence concerning the
length of Sonia’s sentence. Pfeifer testified that Sonia was con-
victed of “[d]istribution and possession of illegal drugs.” We
do not have any further information about Sonia’s conviction.
And, although Pfeifer testified that Sonia informed her that she
would be incarcerated for 12 to 15 years, Sonia indicated that
she would be incarcerated for only 21⁄2 to 4 years.
We can infer that Sonia will be unable to provide for most
of Josiah’s needs as long as she is incarcerated.h owever, we
cannot say with any precision how long Sonia will be away
from Josiah.
The State offered no other evidence at the termination hear-
ing to prove Sonia has neglected Josiah pursuant to § 43-292(2).
In its brief to this court, the State argues that Sonia has shown
a pattern of drug abuse and incarceration and that such a pat-
tern demonstrates neglect. In support of its argument, the State
refers to an exhibit admitted into evidence at a previous dis-
position hearing, but not at the termination hearing. Upon our
review of the record, we conclude that because this exhibit was
not marked, offered, or received into evidence at the termina-
tion hearing, it was not properly made a part of the record and
should not be considered in a determination of whether Sonia’s
parental rights should be terminated.e xhibit 5 is a case report
authored by Colettee vans, the DhhS child protection special-
ist managing Josiah’s case in July 2008.e vans did not appear
at the termination hearing. In the report,e vans indicates that
Sonia had been previously incarcerated for a drug-related
offense immediately prior to and at the time of Josiah’s birth.
This report was admitted into evidence at an August 5, 2008,
disposition hearing. The transcription of this hearing and the
accompanying exhibit is included in our record.
At the termination hearing, the State offered into evidence
two exhibits. Although these were the first exhibits offered
at the termination hearing, the court continued its numbering
INR eINT eReSTOFJOSIA hT . 	927
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system from previous hearings and the exhibits were marked
as exhibits 6 and 7.e xhibits 6 and 7 demonstrate that the
State gave notice of the termination hearing to both Sonia and
Josiah’s father. The State did not reoffer the case plan admitted
at the disposition hearing into evidence, nor did the State ask
the court to judicially notice that document or any evidence
presented at previous hearings. It is not clear from the record
whether the county court considered this evidence in terminat-
ing Sonia’s parental rights; however, because this exhibit was
not marked, offered, or received into evidence at the termina-
tion hearing, it was not properly made a part of the record and
we do not consider it in our analysis.
[6] We digress briefly to discuss the proper manner for offer-
ing into evidence an exhibit admitted at a previous hearing. A
trial court may take judicial notice of its own proceedings and
judgment where the same matters have already been considered
and determined. See In re Interest of N.M. and J.M., 240 Neb.
690, 484 N.W.2d 77 (1992).h owever, a trial court cannot take
judicial notice of disputed allegations. Id.
[7] The Nebraska Supreme Court has indicated that evidence
from a prior hearing may be judicially noticed. The court has
provided the following guidelines for offering such evidence:
“Papers requested to be noticed must be marked, identi-
fied, and made a part of the record. Testimony must be
transcribed, properly certified, marked and made a part
of the record. Trial court’s ruling in the termination pro-
ceeding should state and describe what it is the court
is judicially noticing. Otherwise, a meaningful review
is impossible.”
In re Interest of C.K., L.K., and G.K., 240 Neb. 700, 709, 484
N.W.2d 68, 73 (1992). Accord In re Interest of Tabitha J., 5
Neb. App. 609, 561 N.W.2d 252 (1997).
As such, the State must do more than include evidence from
a prior hearing in the appellate record. Rather, the State must
mark and identify the evidence and make the evidence a part of
the record at the trial court level.
Because exhibit 5 was not properly received into evidence
at the termination hearing, there was nothing presented at the
termination hearing to demonstrate that Sonia was previously
928 	17N eBRASkAAPP eLLATeR ePORTS

incarcerated or that she had a history of drug problems. In
fact, we note that Pfeifer testified that she had no knowledge
that Sonia had any previous involvement with DhhS, which
testimony indicates Pfeifer’s lack of knowledge about Sonia’s
previous incarceration at the time of Josiah’s birth.
We conclude that evidence of Sonia’s present incarceration,
without more, does not provide clear and convincing evidence
of neglect.
Upon our de novo review of the record, we find that the State
failed to adduce sufficient evidence to clearly and convincingly
demonstrate that termination of Sonia’s parental rights is war-
ranted pursuant to § 43-292(1) or (2). Because the State failed
to prove that one or more of the statutory grounds listed in
§ 43-292 have been satisfied, we conclude that the county court
erred in terminating Sonia’s parental rights. Accordingly, we
reverse, and remand for further proceedings.
3. best inteRests
Sonia also alleges that the county court erred in determin-
ing that termination of her parental rights is in Josiah’s best
interests.h owever, because we conclude that the State failed to
provide sufficient evidence to prove that termination of Sonia’s
parental rights was warranted pursuant to § 43-292(1) or (2)
and remand for further proceedings, we do not address Sonia’s
second assignment of error. An appellate court is not obligated
to engage in an analysis which is not necessary to adjudicate
the case and controversy before it. Curtis v. Curtis, 17 Neb.
App. 230, 759 N.W.2d 269 (2008).
V. CONCLUSION
Upon our de novo review of the record, we find that the State
failed to adduce sufficient evidence to clearly and convincingly
demonstrate that termination of Sonia’s parental rights is war-
ranted pursuant to § 43-292(1) or (2). As such, the county court
erred in terminating Sonia’s parental rights and we reverse, and
remand for further proceedings.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
caRlson, Judge, concurs.
INR eINT eReSTOFJOSIA hT . 	929
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