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In re Kayla F.10/25/2005
(Not Designated for Permanent Publication)
Richard F. Sievers, Carlson, and Cassel, Judges.
INTRODUCTION
Kristina L., formerly known as Kristina F. and the natural mother of the minor children herein, filed a complaint requesting termination of the parental rights of the children's father, Richard F. She now appeals from the order of the county court for Hall County, sitting as a juvenile court, which found the evidence to be insufficient and dismissed her complaint. Because (1) Kristina relied solely upon Richard's court-martial convictions rather than providing other relevant evidence to establish grounds for termination and (2) Richard has been granted leave to appeal his convictions and thus such convictions are not final for collateral estoppel purposes, we find the evidence to be insufficient and therefore affirm the order of the juvenile court.
BACKGROUND
Kristina and Richard married on October 7, 1993. At the time of marriage, Kristina had a daughter from a prior relationship, Kayla F., who was born in April 1992. Richard subsequently adopted Kayla. Kristina and Richard also had two children together: James F., born in June 1994, and Rebecca F., born in October 1997. Kristina and Richard divorced on December 16, 1999.
On December 17, 2003, Kristina filed a "Juvenile Complaint" alleging that Kayla, James, and Rebecca were minor children as defined under Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2002); that a court-martial found Richard guilty of committing an indecent act upon the body of Kayla and of wrongfully communicating a threat to Kayla and James; and that Richard was sentenced to serve 5 years' confinement at a naval brig in California beginning April 2, 2002. The complaint further alleged that pursuant to Neb. Rev. Stat. § 42-364 (Reissue 1998), Richard was unfit by reason of debauchery, lewd and lascivious behavior, and conduct seriously detrimental to the health, morals, or well-being of the children; the children had been abandoned by Richard because he had had no contact with them since the summer of 2000; and Richard had substantially and continuously neglected to care for the children. Kristina requested that Richard's parental rights be terminated.
On April 13, 2004, the court commenced a hearing on Kristina's application to terminate Richard's parental rights. Although not personally present, Richard was represented by counsel. Evidence established that Richard had been served with a copy of the summons, the juvenile complaint, and a notice of his rights under Nebraska law. Kristina testified that following Kristina and Richard's divorce in Tennessee, she and the children moved to Nebraska while Richard remained in Tennessee. According to Kristina, the last time Richard corresponded with the children was "the last two days of August of 2000." The children have not attempted to contact him since that time. Kristina remarried on July 8, 2000, and her present husband wishes to adopt the children.
Kristina testified that Richard's alleged sexual abuse of Kayla was disclosed in September 2000. According to Kristina, the instances of abuse occurred on more than one occasion. Kristina testified that a military tribunal convicted Richard of abuse upon the body of Kayla and of communicating a threat to Kayla and James and sentenced Richard to 5 years' imprisonment.
Kristina testified that there was a child support arrearage of "just under $6,000" and that the "last collection" was January 30, 2004. Kristina testified that Richard had not voluntarily sent any money for the children and that any support received had been taken out of Richard's wages. Kristina testified, "It is my
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