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In re Kayla F.10/25/2005
.Ed. 2d 556 (1976). The United States had the burden to establish Richard's guilt beyond a reasonable doubt. See 10 U.S.C. § 851(c)(4) (2000). Further, Nebraska has allowed a court-martial conviction to be used to enhance a criminal defendant's sentence. See State v. Hernandez, 259 Neb. 948, 613 N.W.2d 455 (2000). Under these circumstances, the court-martial at issue appears to be more akin to a criminal proceeding. We conclude that the pendency of the appeal prevents the convictions from having collateral estoppel effect for the purpose of the instant termination proceeding.
Because Kristina relied solely upon the non-final convictions, which cannot be accorded any issue preclusive effect, Kristina failed to produce sufficient evidence to establish that 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. Kristina's testimony vaguely referenced a disclosure of "sexual abuse" of Kayla and that the "instances of abuse" occurred on more than one occasion, but she offered no evidence regarding the facts or circumstances of this "sexual abuse." Further, nothing in Kristina's testimony suggests that she had any personal knowledge of the alleged events; rather, her testimony refers to the convictions, which are not final. Kristina had also alleged as grounds for termination that the children had been abandoned by Richard because he has had no contact with them since the summer of 2000 and that Richard had substantially and continuously neglected to care for the children. Abandonment requires a finding that a parent intentionally withheld 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. In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442 (2004). The question of abandonment is largely one of intent, to be determined in each case from all the facts and circumstances. Id. The evidence established that Richard was ordered not to have contact with the children based upon the allegations of and convictions for committing an indecent act against and communicating a threat to certain of his children. Further, part of Richard's sentence included the forfeiture of all pay and allowances.
A parent's interest in the accuracy and justice of the decision to terminate his or her parental rights is a commanding one. In re Interest of Aaron D., 269 Neb. 249, 691 N.W.2d 164 (2005). The grounds for terminating parental rights must be established by clear and convincing evidence, which is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of the fact to be proved. Id. In this case, Kristina did not present the facts or any other evidence upon which Richard's convictions were premised and, for the reasons set forth above, she cannot use the bare existence of the convictions to establish the underlying acts. On the record before us, Kristina has not met her burden of proving by clear and convincing evidence the existence of a condition needed for termination under § 42-364(7).
CONCLUSION
Because Richard has appealed his court-martial convictions, we conclude that such convictions are not final for collateral estoppel purposes. Upon our de novo review of the evidence, we find the same to be insufficient to establish grounds for termination of Richard's parental rights.
Affirmed.
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