Wednesday, October 26, 2005
Neb App reverses parental rights termination where father's Navy court martial conviction for child sexual offense was not yet final, due to pending appeals In re Interest of Kayla F. et al. (Not Designated for Permanent Publication) October 25, 2005. No. A-05-442. 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. Court maritals are akin to criminal convictions and thus must be final before a civil court will apply collateral estoppel with them In the present case, Richard's convictions arise out of a general court-martial. See 10 U.S.C. § 816(1) (2000). A judgment of a court-martial is to be accorded the same finality and conclusiveness as to the issues involved as a judgment of a civilian court. United States v. Price, 258 F.2d 918 (3d. Cir. 1958). As the U.S. Supreme Court recognized, "General and special courts-martial resemble judicial proceedings, nearly always presided over by lawyer judges with lawyer counsel for both the prosecution and the defense. General courts-martial are authorized to award any lawful sentence, including death." Middendorf v. Henry, 425 U.S. 25, 31, 96 S. Ct. 1281, 47 L. 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 nonfinal 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. ... 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.
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