dissenting.
I must respectfully dissent from the majority opinion in this case. I do so reluctantly because I recognize that we are dealing with the welfare of a young child. Nevertheless, I believe that courts must be bound by their own rules and cannot choose to ignore those rules even where by doing so the court may be accomplishing some good.
With the exception of limited jurisdiction granted to the Supreme Court by the Constitution of the State of Nebraska, see Neb. Const, art. V, § 2, and the chancery and common-law jurisdiction granted to the district courts by the Nebraska Constitution, see Neb. Const, art. V, § 9, all courts in Nebraska are limited in their jurisdiction to those matters given to them by the Legislature. Without that authority the courts are not free to act. The juvenile court is even more limited in its jurisdiction, relying, as the court did in this case, upon the occurrence of an event or the creation of a situation as described in Neb. Rev. Stat. § 43-247 (Cum. Supp. 1982). As noted in 20 Am. Jur. 2d Courts § 91 at 451 (1965): “A court possesses only such jurisdictional powers as are directly, or indirectly, expressly or by implication, conferred upon it by the constitution or legislation of the sovereignty on behalf of which it functions... .” The Legislature, within constitutional limitations, can fix and circumscribe the jurisdiction of the various courts of this state, and where the Legislature has not granted such authority, the courts are not free to act. See, Bullington v. Angel, 220 N.C. 18, 16 S.E.2d 411 (1941); Coonradt et al. v. Sailors, 186 Tenn. 294, 209 S.W.2d 859 (1948).
In the instant case the juvenile court took jurisdiction over the minor child by reason of § 43-247(3)(a), which required the court to find that the minor child lacked “proper parental care *422by reason of the fault or habits of his . . . parent.” An examination of the testimony offered at the adjudication hearing simply does not support the claim that the minor child lacked proper parental care by reason of the fault or habits of his parent. All that the evidence introduced at the adjudication hearing established was that on one isolated occasion, the father committed an act which is a violation of state law. To be sure, the act was depraved and without excuse. It was clearly an act for which the father should be prosecuted and punished. But the fact that the father has committed a criminal act does not establish that the child is without proper parental care, absent further evidence. There could have been evidence introduced at the adjudication hearing, as there was at the dispositional hearing, to support the claim that because the father had committed this depraved act upon another minor child, there was a likelihood that the father would commit a similar act upon his own minor child. With that evidence there would have been no difficulty in the juvenile court’s acquiring jurisdiction. The difficulty, however, is that the State, for whatever reason, chose not to introduce such evidence and, instead, apparently relied upon the separate juvenile court’s taking judicial notice of a fact which was not a matter of common knowledge. The evidence indicated that the minor child was in no manner affected. While the State would argue that it naturally follows that if a parent commits an act of fellatio on another minor child, he will commit such an act on his own minor child, there simply is no evidence to support that claim. One may just as effectively argue that a parent may treat his own children better than he treats the children of others.
The majority has cited the case of Stewart v. McCauley, 178 Neb. 412, 133 N.W.2d 921 (1965), in support of its position. In that very same case, Justice Carter, writing in dissent, made an interesting observation. He said at 422, 133 N.W.2d at 927, “ ‘Where a right has been created by statute which did not exist at the common law, the legislature may impose restrictions thereon, and the conditions so imposed qualify and are an integral part of the act and must be fully complied with in the manner therein prescribed,’ ” citing Duhrkopf v. Bennett, 108 Neb. 142, 187 N.W. 813 (1922). He further noted at 423-24,133 *423N.W.2dat928:
The court may not exercise its powers over a ward of the court until such time as the ward has been brought within its jurisdiction and its power to adjudicate properly invoked. Where an action grounded on statute is not in compliance with its terms, the power of the court to adjudicate does not exist and the action is for dismissal.
I am inclined to agree with Justice Carter. The State may well have been able to produce the necessary evidence. But when it fails to do so, the court should not fill the holes. If we are indeed to remain a country of laws and not a country of unbridled authority, then the State must be compelled in each instance to meet its burden or the citizen must be free of governmental restraint, no matter how compelling the reasons to do otherwise. The record in this case was simply insufficient at the adjudicative hearing, and the motion to dismiss made at the close of that hearing should have been granted. I would have reversed.