IN RE INTEREST OF MICHAEL N., A CHILD UNDER 18 YEARS OF AGE.
HEATHER N. AND ROBERT N., APPELLEES AND CROSS-APPELLANTS. STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLEE, AND DOUGLAS COUNTY ATTORNEY'S OFFICE, APPELLANT AND CROSS-APPELLEE,
Juvenile Courts: Appeal and Error. An
appellate court reviews juvenile cases de novo on the record
and reaches a conclusion independently of the juvenile
Judges: Recusal: Appeal and Error. A motion
to disqualify a trial judge on account of prejudice is
addressed to the sound discretion of the trial court. An
order overruling such a motion will be affirmed on appeal
unless the record establishes bias or prejudice as a matter
Jurisdiction: Final Orders: Appeal and
Error. For an appellate court to acquire
jurisdiction over an appeal, there must be a final order or
final judgment entered by the court from which the appeal is
Final Orders: Appeal and Error. Among the
three types of final orders which may be reviewed on appeal
is an order that affects a substantial right made during a
Service of Process: Waiver. A general
appearance waives any defects in the process or notice, the
steps preliminary to its issuance, or in the service or
Jurisdiction: Pleadings: Parties. A party
will be deemed to have appeared generally if, by motion or
other form of application to the court, he or she seeks to
bring its powers into action on any matter other than the
question of jurisdiction over that party.
Judges: Recusal: Judgments. Judicial rulings
alone almost never constitute a valid basis for a bias or
partiality motion directed to a trial judge.
Neb. 653] Appeal from the Separate Juvenile Court of Douglas
County: Elizabeth G. Crnkovich, Judge. Affirmed in part, and
in part dismissed.
W. Kleine, Douglas County Attorney, and Mark P. Hanna for
S. Nelson and Nicholas W. O'Brien, Senior Certified Law
Student, of Carlson & Burnett, L.L.P., for appellee
Kristina B. Murphree, of Marks, Clare & Richards, L.L.C.,
for appellee Robert N.
Bartling, Special Prosecutor, of Bartling Law Offices, PC,
L.L.O., for appellee State of Nebraska.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
appeal arises from juvenile proceedings involving Michael N.
and his parents, Heather N. and Robert N. Following an appeal
to the Nebraska Court of Appeals and the State's multiple
dismissals and refilings of the petitions, the parents
separately moved to dismiss based on lack of service and
filed motions for recusal of the trial judge. After the
parents argued unsuccessfully in favor of recusal, the
juvenile court ordered that the Douglas County Attorney's
office (County Attorney's Office) be removed as counsel
for the State and ordered the appointment of a special
prosecutor. Following a hearing, the juvenile court denied
the motions to dismiss and entered a detention order
requiring that Michael remain in the temporary custody of the
Nebraska Department of Health and Human Services (the
appeals have now been filed. The County Attorney's Office
appeals the order removing it from the case [302 Neb. 654]
and appointing a special prosecutor, and on that issue, we
conclude that we lack jurisdiction. As to Heather's and
Robert's cross-appeals of the order denying their motions
to dismiss and the detention order, we have jurisdiction, but
those issues have been waived because the parents made
general appearances in seeking recusal. Finally, we have
jurisdiction to address Heather's and Robert's
challenges to the order overruling their motions to recuse,
but we find no merit to their arguments.
case involves Heather, Robert, and their son Michael, who was
born in December 2011. Michael has trisomy 8, a congenital
condition which requires a special feeding regimen. In July
2016, Michael arrived at an Omaha hospital extremely
malnourished after traveling and living for an unspecified
amount of time in a furnished semitrailer truck cab with his
parents, two siblings, and two large dogs. Similar iterations
of juvenile court proceedings under three separate case
Juvenile Court Proceedings.
25, 2016, the State, represented by the County Attorney's
Office, filed a petition in case No. JV 16-1277 seeking to
adjudicate Michael pursuant to Neb. Rev. Stat. §
43-247(3)(a) (Reissue 2016). The juvenile court, Hon.
Elizabeth G. Crnkovich presiding, issued a protective custody
order temporarily placing Michael in the custody of the
Department. Shortly thereafter, the parents left Nebraska.
Attempts to serve the parents in person were unsuccessful,
and the juvenile court allowed service by publication in
Nebraska and in Georgia where the parents had said they
maintained a residence.
and Robert's court-appointed counsel filed multiple
motions to dismiss based on insufficient process and
insufficient service of process. They argued that the notices
by publication did not include statutorily required language.
The juvenile court overruled the parents' motions to
dismiss. [302 Neb. 655] The County Attorney's Office
later moved for dismissal due to an unspecified mistake in
service by publication. In response, on February 2, 2017, the
juvenile court dismissed the petition without prejudice and
terminated its jurisdiction. The same day, the County
Attorney's Office filed another petition and supplemental
petition on behalf of the State, seeking adjudication of
Michael and termination of Heather's and Michael's
parental rights, docketed as case No. JV 17-213.
subsequent appeal, the Court of Appeals summarized the
juvenile court proceedings in case No. JV 17-213 as follows:
On February 2, 2017, the State filed both a petition and a
supplemental petition alleging that Michael was a child
within the meaning of Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2016) due to the faults or habits of Heather and
Robert. Specifically, the pleadings alleged that Heather and
Robert had failed to provide Michael with proper parental
care, support, and supervision; had failed to provide Michael
with safe, stable, and appropriate housing; and had failed to
place themselves in a position to parent Michael. The
pleadings also alleged that termination of Heather's and
Robert's parental rights was warranted pursuant to Neb.
Rev. Stat. § 43-292(1), (2), and (9) (Reissue 2016) and
that such termination was in Michael's best interests.
Finally, the pleadings alleged that pursuant to Neb. Rev.
Stat. § 43-283.01 (Reissue 2016), reasonable efforts to
reunify Michael with his parents were not required.
Also on February 2, 2017, the State filed ex parte motions
requesting that the juvenile court place Michael in the
immediate custody of the Department and outside his
parents' home. The juvenile court granted the State's
request and placed Michael in the temporary custody of the
Department in a foster home. The court scheduled a detention
hearing to review Michael's custody and placement for
February 7. On February 6, the day prior to the [302 Neb.
656] scheduled detention hearing, the court appointed both
Heather and Robert with counsel.
On February 7, 2017, the detention hearing was held. Neither
Heather nor Robert appeared at the hearing. However, counsel
for both Heather and Robert appeared and made oral motions to
dismiss the petition and supplemental petition because
neither Heather nor Robert had been properly served with
notice of the pleadings or with notice of the detention
hearing. The State conceded that Heather and Robert had not
been provided notice of the pleadings or of the detention
hearing because "the whereabouts of the parents [are]
The juvenile court denied the motions to dismiss the petition
and the supplemental petition. The court stated, "I do
not know of any pre-adjudication motion to dismiss under the
Juvenile Code or under the law." The court also stated,
"Notice and service must occur before any adjudication.
This is the protective custody hearing, which is often ... a
matter of immediacy." The court then, sua sponte, took
judicial notice of a "previous docket, 16-1277 . . . and
the fact that the whereabouts of [the parents] are
unknown." The court indicated that it would rule on the
State's request to continue its ex parte custody order
placing Michael in the custody of the Department and outside
of Heather and Robert's home.
The court asked the State to present evidence concerning
Michael's custody and placement. In response, the State
asked the court to take judicial notice of the affidavit for
removal. The court agreed to take judicial notice of the
affidavit, but that affidavit was not offered into evidence.
No other evidence was offered at the detention hearing. The
juvenile court ordered that the Department be granted
continued custody of Michael with placement to exclude
Heather and Robert's home. The court then scheduled the
adjudication hearing for April 26, 2017. The court ordered
the State "to do their diligent search [302 Neb. 657] if
they cannot personally serve [the parents] and secure service
by publication as the law allows" prior to the scheduled
In re Interest of Michael K, 25 Neb.App. 476,
478-79, 908 N.W.2d 400, 402-03 (2018).
and Cross-Appeal to Court of Appeals.
appealed and Robert cross-appealed case No. JV 17-213 to the
Court of Appeals. They alleged that the juvenile court erred
in overruling their motions to dismiss the petitions based on
improper service and in ruling on the State's motion for