State of Nebraska, on behalf of State of Florida, on behalf of Mia G., A MINOR CHILD, APPELLANT,
Julio G., appellee.
Attorney Fees. Whether attorney fees are
authorized by statute or by the court's recognition of a
uniform course of procedure presents a question of law.
Judgments: Appeal and Error. An appellate
court independently reviews questions of law decided by a
Constitutional Law: Due Process: Right to Counsel:
Paternity. Due process requires that an indigent
defendant in a paternity proceeding be furnished appointed
counsel at public expense.
Paternity: Presumptions. A notarized
acknowledgment of paternity creates a rebuttable presumption
of paternity, but the presumption can be challenged on the
basis of fraud, duress, or material mistake of fact.
from the District Court for Lancaster County: Jodi L. Nelson,
Patrick F. Condon, Lancaster County Attorney, and Anna Marx
M.W. White, of White Law Office, PC, L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Neb. 208]Miller-Lerman, J.
appeal, we are asked to decide whether a court may appoint
counsel at public expense for an indigent individual who has
signed a notarized acknowledgment of paternity pursuant to
Neb. Rev. Stat. § 43-1408.01 (Reissue 2016) but who, in
response to a suit by the State for child support, challenges
the acknowledgment of paternity under Neb. Rev. Stat. §
43-1409 (Reissue 2016) on the basis of fraud, duress, or
material mistake of fact. Because we conclude that such
appointment is required by due process, we reject the
State's claim to the contrary and, accordingly, affirm.
a minor child, was born in 2016, and on March 25, 2016, Julio
G. and Mia's mother signed a notarized acknowledgment of
paternity, attesting that Julio was the father of Mia. Julio
is also named as the father on the minor child's birth
1, 2017, the State, through the county attorney for Lancaster
County, filed a child support action in the district court
for Lancaster County against Julio on behalf of Mia and
attached the signed acknowledgment of paternity to its
complaint. On July 20, at a hearing before the district court
referee, speaking through an interpreter, Julio admitted that
he signed the acknowledgment of paternity in the hospital but
challenged the acknowledgment and requested an attorney.
Julio indicated that he does not read or speak English, that
he did not know what he was signing, and that he was led to
believe the acknowledgment related to medical care. Julio
stated that "the doctors in Cuba had all told me that I
could not have children." Julio stated that he would not
have signed an acknowledgment of paternity without a DNA test
and that prior to mistakenly signing the acknowledgment, he
and Mia's mother had agreed they would complete genetic
testing. Julio stated that "if I'm going to be
ordered by the State to pay [303 Neb. 209] child support for
a child for 18 years, I just want to be sure that they're
mine." The referee found ...