State v. Heather N. (In re Michael N.)

302 Neb. 652

925 N.W.2d 51

IN RE Interest of MICHAEL N., a child under 18 years of age.

State of Nebraska, Appellee and Cross-Appellee,

and

Douglas County Attorney's Office, Appellant and Cross-Appellee,

v.Heather N. and Robert N., Appellees and Cross-Appellants.

No. S-18-335.

Supreme Court of Nebraska.

Filed March 29, 2019.

Donald W. Kleine, Douglas County Attorney, and Mark P. Hanna for appellant.

Karen S. Nelson and Nicholas W. O'Brien, Senior Certified Law Student, of Carlson & Burnett, L.L.P., for appellee Heather N.

Kristina B. Murphree, of Marks, Clare & Richards, L.L.C., for appellee Robert N.

Peder Bartling, Special Prosecutor, of Bartling Law Offices, P.C., L.L.O., for appellee State of Nebraska.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Per Curiam.

This 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 Department).

Multiple appeals have now been filed. The County Attorney's Office appeals the order removing it from the case 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.

BACKGROUND

This 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 numbers followed.

Initial Juvenile Court Proceedings.

On July 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.

Heather's 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.

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.

In a 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 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] unknown."

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 if they cannot personally serve [the parents] and secure service by publication as the law allows" prior to the scheduled adjudication hearing.

In re Interest of Michael N. , 25 Neb. App. 476, 478-79, 908 N.W.2d 400, 402-03 (2018).

Appeal and Cross-Appeal to Court of Appeals.

Heather 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 continued custody when neither had been served with notice of the detention hearing.

The Court of Appeals affirmed the juvenile court's ruling on the motions to dismiss. However, the Court of Appeals reversed the juvenile court's order continuing the Department's custody. It observed that because the juvenile court had not specifically identified the subject of its judicial notice, the Court of Appeals could not determine whether such judicial notice was proper and had no evidence to support the juvenile court's finding that the parents' whereabouts were unknown. Because the parents had not received notice of the detention hearing and because the record did not show that the State made any effort to provide notice of the hearing, the Court of Appeals determined that the parents were denied their due process rights to notice of the hearing. It remanded the cause with instructions to provide the parents with notice and to hold continued detention hearings periodically until service was perfected or actual notice occurred. It mandated that the juvenile court's order of temporary custody should remain in effect for 10 days following the mandate. See id .

Juvenile Court Proceedings on Remand.

On March 14, 2018, the State, represented by the County Attorney's Office, moved to dismiss case No. JV 17-213.

The same day, it filed new petitions under a new case No. JV 18-382. The new petitions were nearly identical to the previous petitions in case No. JV 17-213 and again sought adjudication and termination of parental rights. It also provided the juvenile court with an ex parte order of immediate temporary custody for case No. JV 18-382, which the juvenile court signed but did not file on March 14. On March 15, at a hearing on the State's motion to dismiss case No. JV 17-213, the juvenile court expressed "concern" about the motion. It stated:

I am trying to find a way to say it that does

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