In re Interest of Kodi L.
287 Neb. 35
| Neb. | 2013Background
- Kodi L. born Aug 2012; mother Shawntel and Michael executed a notarized acknowledgment of paternity shortly after birth though both knew Michael was not Kodi’s biological father.
- Birth certificate named Michael and Kodi took Michael’s surname; Michael lived with Shawntel and Kodi for months.
- Kodi removed Dec 5, 2012 for mother’s methamphetamine use; State filed juvenile petition; Shawntel admitted allegations and juvenile court adjudicated Kodi as a child under § 43-247(3)(a).
- Guardian ad litem moved to exclude Michael from proceedings, asserting the notarized acknowledgment was fraudulent because both signees knew Michael was not the biological father.
- Hearing evidence: admissions by Shawntel and Michael they knew Michael was not biological father; DHHS caseworker testimony; DNA report showing 0% probability Michael is biological father.
- Juvenile court found the acknowledgment fraudulent, set it aside under Neb. Rev. Stat. § 43-1409, and dismissed/excluded Michael from the juvenile proceedings; Michael appealed.
Issues
| Issue | Plaintiff's Argument (State / GAL) | Defendant's Argument (Michael) | Held |
|---|---|---|---|
| Whether the notarized acknowledgment of paternity could be set aside | Acknowledgment was procured fraudulently and therefore rebutted the statutory presumption | Michael did not contest setting aside in his brief | Court affirmed setting aside as fraudulent (presumption rebutted) |
| Whether dismissal/exclusion of Michael from juvenile proceedings was erroneous | Once acknowledgment set aside and DNA excludes paternity, Michael has no legal interest as father | Michael argued he was an active physical custodian/caregiver and should remain a party | Exclusion affirmed — no legal or biological father status once acknowledgment set aside |
| Whether Michael could participate on non-paternity grounds (custodial/caregiver status) | N/A before trial court (GAL focused on paternity) | Michael argued on appeal he was an active physical custodian/caregiver | Not considered on appeal — argument not raised below, so waived |
Key Cases Cited
- In re Interest of Edward B., 285 Neb. 556 (juvenile cases reviewed de novo)
- Cesar C. v. Alicia L., 281 Neb. 979 (signed, unchallenged acknowledgment establishes legal father)
- J.P. v. Millard Public Schools, 285 Neb. 890 (errors must be specifically assigned and argued on appeal)
- Peterson v. Ohio Casualty Group, 272 Neb. 700 (assigned but unargued errors not addressed on appeal)
- Sherman T. v. Karyn N., 286 Neb. 468 (issues not presented to trial court are not considered on appeal)