In re Interest of Luz P., 295 Neb. 814

Background

Lucia V. was convicted of child abuse and witness tampering after physically abusing one child (Luz) and obstructing a sexual-assault investigation; she was incarcerated and later deported to Guatemala. Four other children and a fifth born while she was incarcerated were placed in foster care.
The State filed and proved petitions that the five children lacked proper parental care; the county court granted the State’s motions to terminate Lucia’s parental rights on April 4, 2016, finding abandonment, neglect, and aggravated circumstances, and that termination was in the children’s best interests.
The April 4 consolidated termination order’s certificate of service did not indicate whether Lucia or her attorney received notice; other parties were listed as served.
On April 28, 2016, the county court entered an order labeled “nunc pro tunc” that stated it vacated and reissued the April 4 order (alleging e-filing notice failures) in order to give parties additional time to appeal.
Lucia filed notices of appeal on May 23, within 30 days of the April 28 order but more than 30 days after the April 4 order. The Court of Appeals flagged a jurisdictional issue; the Nebraska Supreme Court moved the case to its docket.
The Supreme Court reviewed whether the April 28 order validly extended the time to appeal and whether Lucia’s appeals were timely under Neb. Rev. Stat. § 25-1912(1).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the April 28 order nunc pro tunc validly extended Lucia’s time to appeal the April 4 termination order	Lucia argued the April 28 nunc pro tunc order effectively vacated and reissued the April 4 order, making her notices of appeal timely	The State argued a nunc pro tunc cannot be used to extend appeal time and there was no record evidence that Lucia lacked notice of the April 4 order	Court held the April 28 order was improperly used to extend appeal time; a nunc pro tunc cannot substantively change or extend appeal deadlines absent evidence of lack of notice
Whether the court had evidence showing Lucia (or her counsel) did not receive notice of the April 4 order	Lucia relied on the court’s statement about e-filing notice failures as sufficient	The State pointed to the lack of affidavits or testimony showing nonreceipt of notice	Court held there was no record evidence (affidavits, testimony, or other proof) that Lucia or counsel did not receive notice, so the exception to the rule did not apply
Whether failure to timely file a notice of appeal deprives the appellate court of jurisdiction	Lucia contended the reissued order made appeals timely	The State maintained timely filing is jurisdictional and not cured by the nunc pro tunc here	Court held timely filing is jurisdictional; because notices were not filed within 30 days of the April 4 order, the Supreme Court lacked jurisdiction and must dismiss the appeals
Whether a court may vacate and reinstate an order solely to extend the appeal period	Lucia argued the court intended to correct notice problems and preserve appeal rights	The State argued courts cannot use vacatur/reissuance to circumvent statutory appeal deadlines	Court held courts may not vacate and reinstate orders for the sole purpose of extending appeal time; that would circumvent the Legislature’s time limits

Key Cases Cited

Continental Oil Co. v. Harris, 214 Neb. 422 (1983) (explains proper office and limits of a nunc pro tunc order)
Ferry v. Ferry, 201 Neb. 595 (1978) (nunc pro tunc corrects record; not for substantive change)
Interstate Printing Co. v. Department of Revenue, 236 Neb. 110 (1990) (time for appeal runs from original order unless later order materially amends it)
Nye v. Fire Group Partnership, 263 Neb. 735 (2002) (clerk’s failure to notify can, under evidence, warrant relief to protect appeal rights)
Manske v. Manske, 246 Neb. 314 (1994) (court cannot make factual determinative findings about notice without supporting evidence)
Moackler v. Finley, 207 Neb. 353 (1980) (courts’ power to vacate or modify judgments limited by statutory appeal periods)