In re Interest of Michael N.
302 Neb. 652
| Neb. | 2019Background
- Michael N., born 2011 with medical needs, was found severely malnourished in July 2016; the State filed juvenile petitions seeking adjudication and possible parental-rights termination.
- Multiple petitions were filed, dismissed, and refiled across three case numbers; service by publication and later attempts at personal service were central disputes.
- The juvenile court appointed counsel for the parents, held detention hearings, and temporarily placed Michael in the custody of the Department of Health and Human Services.
- Parents (Heather and Robert) moved to dismiss for improper service and moved to recuse Judge Crnkovich; the juvenile court denied recusal, removed the Douglas County Attorney’s Office as prosecutor, and appointed a special prosecutor.
- The County Attorney’s Office appealed its removal; the parents cross-appealed the denial of their motions to dismiss, the detention order, and the denial of recusal.
- The Nebraska Supreme Court dismissed the County Attorney’s appeal for lack of jurisdiction, found the parents waived service objections by making general appearances, and affirmed the denial of recusal and the detention order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the juvenile court could remove the County Attorney’s Office and appoint a special prosecutor | County Atty: order was unauthorized and deprived State of its prosecutorial authority | Juvenile court: replacement did not change the subject matter; State’s ability to proceed unaffected | No jurisdiction to review the County Attorney’s appeal; order did not affect a substantial right and title-to-office challenge requires a direct proceeding — appeal dismissed |
| Whether parents’ motions to dismiss for lack of service should succeed | Parents: petitions/refilings and improper service violated due process and required dismissal | State: parents and their counsel made appearances; service was later perfected and detention hearing held | Parents waived service objections by making general appearances; motions to dismiss denied |
| Whether the detention order violated due process for lack of notice/service | Parents: detention and continued custody without proper notice violated due process | State: counsel participated in proceedings; service was later shown; juvenile court found personal service | Detention order is appealable; parents waived service objections; detention order affirmed |
| Whether the judge should have recused | Parents: judge’s comments and prior conduct created appearance of partiality | State: comments were legal guidance, not advocacy; recusal motions were discretionary | Denial of recusal reviewable here (bears on detention order) but not meritorious; judge did not abuse discretion |
Key Cases Cited
- In re Interest of Carmelo G., 296 Neb. 805 (sets de novo juvenile review standard)
- In re Interest of J.K., 300 Neb. 510 (motion to disqualify judge addressed to trial court discretion)
- In re Interest of Paxton H., 300 Neb. 446 (appellate jurisdiction requires final order)
- In re Interest of Noah B. et al., 295 Neb. 764 (order dismissing petition without leave may affect State’s substantial right)
- Atkins v. Department of Motor Vehicles, 192 Neb. 791 (challenge to title to office must be in a direct proceeding)
- Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626 (nonfinal orders that bear on correctness of final order may be reviewed)
- Torres v. Morales, 287 Neb. 587 (judge must avoid appearance of acting as advocate)