State v. Heather N. (In Re Michael N.)
925 N.W.2d 51
| Neb. | 2019Background
- Michael N., born 2011 with trisomy 8, was found severely malnourished in July 2016; State filed juvenile petitions seeking adjudication and termination of parental rights.
- Multiple petitions were filed and dismissed/refiled across three case numbers after disputed service by publication and related procedural problems.
- The Nebraska Court of Appeals reversed a juvenile-court custody continuation for lack of notice and remanded, directing notice and periodic detention hearings.
- On remand the County Attorney filed new petitions (JV 18-382); parents’ counsel moved to dismiss for lack of service and also filed motions to recuse the juvenile judge.
- At a detention hearing the juvenile judge denied recusal, removed the County Attorney’s Office, appointed a special prosecutor, and later denied the parents’ motions to dismiss and entered a detention order keeping Michael in Department custody.
- Nebraska Supreme Court: dismissed County Attorney’s appeal of its removal for lack of jurisdiction, and affirmed the juvenile court’s denial of dismissal, detention order, and denial of recusal as to the parents’ cross-appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether juvenile court erred in removing County Attorney's Office and appointing a special prosecutor | County Attorney: removal was unauthorized and therefore orders by the special prosecutor are void | State/special prosecutor: removal permitted by court supervision; case proceeded on merits | Court: no appellate jurisdiction over that challenge; removal did not affect a substantial right and title-to-office challenge must be brought in a direct proceeding (appeal dismissed) |
| Whether parents’ motions to dismiss for lack of service should have been granted | Heather/Robert: petitions should be dismissed because they were not properly served and prior dismissals were procedural evasion | State: parents (through counsel) made general appearances and waived service objections; service was later effected | Court: parents waived objection by making general appearances (motions to recuse invoked court’s power); motions to dismiss denied |
| Whether detention order was invalid for lack of admissible evidence of service/notice | Heather/Robert: detention lacked sufficient admissible evidence of service and violated due process | State: parents waived service objections; counsel participated and had notice; detention hearing later held and evidence supported exigency | Court: detention order appealable and affirmed; waiver and counsel notice defeat due-process claim |
| Whether judge should have recused for appearance of partiality | Heather/Robert: judge’s comments and requiring parents to appear to get counsel created appearance of bias; prior comments cautioned the County Attorney | State: judge’s remarks and procedural rulings were within judicial role; no objective appearance of bias | Court: denial of recusal reviewed for abuse of discretion and affirmed; judge’s comments did not cross into advocacy and did not create reasonable appearance of partiality |
Key Cases Cited
- In re Interest of Noah B. et al., 295 Neb. 764 (recognition that State has a substantial right to protect children through juvenile adjudication)
- Atkins v. Department of Motor Vehicles, 192 Neb. 791 (challenge to title to public office must be raised in a direct proceeding)
- Richardson v. Griffiths, 251 Neb. 825 (disqualification of counsel is a peripheral matter that does not affect the subject matter of litigation)
- Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626 (nonfinal orders may be reviewed when they bear on correctness of an appealable final order)
- In re Interest of J.K., 300 Neb. 510 (motion to disqualify judge addressed to judicial discretion; must show bias as a matter of law to reverse)
- Torres v. Morales, 287 Neb. 587 (judge must avoid even appearance of acting as advocate; remonstrations about legal consequences can be appropriate)