In re Interest of Michael N. ( 2019 )

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www.nebraska.gov/apps-courts-epub/
04/12/2019 08:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
In re I nterest 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. H eather N. and Robert N.,
appellees and cross-appellants.
___ N.W.2d ___
Filed March 29, 2019. No. S-18-335.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Judges: Recusal: Appeal and Error. A motion to disqualify a trial
judge on account of prejudice is addressed to the sound discretion of the
trial court. An order overruling such a motion will be affirmed on appeal
unless the record establishes bias or prejudice as a matter of law.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction over an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken.
4. Final Orders: Appeal and Error. Among the three types of final orders
which may be reviewed on appeal is an order that affects a substantial
right made during a special proceeding.
5. Service of Process: Waiver. A general appearance waives any defects
in the process or notice, the steps preliminary to its issuance, or in the
service or return thereof.
6. Jurisdiction: Pleadings: Parties. A party will be deemed to have
appeared generally if, by motion or other form of application to the
court, he or she seeks to bring its powers into action on any matter other
than the question of jurisdiction over that party.
7. Judges: Recusal: Judgments. Judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion directed to a
­
trial judge.
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IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
Appeal from the Separate Juvenile Court of Douglas
County: Elizabeth G. Crnkovich, Judge. Affirmed in part, and
in part dismissed.
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 involv-
ing 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 serv­
ice and filed motions for recusal of the trial judge. After the
parents argued unsuccessfully in favor of recusal, the juve-
nile 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
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IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
and appointing a special prosecutor, and on that issue, we con-
clude 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 num-
bers 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 cus-
tody 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 mul-
tiple 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.
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IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
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 adjudica-
tion 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 pro-
vide 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 pur-
suant 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), reason-
able 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 place-
ment for February 7. On February 6, the day prior to the
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IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
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 supple-
mental 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 where-
abouts 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 adju-
dication. 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 concern-
ing Michael’s custody and placement. In response, the
State asked the court to take judicial notice of the affida-
vit 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
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IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
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. Ct. 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 per-
fected 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.
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IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
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 pro-
vided 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 not — hon-
estly, I am kind of worried it was not well thought out
in the context of this case. What I intend to do today
is to have the first appearance and protective custody
as it was originally scheduled for and — and may seek
updated briefing on the — you know, the last case and
the one that everybody cites in terms of the State’s pre-
rogative in this child protection matter is a case called in
re: Moore, M-o-o-r-e. . . . I do not know that it’s — that
may be the last thing. I do not know. But it would be
helpful in this circumstance to the Court in discerning
what to do.
. . . I have not quite ordered that of you, of the parties
yet, but I am laying some groundwork while I am think-
ing about it.
The juvenile court heard brief arguments from the parties on
the State’s motions to dismiss, with the parents’ counsel argu-
ing in favor of the motion, but the juvenile court did not order
written briefs on the issue. Moments later, the juvenile court
signed the order to dismiss the matter pending under case No.
JV 17-213 and ordered Heather and Robert to present them-
selves to the juvenile court to request court-appointed counsel
for case No. JV 18-382. It filed the aforementioned ex parte
order of immediate temporary custody and scheduled a deten-
tion hearing for March 21 in case No. JV 18-382.
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IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
Motions to Dismiss and
Motions to Recuse.
On March 20, 2018, Heather’s and Robert’s counsel filed
nearly identical motions to dismiss and/or vacate the peti-
tions and the ex parte order pursuant to Neb. Ct. R. Pldg.
§ 6-1112(b)(4) and (5). Their motions claimed that because
there was no evidence of service, the matter should be vacated
and/or dismissed. They alleged that failure of proper service
had violated their due process rights. They pointed out that
the matters arising out of the State’s petition in case No.
JV 18-382 were substantially like the filings in case No.
JV 17-213, which they claimed had been dismissed in an
effort to circumvent the Court of Appeals’ mandate that the
State provide evidence that service had been perfected or
actual notice had occurred. The parents contended that due
to successive filings of similar petitions, Michael had been in
the Department’s custody since July 2016 without his parents’
being properly served.
Also on March 20, 2018, Heather’s and Robert’s counsel
filed motions to recuse. Both motions alleged that based on
the circumstances of the proceedings, a reasonable and objec-
tive person would find that there is an appearance of partiality
and impropriety by the juvenile court and requested that Judge
Crnkovich recuse herself. The motions specifically cited the
juvenile court’s requirement that the parents present them-
selves to the court for the appointment of counsel, despite the
fact that they had not been served or notified of the proceed-
ings as required by the Court of Appeals.
Detention Hearing on March 21, 2018;
Appointment of Special Prosecutor;
and Denial of Motions to Recuse.
On March 21, 2018, the parents’ counsel appeared at the
detention hearing and sought dismissal of the petitions. Counsel
for Heather and counsel for Robert also argued in support of
the motions to recuse, with counsel for Heather presenting
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IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
evidence on the matter. Heather’s counsel argued that the
juvenile court’s prior remarks to the County Attorney’s Office
cautioning dismissal gave the appearance that the juvenile
court was prosecuting the case. The juvenile court stated on the
record in open court that the motions to recuse were denied.
The family permanency specialist assigned to the case then
testified concerning his efforts to contact the parents. Upon
questioning by the juvenile court, he stated that the County
Attorney’s Office had not asked him for the information he
had provided at the hearing. The County Attorney’s Office did
not cross-examine the witness.
At that point, the juvenile court announced that it was remov-
ing the County Attorney’s Office from the case and appoint-
ing a special prosecutor. It stated that the way the County
Attorney’s Office had addressed the case was “problematic.”
Following the hearing, the juvenile court issued an order
removing the County Attorney’s Office, appointing a special
prosecutor, overruling the motions to recuse, continuing the
motions to dismiss, and continuing the first appearance and
detention hearing on the petition and supplemental petition.
Continued Detention Hearing on April 9, 2018;
Denial of Motions to Dismiss;
and Detention Order.
On April 9, 2018, the juvenile court conducted a hearing on
the motions to dismiss, first appearance, and detention. The
family permanency specialist testified that on April 2, the par-
ents were served in the State of Washington with notice of the
April 9 hearing. The special prosecutor offered documents pur-
porting to show service of summons, which the juvenile court
received. At the conclusion of the hearing, the court announced
that the motions to dismiss were denied.
On April 11, 2018, the juvenile court issued a detention
order that also memorialized its ruling disposing of the parents’
motions to dismiss. It found that the parents had been person-
ally served; that the juvenile court’s jurisdiction was proper;
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IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
that reasonable efforts had been made to prevent the need
for removal; that due to exigent circumstances in evidence,
it would be contrary to Michael’s health, safety, or welfare
to return home; and that it was in his best interests to remain
in the temporary custody of the Department. Accordingly, the
juvenile court ordered that Michael remain in the temporary
custody of the Department and scheduled an adjudication hear-
ing for June 1.
The County Attorney’s Office timely appealed, and the par-
ents cross-appealed.
ASSIGNMENTS OF ERROR
On appeal, the County Attorney’s Office assigns that the
juvenile court erred in ordering the removal of the County
Attorney’s Office and in appointing a special prosecutor.
In their separate cross-appeals, Heather and Robert each
assign, condensed and restated, that the juvenile court erred in
(1) denying their respective motions to dismiss and/or vacate,
despite violations of their due process rights in relation to serv­
ice of process; (2) detaining Michael in continued protective
custody without sufficient admissible evidence that they had
received service of process, in violation of their due process
rights; (3) failing to notify them of their right to counsel; and
(4) overruling their respective motions to recuse.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings. In re Interest of Carmelo G., 296 Neb. 805,
896 N.W.2d 902 (2017).
[2] A motion to disqualify a trial judge on account of preju-
dice is addressed to the sound discretion of the trial court. In
re Interest of J.K., 300 Neb. 510, 915 N.W.2d 91 (2018). An
order overruling such a motion will be affirmed on appeal
unless the record establishes bias or prejudice as a matter of
law. Id.
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IN RE INTEREST OF MICHAEL N.
Cite as 302 Neb. 652
ANALYSIS
Order Appointing Special Prosecutor:
No Jurisdiction.
We begin our analysis with the appeal filed by the County
Attorney’s Office. The County Attorney’s Office argues that the
juvenile court did not have the authority to remove it from the
case and appoint a special prosecutor. At oral argument, coun-
sel for the County Attorney’s Office additionally asserted that
because the special prosecutor was not validly appointed, his
actions on behalf of the State are void. The County Attorney’s
Office asks that we reverse the order appointing the special
prosecutor as well as all orders entered thereafter and remand
the cause with instructions for the case to proceed with the
County Attorney’s Office representing the State.
[3] Before reaching the legal issues presented for review,
however, it is the duty of an appellate court to determine
whether it has jurisdiction to decide them. See In re Interest of
Paxton H., 300 Neb. 446, 915 N.W.2d 45 (2018). For an appel-
late court to acquire jurisdiction over an appeal, there must be
a final order or final judgment entered by the court from which
the appeal is taken. Jennifer T. v. Lindsay P., 298 Neb. 800,
906 N.W.2d 49 (2018).
[4] Among the three types of final orders which may be
reviewed on appeal is an order that affects a substantial right
made during a special proceeding. Neb. Rev. Stat. § 25-1902
(Reissue 2016). Juvenile court proceedings are special pro-
ceedings. In re Interest of Kamille C. & Kamiya C., ante p.
226, 922 N.W.2d 739 (2019). Because this is a juvenile court
proceeding, we would have jurisdiction to review the order
appointing a special prosecutor if it affected a substantial right.
On the other hand, if the order did not affect a substantial right,
it is not a final order. See Mutual of Omaha Bank v. Watson,
301 Neb. 833, 920 N.W.2d 284 (2018).
Numerous factors determine whether an order affects a sub-
stantial right. Broadly, these factors relate to the importance
of the right and the importance of the effect on the right by
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IN RE INTEREST OF MICHAEL N.
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the order at issue. Deines v. Essex Corp., 293 Neb. 577, 879
N.W.2d 30 (2016). It is not enough that the right itself be
substantial, the effect of the order on that right must also be
substantial. Id. Whether the effect of an order is substantial
depends on whether it affects with finality the rights of the
parties in the subject matter. Id. It also depends on whether
the right could otherwise effectively be vindicated. Id. Stated
another way, an order affects a substantial right if it affects the
subject matter of the litigation such as diminishing a claim or
defense that was available to the appellant prior to the order
from which he or she is appealing. Id.
The County Attorney’s Office purports to bring this appeal
on behalf of the State. In this regard, the County Attorney’s
Office argues that the order removing the County Attorney’s
Office and appointing the special prosecutor affected a sub-
stantial right of the State. The County Attorney’s Office claims
that the State’s substantial right to protect the welfare of chil-
dren through juvenile adjudications is affected by the order
removing the County Attorney’s Office and appointing the
special prosecutor.
In support of its argument, the County Attorney’s Office
directs us to In re Interest of Noah B. et al., 295 Neb. 764, 891
N.W.2d 109 (2017). The County Attorney’s Office correctly
points out that in that case, we recognized that the State has
a right to protect the welfare of its resident children and that
this right is especially important in juvenile adjudications. The
County Attorney’s Office asserts that the order removing it and
appointing the special prosecutor affects the State’s substantial
right to protect children through pursuing juvenile adjudica-
tions in the same way as the order we found appealable in In
re Interest of Noah B. et al. As we will explain, however, the
order we found appealable in In re Interest of Noah B. et al. is
materially different from the order at issue here.
In In re Interest of Noah B. et al., we held that an order dis-
missing an adjudication petition brought by the State without
leave to amend affected the State’s substantial right to protect
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children through juvenile adjudications. We held that this right
was affected by the order dismissing the adjudication petition
because it “foreclose[ed] the State from pursuing adjudication
and disposition on grounds of sexual abuse” and “prevent[ed]
the State from seeking to protect the children from such
abuse.” Id. at 775, 891 N.W.2d at 119-20. In other words,
we found that the order dismissing the adjudication petition
affected the subject matter of the adjudication proceeding
by completely precluding the State from pursuing its claim
for adjudication.
The same cannot be said of the order removing the County
Attorney’s Office and appointing the special prosecutor in
this case. That order did not impact the subject matter of the
adjudication proceeding in any way. Nor did it prevent the
State from continuing to pursue the matter. The order merely
removed one lawyer and appointed another.
In another context, we have held that an order disqualify-
ing an attorney from representing a client does not affect a
substantial right of the client. See Richardson v. Griffiths, 251
Neb. 825, 560 N.W.2d 430 (1997), overruled on other grounds,
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
As we explained, an order disqualifying counsel affects a
“peripheral matter” rather than the subject matter of the litiga-
tion, because regardless of who represents the client, “the same
claims and defenses persist.” Id. at 830, 560 N.W.2d at 434.
The same is true here. Because the order effectively replacing
the County Attorney’s Office with the special prosecutor did
not affect the subject matter of the litigation, we cannot say it
affected a substantial right of the State.
In addition to all we have said so far, there is another rea-
son that precludes us from reviewing the order removing the
County Attorney’s Office and appointing a special prosecutor.
The County Attorney’s Office contends that the juvenile court
had no authority to remove it and appoint a special prosecutor.
For this reason, the County Attorney’s Office takes the position
that the County Attorney’s Office is entitled to represent the
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State in this matter and that the special prosecutor lacks the
authority to do so. The County Attorney’s Office is effectively
raising a question of who has authority to carry out the duties
of a public office. We have held for many years that a question
of title to an office can be challenged only in a direct proceed-
ing brought for that purpose.
By way of example, in Atkins v. Department of Motor
Vehicles, 192 Neb. 791, 224 N.W.2d 535 (1974), the Department
of Motor Vehicles commenced license revocation proceedings
against an individual. The individual sought to challenge the
revocation on the ground that the hearing examiner was not
effectively appointed. This court refused to consider the con-
tention. We pointed out that while a hearing examiner must be
effectively appointed, the lawfulness of the appointment could
not be considered in the revocation proceeding. Rather, the
“question of title to an office” could “only be challenged in
a direct proceeding brought for that purpose.” Id. at 793, 224
N.W.2d at 536. Many other cases hold the same. See, e.g., SID
No. 57 v. City of Elkhorn, 248 Neb. 486, 536 N.W.2d 56 (1995),
disapproved on other grounds, Adam v. City of Hastings, 267
Neb. 641, 676 N.W.2d 710 (2004); State v. Birdwell, 188 Neb.
116, 195 N.W.2d 502 (1972); State ex rel. Weiner v. Hans, 174
Neb. 612, 119 N.W.2d 72 (1963); Haskell v. Dutton, 65 Neb.
274, 91 N.W. 395 (1902).
The contention by the County Attorney’s Office that the spe-
cial prosecutor was unlawfully appointed to represent the State
in this case raises the “question of title to an office.” Atkins v.
Department of Motor Vehicles, 192 Neb. at 793, 224 N.W.2d at
536. Such a claim can be considered only in a “direct proceed-
ing brought for that purpose.” Id. This is a juvenile court pro-
ceeding, not a proceeding brought for the purpose of challeng-
ing the right to represent the State in this matter. We therefore
cannot consider that challenge in this case.
Because we find that we do not have jurisdiction over the
appeal brought by the County Attorney’s Office, we dismiss
its appeal.
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IN RE INTEREST OF MICHAEL N.
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Detention Order and Denial of Parents’
Motions to Dismiss and Motions
to Recuse: Jurisdiction.
We move now to the parents’ challenges to the orders that
overruled their motions to dismiss the petition and supplemen-
tal petition and ordered Michael’s continued detention. Again,
we must first address jurisdiction and determine whether there
is a final order or final judgment entered by the court from
which the appeal is taken. See In re Interest of Paxton H., 300
Neb. 446, 915 N.W.2d 45 (2018).
In the juvenile context, we have held that if a party’s sub-
stantial rights are not determined by the court’s order over-
ruling a motion to dismiss juvenile proceedings and the cause
is retained for further action, the order is not final. See In re
Interest of Clifford M. et al., 258 Neb. 800, 606 N.W.2d 743
(2000). We believe the denial of the motion to dismiss is such
an order. The order overruling the parents’ motions to dismiss
merely kept the proceedings on the path toward eventual reso-
lution on the merits and did not affect the parents’ rights with
finality. For this reason, the denial of the motion to dismiss was
not, standing alone, immediately appealable.
But while the denial of the motion to dismiss, standing
alone, was not immediately appealable, the detention order
was. This court has held that a detention order entered after
a hearing which continued to keep a juvenile’s custody from
his or her parent pending an adjudication hearing to determine
whether the juvenile is neglected, pursuant to § 43-247(3)(a), is
final and thus appealable. See In re Interest of Ty M. & Devon
M., 265 Neb. 150, 655 N.W.2d 672 (2003). See, also, In re
Interest of Joshua M. et al., 251 Neb. 614, 558 N.W.2d 548
(1997); In re Interest of R.R., 239 Neb. 250, 475 N.W.2d 518
(1991); In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780
(1991), disapproved on other grounds, O’Connor v. Kaufman,
255 Neb. 120, 582 N.W.2d 350 (1998). Consequently, we have
jurisdiction to review the juvenile court’s detention order and
the hearing that preceded it.
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Our conclusion that we have jurisdiction to review the
detention order returns us to the question of whether we may
review the denial of the motion to dismiss. While the denial of
the motion to dismiss would not have been reviewable if that
were the only order on which review was sought, we find that
we may review it under these circumstances. We have held
that we may review otherwise nonfinal orders that “bear on
the correctness” of a reviewable final order or judgment. See,
e.g., Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 637,
849 N.W.2d 523, 532 (2014); State v. Loyd, 269 Neb. 762,
696 N.W.2d 860 (2005). The denial of Heather’s and Robert’s
motions to dismiss, which sought dismissal on the grounds that
they were not properly served with process, bears on the cor-
rectness of the detention order. If Heather and Robert were not
properly served or did not waive service and the action was
subject to dismissal on those grounds, we would be required
to reverse, vacate, or modify the detention order. Accordingly,
we also have jurisdiction to review the denial of the motion to
dismiss. See Breci v. St. Paul Mercury Ins. Co., supra.
Denial of Parents’ Motions to Dismiss
and Detention Order: Merits.
Having determined that we have jurisdiction to do so, we
proceed to review the parents’ challenges of the order overrul-
ing the motions to dismiss and the detention order, which are
mainly based on the grounds that Heather and Robert were not
properly served with process or did not receive actual notice of
hearing. We find no merit to these challenges.
[5,6] Heather and Robert have waived the arguments that
they were not properly served or provided with notice. Under
Neb. Rev. Stat. § 25-516.01(1) (Reissue 2016), the voluntary
appearance of a party is the equivalent of service of process.
Participation in the proceedings on any issue other than the
defenses of lack of jurisdiction over the person, insufficiency
of process, or insufficiency of services of process, waives all
such issues except as to the objection that the party is not
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amenable to process issued by a court of this state. See Burns
v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016). See, also,
Applied Underwriters v. Oceanside Laundry, 300 Neb. 333,
912 N.W.2d 912 (2018); Friedman v. Friedman, 290 Neb. 973,
863 N.W.2d 153 (2015). Thus, a general appearance waives
any defects in the process or notice, the steps preliminary to its
issuance, or in the service or return thereof. Id. A party will be
deemed to have appeared generally if, by motion or other form
of application to the court, he or she seeks to bring its powers
into action on any matter other than the question of jurisdiction
over that party. Id.
Here, the parents, through counsel, asked the juvenile court
to act on a matter apart from its jurisdiction over them. On the
same day the parents raised the issue of service in their motions
to dismiss, they filed motions to recuse in which they alleged
an appearance of partiality by Judge Crnkovich. At a hear-
ing the next day, counsel for Heather and counsel for Robert
appeared and sought dismissal of the petitions, but they also
argued in support of the motions to recuse. Heather’s counsel
presented evidence pertaining to recusal, arguing in part that
Judge Crnkovich’s prior remarks to the County Attorney’s
Office had given the appearance that Judge Crnkovich was
prosecuting the case. The parents thus invited the juvenile
court to exercise its discretion in ruling on their motions to
recuse. See Thompson v. Millard Pub. Sch. Dist. No. 17, ante
p. 70, 921 N.W.2d 589 (2019) (recusal motion addressed to
discretion of trial judge to whom motion is directed). In diverg-
ing from the issue of service of process with their motions to
recuse, the parents made general appearances and waived the
issue of whether they had been properly served. See Hunt v.
Trackwell, 262 Neb. 688, 635 N.W.2d 106 (2001) (motion to
recuse, among other filings, invoked court’s power and con-
stituted general appearance). Therefore, the arguments in their
motions to dismiss necessarily fail.
In addition to asserting that the juvenile court ought to
have dismissed the petitions due to lack of service, the parents
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contend that dismissal of the entire matter was warranted,
because the State did not comply with the Court of Appeals’
direction to hold a detention hearing in case No. JV 17-213
within 10 days. While we recognize that a detention hear-
ing was not held on that docket within the time prescribed
by the Court of Appeals, a detention hearing for Michael did
ultimately occur. And more important, Heather and Robert
provide no authority for the position that they were entitled
to dismissal of the entire case due to the timing of this deten-
tion hearing. Indeed, we have repeatedly stated that the goal
of juvenile proceedings is to protect children and promote
their best interests. See, e.g., In re Interest of Octavio B. et
al., 290 Neb. 589, 861 N.W.2d 415 (2015); In re Interest
of Samantha C., 287 Neb. 644, 843 N.W.2d 665 (2014). It
would be inconsistent with this objective if the failure of the
State to meet a procedural deadline resulted in a child who
is alleged to come within the meaning of § 43-247(a), due to
the faults and habits of his parents, being summarily returned
to those parents.
Heather and Robert also propose the return of Michael as the
remedy for the claimed continual violation of their due process
rights occasioned by the successive dismissals and refilings of
the juvenile petitions. We acknowledge that repeated dismiss-
als and refilings have the potential to violate due process. But
a detention hearing was held in this case after Heather and
Robert waived service of process, and they do not argue that
the juvenile court ruled incorrectly on the merits in ordering
detention. Any complaints about the delayed detention hear-
ing were resolved by the detention order, which, as we explain
below, we affirm.
The parents’ opposition to the detention order, like their
challenges to the order overruling their motions to dismiss,
is defeated by their waiver of service of process. Heather and
Robert assert that the juvenile court erred in entering a deten-
tion order in violation of their due process rights because there
was not sufficient admissible evidence that they had received
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service of process or notice of the detention hearing. But as
explained above, they waived service of process prior to the
detention hearing. Further, Heather and Robert cannot claim
that they were unaware of the detention hearing. Their counsel
participated in scheduling it and represented the parents when
it occurred, and the general rule is that notice to, or knowl-
edge of facts by, an attorney is notice to, or knowledge of,
the client. See Unland v. City of Lincoln, 247 Neb. 837, 530
N.W.2d 624 (1995). We therefore reject the parents’ asser-
tions that their due process rights were violated by the deten-
tion proceedings.
Advisement of Right to Counsel.
Heather and Robert assign and argue that the juvenile
court erred in failing to notify them of their right to counsel
during the proceedings that resulted in the reviewable deten-
tion order. They point out that Neb. Rev. Stat. § 43-279.01
(Reissue 2016) confers the right of a parent to have counsel
appointed if the parent is unable to afford to hire a lawyer.
Under § 43-279.01, when a petition seeks adjudication or ter-
mination, the juvenile court must inform a parent of his or her
right to counsel, when “the parent . . . appears with or without
counsel.” But for § 43-279.01 to apply, the parent must actu-
ally be present in court; the appearance by counsel alone does
not trigger the statute. See In re Interest of Maxwell T., 15
Neb. Ct. App. 47, 721 N.W.2d 676 (2006). In this case, Heather
and Robert were not present in court and therefore were not
entitled to be advised of their right to counsel, and the juve-
nile court was not incorrect in requiring them to appear to
obtain counsel. Thus, the parents’ assignments of error on this
issue lack merit.
Order Overruling Motions to Recuse:
Jurisdiction and Merits.
Finally, Heather and Robert contend that the juvenile court
erred in overruling their motions to recuse. Once again, we
must first address whether we have jurisdiction to consider the
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order appealed from. See In re Interest of Paxton H., 300 Neb.
446, 915 N.W.2d 45 (2018).
For the same reason we could review the denial of the
motions to dismiss, we conclude that the circumstances of this
case allow us to review the appeals from the order overruling
the motions to recuse. We have held that a denial of a motion
to recuse is generally not final and appealable in its own right.
See State of Florida v. Countrywide Truck Ins. Agency, 270
Neb. 454, 703 N.W.2d 905 (2005); State v. Sklenar, 269 Neb.
98, 690 N.W.2d 631 (2005). However, in this instance, the
juvenile court’s rulings on the motions to recuse “bear on the
correctness” of the final, appealable detention order. See, e.g.,
Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 637, 849
N.W.2d 523, 532 (2014); State v. Loyd, 269 Neb. 762, 696
N.W.2d 860 (2005). If the juvenile court incorrectly denied the
motions to recuse, it would be disqualified from deciding the
subsequent detention order. See Tierney v. Four H Land Co.,
281 Neb. 658, 798 N.W.2d 586 (2011). Consequently, we also
have jurisdiction to review the denial of the motions to recuse.
See Breci v. St. Paul Mercury Ins. Co., supra.
As for the merits, the parents argue that both the juvenile
court’s decision to require their appearance before the appoint-
ment of counsel and its remarks on the State’s dismissal of its
own petitions create an objective appearance of impropriety,
requiring recusal. We disagree.
Under Neb. Rev. Code of Judicial Conduct § 5-302.11, a
judge is disqualified whenever the judge’s impartiality might
reasonably be questioned. Under the code, such instances in
which the judge’s impartiality might reasonably be questioned
specifically include where “‘[t]he judge has a personal bias or
prejudice concerning a party or a party’s lawyer . . . .’” Tierney
v. Four H Land Co., 281 Neb. at 664, 798 N.W.2d at 591,
quoting § 5-302.11(A)(1). Impartiality requires, among other
things, that a judge must not appear to act in the dual capacity
of judge and advocate. See State v. Harris, 274 Neb. 40, 735
N.W.2d 774 (2007). A judge’s official conduct must be free
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from even the appearance of impropriety, and a judge’s undue
interference in a trial may tend to prevent the proper presenta-
tion of the cause of action. See Torres v. Morales, 287 Neb.
587, 843 N.W.2d 805 (2014). The inquiry is whether a reason-
able person who knew the circumstances of the case would
question the judge’s impartiality under an objective standard
of reasonableness, even though no actual bias or prejudice was
shown. See In re Interest of J.K., 300 Neb. 510, 915 N.W.2d
91 (2018). A party seeking to disqualify a judge on the basis
of bias or prejudice bears the heavy burden of overcoming the
presumption of judicial impartiality. Id.
[7] We first address the parents’ arguments that recusal was
warranted by the juvenile court’s requirement that they appear
for the appointment of counsel following “consistent and
egregious due process violations” related to lack of service
of process. Brief for appellee Heather on cross-appeal at 32.
Accord brief for appellee Robert on cross-appeal at 25. We
have determined that by their motions to recuse, the parents
made general appearances and waived their objections to serv­
ice of process, which is the basis of their due process argu-
ments. And Heather and Robert do not explain how requiring
them to present themselves for the appointment of counsel
shows bias or partiality by the juvenile court. Instead, their
arguments suggest that the ruling was merely wrong. But judi-
cial rulings alone almost never constitute a valid basis for a
bias or partiality motion directed to a trial judge. In re Interest
of J.K., supra. We conclude that the juvenile court did not
abuse its discretion in declining to recuse itself on the basis
of this ruling.
Likewise, we see no reasonable basis to question Judge
Crnkovich’s impartiality due to her comments on the State’s
dismissal of its own petitions. Heather and Robert argue that
these comments cautioned the State about aspects of the case
before ruling on the State’s motion to dismiss and pointed out
precedent supporting the motion to dismiss. All this, they con-
tend, communicated the judge’s view of how the State should
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proceed and crossed the line from neutral and unbiased deci-
sionmaker to advocate. We find that the remarks cited by the
parents are not sufficiently clear to cross this line or otherwise
give the appearance of impropriety. At most, the judge was
stating the authority relevant to the issue at hand and invit-
ing the State to consider the consequences of dismissal, not
directing the State’s decision. See Torres v. Morales, 287 Neb.
at 592, 843 N.W.2d at 810 (“there are times when trial judges
must inform a party of the legal consequences of an order with-
out directing the party’s decision”). And the judge’s comments
did not unduly interfere with the hearing. The parties were
given the opportunity to argue their positions on the motions to
dismiss, with the parents’ counsel arguing in favor, before the
juvenile court announced its ruling.
The parents also suggest that the juvenile court judge called
her impartiality into question because the ex parte order that
she filed after the hearing on March 15, 2018, was signed by
her prior to the hearing. They seem to contend that the judge’s
ex parte ruling reflects that she never intended to conduct a
detention hearing as required by the Court of Appeals. We sim-
ply do not understand how signing the ex parte order demon-
strates an intention not to conduct a detention hearing. In fact,
the judge did hold a detention hearing, after which she entered
a detention order, which is one of the issues appealed. We per-
ceive no appearance of impropriety.
For these reasons, we conclude that the juvenile court judge
did not abuse her discretion in refusing to recuse herself.
CONCLUSION
As noted above, we find that we must dismiss the appeal of
the County Attorney’s Office, because we lack jurisdiction to
consider the issue it raises, and we otherwise affirm.
This appeal exposes a troubling process begun in the Douglas
County Separate Juvenile Court in 2016 which remains unre-
solved to this day. Given the posture of the issues we address,
this court’s authority is limited in this appeal. We alert the
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participants that the duration and the procedure utilized have
not gone unnoticed. The focus of the case needs to return to
the best interests of Michael.
A ffirmed in part, and in part dismissed.
Papik, J., concurring.
I concur fully in this court’s decision, including the determi-
nation that we do not have jurisdiction to decide the challenge
by the County Attorney’s Office to the juvenile court’s order
removing it from the case and appointing a special prosecu-
tor. I write separately to emphasize my belief that our opinion
should not be understood as concluding that issues related to
such a removal could never be reached on appeal. In this case,
it was the County Attorney’s Office that challenged its removal
and the court’s appointment of the special prosecutor. But I can
envision a scenario in which an opposing party could raise the
argument that a court’s removal of one prosecutor and appoint-
ment of another required the court’s recusal.
Nebraska law recognizes some circumstances under which
a special prosecutor can be appointed. Under Neb. Rev. Stat.
§ 23-1205 (Reissue 2016), a court can appoint a special pros-
ecutor under the limited circumstances of the “absence, sick-
ness, disability, or conflict of interest of the county attorney
and his or her deputies.” We have held, however, that a judge’s
personal dissatisfaction with the county attorney’s performance
does not allow for the appointment of a special prosecutor
under § 23-1205. See In re Complaint Against White, 264 Neb.
740, 651 N.W.2d 551 (2002), citing Stewart v. McCauley, 178
Neb. 412, 133 N.W.2d 921 (1965).
Indeed, it does not require much imagination to conceive of
potential problems that could arise if courts had the authority
to remove and replace lawyers simply because the judge did
not approve of the lawyers’ work. One such problem is the
power this would give a judge to dictate how a case is liti-
gated. A judge with the power to remove a prosecutor based
on dissatisfaction with the way the case is being prosecuted
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is a judge with the power to, in a sense, decide how the case
will be prosecuted. As courts have observed in other separa-
tion of powers contexts, “the power to remove is the power
to control.” See In re Aiken County, 645 F.3d 428, 442 (D.C.
Cir. 2011) (Kavanaugh, Circuit Judge, concurring). See, also,
Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181, 92 L. Ed.
2d 583 (1986); Silver v. U.S. Postal Service, 951 F.2d 1033
(9th Cir. 1991); U.S. v. Chambless, 680 F. Supp. 793 (E.D.
La. 1988).
If a judge were to remove a prosecutor solely because of
dissatisfaction with the prosecutor’s work, an opposing party
may be able to raise serious questions about the judge’s impar-
tiality. As we have often said, “‘[a] judge must be careful not
to appear to act in the dual capacity of judge and advocate.’”
Torres v. Morales, 287 Neb. 587, 592, 843 N.W.2d 805, 810
(2014), quoting Jim’s, Inc. v. Willman, 247 Neb. 430, 527
N.W.2d 626 (1995), disapproved on other grounds, Gibilisco v.
Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).
But while there may be a case in which a party could argue
that a court’s removal of a prosecutor and appointment of a
replacement crossed the line into advocacy and required the
court’s recusal, Heather and Robert did not do so here. While
they filed motions to recuse, which are addressed in this court’s
opinion, the motions were filed before the appointment of the
special prosecutor and no argument was made to the juvenile
court that its removal of the County Attorney’s Office and
appointment of a special prosecutor required recusal. The issue
is thus not before us in this case. See Weber v. Gas ’N Shop,
278 Neb. 49, 54, 767 N.W.2d 746, 750 (2009) (“[a]n appellate
court will not consider an issue on appeal that was not pre-
sented to or passed upon by the trial court”).
Stacy and Freudenberg, JJ., join in this concurrence.