East v. State

• Decision Date: 06 September 2013
• Docket Number: No. S–12–812.,S–12–812.
• Citation: Michael E. v. State, 286 Neb. 532, 839 N.W.2d 542 (Neb. 2013)
• Parties: Michael E., individually and as Guardian and next friend on behalf of his minor child, Avalyn J., appellant, v. State of Nebraska et al., appellees.
• Court: Nebraska Supreme Court

286 Neb. 532

839 N.W.2d 542

Michael E., individually and as Guardian and next friend on behalf of his minor child, Avalyn J., appellant,

v.State of Nebraska et al., appellees.

No. S–12–812.

Supreme Court of Nebraska.

Filed September 6, 2013.

Appeal from the District Court for Douglas County: Joseph S. Troia, Judge.Affirmed in part, and in part reversed.

Amy Sherman, of Sherman & Gilner, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and John M. Baker, Special Assistant Attorney General, for appellees.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1.Motions to Dismiss: Immunity: Appeal and Error.An appellate court reviews de novo whether a party is entitled to dismissal of a claim based on federal or state immunity, drawing all reasonable inferences for the nonmoving party.

2.Actions: Immunity.A suit against a state agency is a suit against the State and is subject to sovereign immunity.

3.Actions: Public Officers and Employees: Immunity: Appeal and Error.In reviewing actions against state officials, a court must determine whether an action against individual officials sued in their official capacities is in reality an action against the state and therefore barred by sovereign immunity.

4.Actions: Parties: Public Officers and Employees: Immunity: Waiver: Damages.In an action for the recovery of money, the State is the real party in interest.And sovereign immunity–if not waived–bars a claim for money even if the plaintiff has named individual state officials as nominal defendants.

5.Actions: Public Officers and Employees: Immunity.To the extent a plaintiff seeks to compel a state official to take actions that require the official to expend public funds, state sovereign immunity bars the suit.

6.Constitutional Law: Immunity: Public Officers and Employees: Declaratory Judgments: Injunction.In an action brought under 42 U.S.C. § 1983(2006),11th Amendment immunity does not bar an action against a state or state officials for prospective declaratory or injunctive relief.

7.Public Officers and Employees: Immunity.State sovereign immunity does not bar an action against state officials to restrain them from performing an affirmative act or to compel them to perform an act they are legally required to do unless the affirmative act would require the officials to expend public funds.

8.Public Officers and Employees: Immunity: Liability.If a plaintiff has sued a state official in the official's individual capacity, a court must determine whether qualified immunity shields the state official from civil damages.

9.Public Officers and Employees: Immunity: Liability.Qualified immunity shields state officials in their individual capacities from civil damages if their conduct did not violate a clearly established statutory or constitutional right of which a reasonable person would have known.

10.Parental Rights.A parent's right to maintain custody of his or her child is a natural right, subject only to the paramount interest which the public has in protecting the rights of the child.

11.Constitutional Law: Parental Rights: Due Process.The fundamental liberty interest of natural parents in the care, custody, and management of their child is afforded due process protection.

12.Parental Rights.Even a parent's natural right to the care and custody of a child is limited by the State's power to protect the health and safety of its resident children.

13.Juvenile Courts: Jurisdiction: Child Custody: Parental Rights.The State's protective umbrella begins when a juvenile court acquires jurisdiction at the adjudication phase based on the child's present living conditions.The custodial rights of parents normally arise at the dispositional phase.

14.Parental Rights: Minors: Due Process: Notice.Procedural due process requires notice to the person whose rights are affected by an adjudication proceeding and a reasonable opportunity to refute or defend against the allegations.

15.Child Custody: Parental Rights: Marriage: Adoption: Proof.When a child is born or adopted during a marriage, a court may not properly deprive a biological or adoptive parent of the custody of the minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship or has forfeited that right.

16.Parent and Child.Parental rights do not spring full blown from the biological connection between parent and child.They require relationships more enduring.

17.Parent and Child: Paternity: Proof.If an unmarried father has custody and an established relationship with his child, a state may not deprive that father of custody without showing that he is an unfit parent.

18.Constitutional Law: Paternity: Adoption: Proof.When an unmarried father has established familial ties with his biological child and has provided support, his relationship acquires substantial constitutional protection.Thus, the State may not statutorily eliminate the need for his consent to an adoption.

19.Paternity: Parental Rights: Minors.Adjudicated fathers, as a class, can have parental rights at stake in juvenile proceedings.

20.Due Process: Minors: Notice.In a juvenile proceeding alleging abuse, neglect, or dependency, due process requires the State to provide notice and an opportunity to be heard to a child's known adjudicated or biological father who is providing substantial and regular financial support for his child.

21.Constitutional Law: Parent and Child: Child Support.The fact that an unmarried, biological father has paid his child support obligations is insufficient to create a fundamental liberty interest in a familial relationship that is entitled to heightened constitutional protection.

22.Juvenile Courts: Parent and Child: Child Custody.Unless a known biological father appears and shows a juvenile court that he has shouldered the responsibilities of parenting, in addition to providing financial support, the court is not required to determine that he is an unfit parent before it can place the child with a third party.Nonetheless, consistent with a juvenile court's broad discretion to determine the placement of an adjudicated child that will serve the child's best interests, the court may consider placement with an unmarried, biological father if removal from the child's home is necessary.

23.Paternity: Notice.If the State shows that an unmarried, biological father's whereabouts are unknown and that he has not supported his child, then he is not a parent entitled to notice and an opportunity to be heard in a juvenile proceeding involving his child born out of wedlock.

24.Paternity: Notice.Neb.Rev.Stat. §§ 43–263 and 43–265(Reissue 2008) cannot be constitutionally applied to avoid notifying a known adjudicated or biological father, who has provided financial support to his child, of abuse, neglect, or dependency proceedings involving his child.In that circumstance, the State must comply with the notification procedures that are statutorily required for other noncustodial parents—before the dispositional phase.

25.Public Officers and Employees: Immunity.Whether a state official should prevail in a qualified immunity defensedepends upon the objective reasonableness of his or her conduct as measured by reference to clearly established law.

26.Constitutional Law: Courts: Statutes.Generally, a right cannot be clearly established when the conduct complained of was authorized by statute and no court had decided the issue when the conduct occurred.

27.Injunction: Damages.An injunction is an extraordinary remedy that a court should ordinarily not grant except in a clear case where there is actual and substantial injury.

28.Injunction: Damages.A court should not grant an injunction unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice.

Connolly, J.

SUMMARY

Michael E., individually and on behalf of his daughter, Avalyn J., brought this civil rights action under 42 U.S.C. § 1983(2006).The defendants are the State, the Department of Health and Human Services(the Department), and six of the Department's employees.He alleged that because the defendants failed to notify him of juvenile proceedings regarding Avalyn, they interfered with his and Avalyn's constitutional rights to familial integrity, substantive due process, and equal protection.Michael sued the employees in their official and individual capacities.In addition, he claimed that Neb.Rev.Stat. §§ 43–263and43–265(Reissue 2008) were unconstitutional.

The district court determined that §§ 43–263and43–265 were unconstitutional, facially and as applied to Michael.But it concluded that sovereign immunity barred Michael's action against the State, the Department, and the employees in their official capacities.It further determined that the employees, in their individual capacities, were entitled to qualified immunity because they were following unconstitutional statutes, which had not previously been declared unconstitutional.The court dismissed Michael's request for injunctive relief to restrain the State from unlawfully applying the notification statutes.

We will explain our holding with specificity in the following pages, but briefly stated, it is this:

(500) To the extent that Michael sought monetary damages, the court correctly determined that sovereign immunity barred Michael's claims against the State, the Department, and the Department's employees in their official capacities.

?In a juvenile proceeding alleging abuse, neglect, or dependency, due process requires the State to provide notice and an opportunity to be heard to a child's known, financially supportive adjudicated or biological father.

?The court correctly determined that qualified immunity shielded the Department's employees from liability in their individual capacities because they did not violate a...