State v. Rufus M. (In re Isaiah S.)

• Decision Date: 20 November 2018
• Docket Number: No. A-18-227,No. A-18-228.,A-18-227,A-18-228.
• Parties: IN RE INTEREST OF ISAIAH S. AND GRACELYNN S., CHILDREN UNDER 18 YEARS OF AGE. STATE OF NEBRASKA, APPELLEE, v. RUFUS M., APPELLANT.
• Court: Nebraska Court of Appeals

IN RE INTEREST OF ISAIAH S. AND GRACELYNN S.,CHILDREN UNDER 18 YEARS OF AGE.STATE OF NEBRASKA, APPELLEE, v. RUFUS M., APPELLANT.

No. A-18-227

No. A-18-228.

NEBRASKA COURT OF APPEALS

November 20, 2018

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeals from the County Court for Dodge County: KENNETH J. VAMPOLA, Judge. Affirmed.

Richard Register, of Register Law Office, for appellant.

Brianna L. McLarty, Deputy Dodge County Attorney, for appellee.

PIRTLE, BISHOP, and ARTERBURN, Judges.

BISHOP, Judge.

I. INTRODUCTION

Rufus M. appeals from separate orders of the county court for Dodge County, sitting as a juvenile court, terminating his parental rights to his son, Isaiah S. (case No. A-18-227) and his daughter, Gracelynn S. (case No. A-18-228). The underlying cases were heard jointly by the juvenile court, and the appeals have been consolidated for disposition. We affirm.

II. BACKGROUND

Rufus and Tricha S. are the parents of Isaiah (born in 2009) and Gracelynn (born in 2012). Rufus and Tricha were divorced in 2013, and Tricha was awarded legal and physical custody of the children, subject to Rufus' supervised parenting time; no overnight parenting time was to occur until Rufus completed an anger management class and a parenting class. According to the February 2018 juvenile court orders terminating Rufus' parental rights: Isaiah and Gracelynn were removed from the family home and placed in foster care by the Nebraska Department of Health and Human Services (DHHS) in April 2016, and on May 4, Tricha entered a "no contest" plea to the State's juvenile petition(s) and the children were adjudicated to be within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2015). During these juvenile court proceedings, the court was informed that Tricha intended to relinquish her parental rights to the children. Because Tricha is not part of this appeal, she will only be discussed as necessary.

On October 12, 2017, the State filed separate supplemental petitions for termination of Rufus' parental rights to Isaiah and Gracelynn. The State alleged that the children were found to be within the meaning of § 43-247(3)(a) in May 2016. The State further alleged that Rufus' parental rights to the children should be terminated pursuant to Neb. Rev. Stat. § 43-292(1) and (2) (Reissue 2016). According to the State, Rufus had abandoned Isaiah and Gracelynn for 6 months or more immediately prior to the filing of the petitions; Rufus substantially and continuously or repeatedly neglected and refused to give each child, or a sibling, necessary care and protection; and termination was in the children's best interests.

At a hearing on November 15, 2017, the juvenile court said, "This is scheduled for a first appearance termination of parental rights for the father, Rufus . . . who's not present." Rufus' counsel was present at the hearing. The State presented evidence of its "diligent efforts" to locate Rufus, and that the Sheriff of Pottawattamie County, Iowa (where Rufus purportedly lived) was unable to locate and serve him with summons. The State requested and received permission to serve Rufus by publication. The court set the termination of parental rights hearing for January 31, 2018.

The termination of parental rights hearing was held on January 31, 2018. Rufus was not present, but his counsel was present and asked for a continuance, which was denied by the juvenile court. Counsel also objected to service by publication, but the objection was overruled. The hearing proceeded and the State presented evidence as to why Rufus' parental rights to Isaiah and Gracelynn should be terminated. That evidence will be set forth later in our analysis.

In separate orders filed on February 16, 2018, the juvenile court terminated Rufus' parental rights to Isaiah and Gracelynn after finding that statutory grounds for termination existed pursuant to § 43-292(1) and (2), and that termination of parental rights was in the children's best interests.

Rufus appeals the juvenile court's orders.

III. ASSIGNMENTS OF ERROR

Rufus assigns 10 errors to the juvenile court which we have consolidated and reordered as follows. He claims the juvenile court erred by (1) allowing the termination of parental rights hearing to proceed without proper service of process, (2) allowing the termination of parental rights hearing to proceed without advising Rufus of his rights and taking a plea, (3) denying Rufus'motions to continue, (4) granting judicial notice of records, (5) finding statutory grounds existed to terminate his parental rights under § 43-292, and (6) finding termination of his parental rights was in the children's best interests.

IV. STANDARD OF REVIEW

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 Isabel P. et al., 293 Neb. 62, 875 N.W.2d 848 (2016).

V. ANALYSIS

1. SERVICE OF SUMMONS AND NOTICE BY PUBLICATION

When the termination of parental rights is sought, the facts and alleged grounds for termination may be set forth in an original petition, a supplemental petition, or a motion filed with the court. See Neb. Rev. Stat. § 43-291 (Reissue 2016). Summons and notice, with a copy of the petition, supplemental petition, or motion attached, is to be given in the same manner as required in other cases before the juvenile court. See id. And, with an exception not relevant in this case, "notice, when required, shall be given in the manner provided for service of a summons in a civil action." Neb. Rev. Stat. § 43-268 (Reissue 2016).

The statues governing service of a summons in civil actions can be found in Chapter 25, Article 5 of the Nebraska statutes. As relevant here, the sheriff attempted to personally serve Rufus at what the State thought was Rufus' residence. See Neb. Rev. Stat. §§ 25-505.01 (service of summons; methods), 25-506.01 (process, by whom served), and 25-508.01 (service on individual) (Reissue 2016). When the sheriff was unable to locate Rufus at the address provided, the State sought and received permission from the juvenile court to provide service by publication. The court may allow service by publication upon motion and showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statue. See Neb. Rev. Stat. § 25-517.02 (Reissue 2016). Service by publication is governed by Neb. Rev. Stat. §§ 25-518.01 through 25-525 (Reissue 2016).

Rufus argues that the service by publication in this case was flawed because (1) he could have been personally served, (2) the procedures for service by publication were not properly complied with, and (3) service by publication should not be constitutionally allowed in termination of parental rights cases. In response, the State asserts that it made diligent efforts to personally serve Rufus, but those efforts were unsuccessful, thus the court granted the State leave to attempt to perfect service by publication. We express no opinion as to whether the State made "diligent efforts" to personally serve Rufus. And the State concedes that it did not comply with the statutory requirements for service by publication. However, the State contends that Rufus' "objections to service were waived by voluntary appearance of [his] counsel." Brief for appellee at 10. As explained below, we agree that Rufus has waived any defects in service of process.

Neb. Rev. Stat. § 25-516.01 (Reissue 2016) states:

(1) The voluntary appearance of the party is equivalent to service.

(2) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process may be asserted only under the procedure provided inthe pleading rules adopted by the Supreme Court. If any of those defenses are asserted either by motion or in a responsive pleading and the court overrules the defense, an objection that the court erred in its ruling will be waived and not preserved for appellate review if the party asserting the defense either (a) thereafter files a demand for affirmative relief by way of counterclaim, cross-claim, or third-party claim or (b) fails to dismiss a demand for such affirmative relief that was previously filed. If any of those defenses are asserted either by motion or in a responsive pleading and the court overrules the defense, an objection that the court erred in its ruling on any issue, except the objection that the party is not amenable to process issued by a court of this state, will be waived and not preserved for appellate review if the party asserting the defense thereafter participates in proceedings on any issue other than those defenses.

(Emphasis supplied.) Based on the statutory language above, the Nebraska Supreme Court has said that "a general appearance waives any defects in the process or notice, the steps preliminary to its issuance, or in the service or return thereof." Burns v. Burns, 293 Neb. 633, 640, 879 N.W.2d 375, 382 (2016). "It does not take much to make a general appearance." Id. at 642, 879 N.W.2d at 383. "For example, . . . a motion for a continuance constitutes a general appearance that confers jurisdiction over the moving party." Id.

In this case, Rufus' attorney did not object to service by publication at the November 2017 hearing. Then at the termination hearing in January 2018, counsel started by noting that his client, though aware of the proceedings, was not present in court, and counsel could only "assume" that "that there [was] some problem for him to attend"; counsel made a motion for a continuance "to allow [Rufus] to attend." After the motion to continue was denied, Rufus' counsel did raise issues of service to the juvenile court, but his objections were overruled. Counsel then proceeded to participate in the termination proceedings by cross-examining the State's...