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302 Nebraska Reports

IN RE INTEREST OF MICHAEL N.

Cite as 302 Neb. 652

In re Interest 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. Heather 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 juvenile 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/29/2019 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

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 involving 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 service and filed motions for recusal of the trial judge. After the 

parents argued unsuccessfully in favor of recusal, the juvenile 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 conclude 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 numbers 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 custody 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 multiple 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 adjudication 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 provide 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 pursuant 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), reasonable 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 placement 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 supplemental 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 whereabouts 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 adjudication. 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 concerning Michael’s custody and placement. In response, the 

State asked the court to take judicial notice of the affidavit 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. 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 perfected 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 provided 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 — honestly, 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 prerogative 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 thinking about it.

The juvenile court heard brief arguments from the parties on 

the State’s motions to dismiss, with the parents’ counsel arguing 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 themselves 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 detention 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 petitions 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 objective 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 themselves to the court for the appointment of counsel, despite the 

fact that they had not been served or notified of the proceedings 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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302 Nebraska Reports

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 removing the County Attorney’s Office from the case and appointing 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 parents were served in the State of Washington with notice of the 

April 9 hearing. The special prosecutor offered documents purporting 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 personally 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 hearing for June 1.

The County Attorney’s Office timely appealed, and the parents 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 service 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 prejudice 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, counsel 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 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. 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 proceedings. 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 substantial 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.

Cite as 302 Neb. 652

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 substantial right of the State. The County Attorney’s Office claims 

that the State’s substantial right to protect the welfare of children 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 adjudications 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 dismissing an adjudication petition brought by the State without 

leave to amend affected the State’s substantial right to protect 
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IN RE INTEREST OF MICHAEL N.

Cite as 302 Neb. 652

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 disqualifying 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 litigation, 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 reason 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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IN RE INTEREST OF MICHAEL N.

Cite as 302 Neb. 652

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 proceeding 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 contention. 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 special 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 proceeding brought for that purpose.” Id. This is a juvenile court proceeding, not a proceeding brought for the purpose of challenging 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.

Cite as 302 Neb. 652

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 supplemental 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 substantial rights are not determined by the court’s order overruling 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 resolution 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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IN RE INTEREST OF MICHAEL N.

Cite as 302 Neb. 652

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 correctness 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 overruling 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 hearing 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 diverging 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 constituted 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 hearing 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 detention 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 dismissals 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 hearing 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 detention 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 knowledge 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’ assertions that their due process rights were violated by the detention 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 detention 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 termination, 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 actually be present in court; the appearance by counsel alone does 

not trigger the statute. See In re Interest of Maxwell T., 15 

Neb. 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 juvenile 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 appointment 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 presentation of the cause of action. See Torres v. Morales, 287 Neb. 

587, 843 N.W.2d 805 (2014). The inquiry is whether a reasonable 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 service of process, which is the basis of their due process arguments. 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 judicial 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 contend, communicated the judge’s view of how the State should 
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proceed and crossed the line from neutral and unbiased decisionmaker 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 inviting 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 without 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 simply do not understand how signing the ex parte order demonstrates 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 perceive 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 unresolved 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.

Affirmed in part, and in part dismissed.

Papik, J., concurring.

I concur fully in this court’s decision, including the determination 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 prosecutor. 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 appointment 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 prosecutor under the limited circumstances of the “absence, sickness, 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 litigated. 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 separation 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 impartiality. 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 presented to or passed upon by the trial court”).

Stacy and Freudenberg, JJ., join in this concurrence.