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IN RE INTEREST OF JOSHUA G.

Cite as 26 Neb. App. 411

In re Interest of Joshua G., a c

under 18 years of ag

State of Nebraska, appellee,

v. Fred G., appellan

___ N.W.2d ___

Filed October 9, 2018. No. A-17-1309.

1. Parental Rights: Notice. Proceedings to terminate parental rights must 

employ fundamentally fair procedures satisfying the requirements of due 

process; this rule applies to notice requirements.

2. Parental Rights: Due Process: Notice: Jurisdiction. In proceedings to 

terminate parental rights, once the court acquires jurisdiction over the 

person, due process still requires that such person be afforded reasonable notice of further proceedings.

3. Service of Process: Notice. Service by publication under Neb. Rev. 

Stat. § 43-268(2) (Reissue 2016) can be made only after a reasonably 

diligent search fails to locate the party to be served.

4. ____: ____. A reasonably diligent search for the purpose of justifying 

service by publication does not require the use of all possible or conceivable means of discovery, but is such an inquiry as a reasonably prudent person would make in view of the circumstances and must extend 

to those places where information is likely to be obtained and to those 

persons who, in the ordinary course of events, would be likely to receive 

news of or from the absent person.

5. ____: ____. Whether all reasonable means to qualify a search as a “reasonably diligent” one have been exhausted must be determined by the 

circumstances of each particular case.

Appeal from the County Court for Scotts Bluff County: 

James M. Worden, Judge. Affirme

Darin J. Knepper, Deputy Scotts Bluff County Public 

Defender, for appellant.

Nebraska Supreme Court Online Library

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

10/16/2018 08:11 AM CDT
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IN RE INTEREST OF JOSHUA G.

Cite as 26 Neb. App. 411

Danielle Larson, Deputy Scotts Bluff County Attorney, 

for appellee.

Moore, Chief Judge, and Bishop and Arterburn, Ju

Arterburn, Judg

INTRODUCTION

Fred G. appeals the order of the county court for Scotts 

Bluff County which terminated his parental rights to his son, 

Joshua G. On appeal, Fred asserts that he was not provided 

with proper notice of the termination proceedings because the 

State’s affidavit for service by publication was legally insufficient. As a result, Fred argues he was denied his due process 

right to participate in the termination proceedings. For the 

reasons set forth herein, we find Fred’s assertion to be without 

merit, and we affirm the decision of the county court to terminate his parental rights.

BACKGROUND

The juvenile court proceedings below involve Joshua, born 

in January 2015, and his parents, Fred and Martha H. Martha 

previously relinquished her parental rights to Joshua. As a 

result, she is not a party to this appeal and will be discussed 

only to the extent necessary to provide context.

On May 10, 2016, when Joshua was almost 18 months old, 

the State filed a juvenile court petition alleging that Joshua 

was a juvenile as described by Neb. Rev. Stat. § 43-247(3)(a) 

(Supp. 2015) due to the faults or habits of both Fred and 

Martha. Specifically, the petition alleged that Fred and Martha 

had failed to provide Joshua with safe and stable housing and 

with necessary care. In addition, it alleged that Joshua was at 

risk for harm due to Fred and Martha’s engaging in domestic 

violence and using illegal substances. Fred was personally 

served with the petition.

A first appearance hearing was held on May 19, 2016. Fred 

appeared at this hearing, affirmed that he had been personally 
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Cite as 26 Neb. App. 411

served with a copy of the petition, and entered a denial to the 

allegations contained within the petition. Fred appeared at a 

subsequently held hearing in July, in order to contest Joshua’s 

placement with his maternal grandparents.

Fred appeared in the county court again on August 15, 2016. 

At that time, a contested adjudication hearing was held. At 

this hearing, the State presented evidence that Fred had been 

repeatedly arrested for assaulting Martha, including on one 

occasion after the juvenile court petition had been filed and an 

active protection order was in place. Fred had been in jail since 

February. The State offered evidence to demonstrate that Fred 

used methamphetamine.

Fred testified at the hearing and denied that he was currently using drugs. However, he admitted to assaulting Martha. 

He testified that on one occasion, they got into an altercation 

and, while holding Joshua, Fred “hit [Martha] right in the eye 

as hard as [he] possibly could [and] gave her . . . basically 

two black eyes from it.” He testified that he had recently 

been released from jail and was renting a two-bedroom house. 

Ultimately, the county court adjudicated Joshua as a child 

within the meaning of § 43-247(3)(a) as to Fred.

Subsequent hearings were held in September and December 

2016 and in February and April 2017. Fred appeared at 

and participated in each of these hearings. Shortly after 

the April 2017 hearing, Fred appeared at an office of the 

Department of Health and Human Services (the Department) 

and indicated he wished to relinquish his parental rights to 

Joshua. He filled out all of the necessary paperwork, but 

then admitted that he was under the influence of drugs and, 

in fact, had taken drugs right before arriving. As a result 

of this admission, the Department could not accept Fred’s 

relinquishment.

At a hearing in July 2017, Fred did not appear. The State 

offered evidence which demonstrated that Fred had not participated in any services, including visitation with Joshua, 

since April. In addition, Martha informed the court that Fred 
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Cite as 26 Neb. App. 411

was no longer in Nebraska and that she did not believe he 

was going to return. She stated, “[H]e works in Cheyenne, 

Wyoming, and he stays between there and Fort Collins, 

Colorado.”

On September 13, 2017, the State filed a motion to terminate Fred’s parental rights to Joshua. At a subsequent hearing, 

the State informed the county court that it had been unable 

to serve Fred with the motion to terminate “because nobody 

knows his address.”

The State filed a motion for service by publication on 

October 12, 2017. In the motion, the State alleged that “service cannot be made upon [Fred] with reasonable diligence by 

either personal service or by leaving notice of summons at 

[Fred’s] usual place of residence which is unknown at this 

time.” Attached to the motion was an affidavit which alleged, 

among other things, that the State had attempted, unsuccessfully, to serve Fred at his last known address in Nebraska. The 

State also alleged that the Department had not had contact with 

Fred since April and that he was believed to be somewhere in 

Cheyenne, Wyoming.

The county court granted the State’s motion to serve Fred by 

publication. Notice of the motion to terminate Fred’s parental 

rights to Joshua and the date of the scheduled hearing on the 

motion was published in a Scottsbluff, Nebraska, newspaper on 

October 22 and 29 and November 5, 2017.

After the State had published notice of the motion to terminate Fred’s parental rights, Fred’s court-appointed counsel 

filed a document disclosing potential witnesses for the termination hearing. Included in the list of potential witnesses 

was Fred.

The termination hearing was held on November 20, 2017. 

Fred did not appear at the hearing. At the start of the hearing, the county court noted that Fred’s counsel had previously 

filed a motion to continue the hearing, but that the motion had 

been denied. A copy of the motion to continue is not included 

in our record. The State offered into evidence an exhibit 
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Cite as 26 Neb. App. 411

demonstrating that Fred had been served “via publication.” 

Fred’s counsel did not object to the exhibit.

The State went on to present evidence in support of 

its motion to terminate Fred’s parental rights. Part of the 

State’s evidence addressed Fred’s current whereabouts. The 

Department caseworker assigned to the family’s case, Breanna 

Bird, testified that she had not had any contact with Fred from 

April 2017 to approximately 2 weeks prior to the termination hearing. At that time, she was able to reach Fred on the 

telephone. She indicated that Fred refused to tell her where 

he was, but he did say he was “in a different time zone.” Bird 

testified that she did inform Fred that a motion to terminate his 

parental rights had been filed. However, she could not provide 

any more details because Fred immediately indicated that he 

was at work and could not talk at that time. He told Bird that 

he would be able to speak after work. However, when Bird 

called him back later, Fred did not answer.

Bird also testified that in July 2017, Martha told her that 

both she and Fred were residing in Wyoming. However, 

Martha also told Bird that she was “wanting to leave Fred 

there.” By September, when the motion to terminate Fred’s 

parental rights was filed, Martha told Bird that she did not 

know where Fred was. She thought he might be back in 

Nebraska, but had not had any contact with him.

Other evidence revealed that after April 2017, Fred had sent 

text messages to Joshua’s foster mother to ask about Joshua. 

However, the text messages stopped about a month prior to the 

termination hearing and Joshua’s foster mother did not know 

where Fred was located.

At the close of the State’s evidence, Fred’s counsel asked 

that the county court not terminate Fred’s parental rights at 

that time so that Fred could participate in subsequent hearings. Counsel indicated, “[Fred] was unable to be back for his 

hearing.” Ultimately, the county court entered an order terminating Fred’s parental rights to Joshua.

Fred appeals from the county court’s order.
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IN RE INTEREST OF JOSHUA G.

Cite as 26 Neb. App. 411

ASSIGNMENT OF ERROR

On appeal, Fred asserts that the State’s affidavit for service 

by publication was legally insufficient and that, as a result, 

he was denied due process because he did not receive proper 

notice of the termination proceedings.

ANALYSIS

In its brief to this court, the State argues that Fred has 

waived his objections to any insufficiency in the service of 

process because he failed to object to the service at any time 

prior to the conclusion of the termination hearing. Specifically, 

the State argues:

Despite ample opportunities to raise issue with the 

form of service in this case, counsel for the father waited 

until quite literally the very end of the line. Allowing 

represented parties to wait until after the conclusion of 

the case on the merits to raise issue with the beginning 

of the case is against public policy, ideas about judicial 

efficiency, and case law.

Brief for appellee at 7.

While the State’s argument regarding whether Fred has 

waived any objection to the service is well taken, we need not 

decide the issue of waiver in this case. Our record on appeal 

clearly provides sufficient evidence to demonstrate that the 

State conducted a reasonably diligent search for Fred and that 

service by publication was proper.

Our record discloses that Fred was personally served with 

the juvenile court petition filed by the State. In addition, he 

was present personally at many of the various hearings held by 

the county court, commencing with the first appearance hearing in May 2016 and continuing through a review hearing in 

April 2017. Even after Fred stopped appearing at the hearings, 

his court-appointed counsel continued to appear on his behalf. 

Therefore, there is no question as to the court’s jurisdiction 

over Fred. However, Fred was still entitled to notice that a 

motion to terminate his parental rights had been filed and when 
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the hearing was to be held on that motion. Neb. Rev. Stat. 

§ 43-267(2) (Reissue 2016) provides:

Notice of the time, date, place, and purpose of any juvenile court hearing subsequent to the initial hearing, for 

which a summons or notice has been served or waived, 

shall be given to all parties either in court, by mail, or in 

such other manner as the court may direct.

[1,2] In addition, the Nebraska Supreme Court has held 

that proceedings to terminate parental rights must employ 

fundamentally fair procedures satisfying the requirements of 

due process. In re Interest of A.G.G., 230 Neb. 707, 433 

N.W.2d 185 (1988). This rule applies to notice requirements. 

Id. Once the court acquires jurisdiction over the person, as it 

did in this case, due process still requires that such person be 

afforded reasonable notice of further proceedings. However, 

we note that once a person has appeared and has been afforded 

the benefit of counsel, that person has an obligation to keep 

counsel and the court informed of his or her whereabouts. 

See id. This Fred failed to do. In fact, evidence in our record 

suggests that Fred was actively evading the State’s efforts to 

locate him.

Because Fred removed himself from the state in the middle 

of the juvenile court proceedings and failed to provide anyone 

with his contact information, the State was unable to serve him 

with the motion to terminate his parental rights either personally or by mail. As a result, the State requested the court’s 

permission to serve the motion by publication.

[3] Neb. Rev. Stat. § 43-268(2) (Reissue 2016) provides 

for service by publication in juvenile court proceedings as 

follows:

[N]otice, when required, shall be given in the manner 

provided for service of a summons in a civil action. Any 

published notice shall simply state that a proceeding 

concerning the juvenile is pending in the court and that 

an order making an adjudication and disposition will be 

entered therein. . . . Such notice shall be published once 
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each week for three weeks, the last publication of which 

shall be at least five days before the time of hearing.

Notice “in the manner provided for service of summons in a 

civil action,” as described in § 43-268(2), is provided for in 

Neb. Rev. Stat. § 25-517.02 (Reissue 2016), which provides 

that service may be made by publication “[u]pon motion and 

showing by affidavit that service cannot be made with reasonable diligence by any other method provided by statute . . . .” 

Accordingly, service by publication under § 43-268(2) can be 

made only after a reasonably diligent search fails to locate the 

party to be served. See In re Interest of A.W., 224 Neb. 764, 

401 N.W.2d 477 (1987).

The crux of Fred’s argument on appeal is that the State did 

not sufficiently demonstrate that it had conducted a reasonably 

diligent search to locate him and that, as a result, notice by 

publication was not proper. Upon our review of the record, we 

find that Fred’s assertion lacks merit.

[4,5] A reasonably diligent search for the purpose of justifying service by publication does not require the use of all 

possible or conceivable means of discovery, but is such an 

inquiry as a reasonably prudent person would make in view 

of the circumstances and must extend to those places where 

information is likely to be obtained and to those persons who, 

in the ordinary course of events, would be likely to receive 

news of or from the absent person. In re Interest of A.W., supra. 

Whether all reasonable means to qualify a search as a “reasonably diligent” one have been exhausted must be determined by 

the circumstances of each particular case. Id.

In the State’s affidavit in support of its request to provide 

notice by publication, it indicated that it had attempted to 

serve Fred with the motion to terminate his parental rights 

at his last known address in Nebraska. However, he was no 

longer at that address and, in fact, had not had contact with 

the Department for approximately 5 months. In addition, the 

affidavit indicated that Fred was “believed to be somewhere in 

Cheyenne, Wyoming, although an exact address is unknown.” 
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The affidavit also detailed the Department’s attempt to determine Fred’s whereabouts through Martha. This attempt was 

not successful.

In determining whether the State conducted a reasonably 

diligent search for Fred, we also look to the evidence adduced 

at the termination hearing. That evidence reveals that by 

September 2017, when the motion to terminate Fred’s parental rights was filed, Martha was no longer residing with Fred 

and did not know where he could be located. Previously, she 

had indicated that Fred was somewhere between Cheyenne, 

Wyoming, and Fort Collins, Colorado. She also indicated that 

Fred had been “hiding” from a warrant. Joshua’s foster mother 

had received periodic text messages from Fred since his last 

contact with the Department, but she too did not know where 

Fred was residing.

In addition, when Bird was finally able to contact Fred 

by telephone 2 weeks prior to the termination hearing, Fred 

affirmatively declined to provide her with his address, instead 

simply indicating that he was “in a different time zone.” During 

that same telephone call, Bird informed Fred that a motion to 

terminate his parental rights had been filed. Fred immediately 

ended the conversation before Bird could provide him with 

details about the scheduled hearing on the motion. Fred did not 

answer Bird’s followup telephone call.

Given all of the evidence, we find that the State conducted a 

reasonably diligent search to locate Fred in order to serve him 

with the motion to terminate his parental rights. Of particular 

importance to our finding is that Fred voluntarily removed 

himself from Nebraska and from Joshua, knowing that the 

juvenile court proceedings were pending. After participating 

in the proceedings for months, Fred failed to provide his attorney, the court, or the Department with any contact information. And, based on Fred’s telephone conversation with Bird 

just prior to the hearing, it appears that Fred was purposefully 

evading the State’s diligent efforts to locate him. There is 

nothing in our record to indicate that Fred took any steps to 
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learn more about the motion to terminate his parental rights 

or the hearing on the motion after he was informed that the 

motion had been filed.

The State attempted to contact Fred through Martha, who 

presumably is the most likely person known to the State 

to have received any information about Fred’s whereabouts. 

However, it is clear from our record that by the time the State 

filed the motion to terminate Fred’s parental rights, Martha 

denied having any knowledge of Fred’s location.

Despite the State’s reasonably diligent efforts, it was unable 

to determine what state Fred was living in, let alone his specific physical address. The county court’s decision to allow the 

State to serve the motion to terminate through publication is 

adequately supported by the record.

CONCLUSION

Upon our review, we find that the State made a reasonably 

diligent search for Fred in order to notify him of the pending termination proceedings. Because the State was unable to 

locate Fred after that search, service by publication was proper 

and Fred was not denied his right to due process. After the 

service by publication was completed, the county court held 

a termination hearing where it heard evidence and ultimately 

terminated Fred’s parental rights. Fred does not challenge the 

sufficiency of the evidence to terminate his parental rights. We 

affirm the order of the county court in all respects.

Affirme