Nebraska Advance Sheets

IN RE INTEREST OF KODI L. 35

Cite as 287 Neb. 35

In re Interest of Kodi L., a child under 18 years of age.

State of Nebraska, appellee, v. 

Michael L., appellant.

___ N.W.2d ___

Filed December 13, 2013. No. S-13-242.

1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases 

de novo on the record and reaches its conclusions independently of the juvenile 

court’s findings.

2. Paternity. The proper legal effect of a signed, unchallenged acknowledgment of 

paternity is a finding that the individual who signed as the father is in fact the 

legal father.

3. ____. An acknowledgment of paternity can be challenged on the basis of fraud, 

duress, or material mistake of fact.

4. Appeal and Error. In order to be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the brief of the 

party asserting the error.

5. ____. Errors assigned but not argued will not be addressed on appeal.

6. ____. An issue not presented to or passed on by the trial court is not appropriate 

for consideration on appeal.

Appeal from the County Court for Madison County: Ross A. 

Stoffer, Judge. Affirmed.

Joel E. Carlson, of Stratton, DeLay, Doele, Carlson & 

Buettner, P.C., L.L.O., for appellant.

Gail E. Collins, Deputy Madison County Attorney, for 

appellee.

Bradley C. Easland, of Morland, Easland & Lohrberg, P.C., 

guardian ad litem.

Wright, Connolly, Stephan, McCormack, Miller-Lerman, 

and Cassel, JJ.

Wright, J.

NATURE OF CASE

Michael L. appeals his exclusion and dismissal from the 

juvenile proceedings involving Kodi L. The juvenile court dismissed Michael because it found that the acknowledgment of 

paternity signed by him was fraudulent. Although Michael was 

not Kodi’s biological father, he was named as Kodi’s father 
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36 287 NEBRASKA REPORTS

in the juvenile proceedings based upon the acknowledgment 

of paternity.

Under Neb. Rev. Stat. § 43-1409 (Reissue 2008), a notarized 

acknowledgment of paternity creates a rebuttable presumption 

of paternity that can be challenged only on the basis of fraud, 

duress, or material mistake of fact. In the instant case, the 

juvenile court found that the acknowledgment of paternity was 

fraudulent, because Michael knew when he signed it that he 

was not Kodi’s biological father. Therefore, the presumption of 

paternity was rebutted, and the court dismissed Michael from 

the proceedings. We affirm.

SCOPE OF REVIEW

[1] We review juvenile cases de novo on the record and 

reach our conclusions independently of the juvenile court’s 

findings. In re Interest of Edward B., 285 Neb. 556, 827 

N.W.2d 805 (2013).

FACTS

Shawntel H. gave birth to Kodi in August 2012. Shortly 

after Kodi’s birth, Shawntel and Michael signed a sworn 

acknowledgment of paternity naming Michael as Kodi’s biological father before a notary public. When they executed the 

acknowledgment of paternity, both Shawntel and Michael were 

aware that Michael was not Kodi’s biological father. Despite 

this fact, they requested that the birth certificate name Michael 

as the father and that Kodi take Michael’s last name. In the 

months following Kodi’s birth, Michael lived with Shawntel 

and Kodi in an apartment.

On December 5, 2012, Kodi was removed from the home 

based on Shawntel’s use and sale of methamphetamine. The 

State subsequently filed an amended juvenile petition alleging 

that Kodi was a child within Neb. Rev. Stat. § 43-247(3)(a) 

(Reissue 2008). Shawntel admitted the allegations, and the 

county court for Madison County, sitting as a juvenile court, 

granted the petition for adjudication. It ordered that Kodi be 

placed in the custody of the Department of Health and Human 

Services. In the amended petition, Michael was identified as 

Kodi’s father.
Nebraska Advance Sheets

IN RE INTEREST OF KODI L. 37

Cite as 287 Neb. 35

On February 15, 2013, Kodi’s guardian ad litem moved to 

exclude Michael from the juvenile proceedings, challenging 

on the basis of fraud the acknowledgment of paternity signed 

by Michael. The guardian ad litem alleged that the acknowledgment was fraudulent because Shawntel and Michael signed 

it despite knowing that Michael was not Kodi’s biological father.

On February 21, 2013, the juvenile court held a hearing on 

the motion to exclude. At this hearing, Michael was present 

and was acknowledged as “[t]he juvenile’s father.”

In support of the motion to exclude, the guardian ad 

litem presented testimony from Kari Kraenow, the Department 

of Health and Human Services caseworker assigned to the 

case. Following Kodi’s removal from the home, Kraenow 

had talked with Shawntel and Michael about Kodi’s paternity. Both Shawntel and Michael told Kraenow that Shawntel 

was already pregnant when they met, but that Shawntel did 

not want the biological father to be involved. Shawntel and 

Michael told Kraenow that Michael signed the acknowledgment of paternity because they both wanted him to be 

Kodi’s father. According to Kraenow, Shawntel recognized 

that “Jack D.” was Kodi’s biological father, but she identified 

Michael as the “legal father.” Kraenow also testified that both 

Shawntel and Michael admitted to knowing Michael was not 

Kodi’s biological father when they signed the acknowledgment of paternity.

On cross-examination, Michael told a similar story regarding 

why he signed the acknowledgment of paternity. He admitted 

that he and Shawntel knew when they signed the acknowledgment that he was not Kodi’s biological father. They signed it 

because they wanted Michael “to be the father.” According to 

Michael, he and Shawntel “didn’t want [the biological father] 

to being [sic] any part of . . . Kodi’s life. And so [Michael] 

stepped up as a man to be the father of that child.” Despite 

testifying that he did not read the acknowledgment before 

signing it, Michael stated that he knew the acknowledgment 

was “to clarify who the parents were.” He would not admit 

that he knew the acknowledgment was false when he signed 

it, but seemed to believe that the biological father did not need 
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38 287 NEBRASKA REPORTS

to be involved or did not have the right to be involved because 

the pregnancy was the result of an alleged rape. (Shawntel had 

never filed a complaint about the alleged rape or reported it to 

the authorities.)

Evidence was adduced that Michael was facing charges and 

possible incarceration for 13 felony counts. The guardian ad 

litem also offered into evidence a “DNA Test Report” showing 

that there was a 0-percent probability that Michael was Kodi’s 

biological father.

At the conclusion of the hearing, the juvenile court found 

that the guardian ad litem had met its burden under § 43-1409 

to rebut the presumption of paternity arising from the notarized acknowledgment of paternity. The court found that the 

acknowledgment was fraudulent because “both Shawntel . . . 

and Michael . . . admitted that at the time they signed said 

document they both knew that Michael . . . was not the biological father of Kodi.” Because the presumption was rebutted, 

the court ruled that the acknowledgment was “of no force and 

effect at this point in time.” Based on the DNA test results, the 

court found that “there is a zero percent chance that [Michael] 

is the biological father of Kodi.” Therefore, it concluded that 

“there is nothing in the Juvenile Petition filed herein that 

applies to Michael . . . as he is not the biological father of 

Kodi . . . nor is he the step-parent to Kodi.” Accordingly, 

the court granted the guardian ad litem’s motion to exclude 

Michael and dismissed him from the proceedings.

Michael timely appeals. Pursuant to our statutory authority 

to regulate the dockets of the appellate courts of this state, we 

moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3) 

(Reissue 2008).

ASSIGNMENT OF ERROR

Michael assigns that the juvenile court erred in excluding 

him as a party to the proceedings.

ANALYSIS

[2,3] The juvenile court excluded Michael because it found 

that the presumption of paternity arising from the notarized 

acknowledgment of paternity had been successfully rebutted. 
Nebraska Advance Sheets

IN RE INTEREST OF KODI L. 39

Cite as 287 Neb. 35

Our case law provides that “the proper legal effect of a signed, 

unchallenged acknowledgment of paternity is a finding that the 

individual who signed as the father is in fact the legal father.” 

Cesar C. v. Alicia L., 281 Neb. 979, 985, 800 N.W.2d 249, 

254 (2011). However, an acknowledgment of paternity can be 

challenged “on the basis of fraud, duress, or material mistake 

of fact.” § 43-1409. In the instant case, the juvenile court determined that the acknowledgment was fraudulent and, accordingly, set it aside as having no legal effect.

[4,5] Michael does not argue that it was error to set aside 

the acknowledgment as fraudulent. In order to be considered 

by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party 

asserting the error. J.P. v. Millard Public Schools, 285 Neb. 

890, 830 N.W.2d 453 (2013). Errors assigned but not argued 

will not be addressed on appeal. Peterson v. Ohio Casualty 

Group, 272 Neb. 700, 724 N.W.2d 765 (2006). Therefore, 

because Michael does not argue that it was error to set aside 

the acknowledgment, we do not review the juvenile court’s 

decision to set it aside.

[6] Michael argues that the juvenile court erred in excluding 

him from the proceedings because he “was an active physical 

custodian and caregiver of [Kodi].” Brief for appellant at 6. 

But he did not make that argument before the juvenile court. 

When announcing its ruling, the juvenile court emphasized 

multiple times that Michael was excluded only to the extent 

that he was not Kodi’s legal father, as had been alleged in 

the amended petition. Michael then asked whether he might 

be allowed to participate on other grounds, and the juvenile court left open the possibility that he could participate 

based on “another legal theory” besides paternity. Despite that 

opportunity, the record does not reflect that Michael has made 

any motions in the juvenile court to intervene or be named 

as a party in Kodi’s juvenile proceedings on the basis of any 

relationship besides paternity. “[A]n issue not presented to or 

passed on by the trial court is not appropriate for consideration 

on appeal.” Sherman T. v. Karyn N., 286 Neb. 468, 475, 837 

N.W.2d 746, 753 (2013). Michael did not argue before the 
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40 287 NEBRASKA REPORTS

juvenile court that he was Kodi’s custodian. Therefore, we do 

not consider that argument on appeal.

In summary, Michael argues that he should be included as 

a party on grounds not presented to the juvenile court. Yet, 

he fails to challenge the juvenile court’s key decision leading 

to his exclusion—the setting aside of the acknowledgment of 

paternity as fraudulent. As such, the only question properly 

before this court is whether the juvenile court erred in dismissing Michael from the proceedings after it had set aside the 

acknowledgment of paternity.

We find no error in this regard. Once the acknowledgment was set aside, Michael could no longer claim that he 

was Kodi’s legal father. And the evidence before the juvenile 

court conclusively established that Michael was not Kodi’s 

biological father. The acknowledgment was Michael’s sole 

basis for claiming that he was Kodi’s father. Therefore, once 

the acknowledgment was set aside, he had no interest in the 

juvenile proceedings as a father. The juvenile court did not err 

in excluding Michael, because he was neither the legal nor the 

biological father.

CONCLUSION

For the aforementioned reasons, we affirm the juvenile court’s order dismissing Michael from the juvenile 

proceedings.

Affirmed.

Heavican, C.J., not participating.

State of Nebraska, appellee, v. 

Gregory D. Fester II, appellant.

___ N.W.2d ___

Filed December 13, 2013. No. S-13-401.

1. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel 

provided ineffective assistance presents a mixed question of law and fact. 

An appellate court reviews the district court’s factual findings for clear error. 

Whether defense counsel’s performance was deficient and whether the defendant 

was prejudiced by that performance are questions of law that the appellate court 

reviews independently of the district court’s decision.