Michael E. V. State

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Michael E. V. State

Caselaw No.
286 Neb. 532
Filed on
Friday, September 6, 2013


SUMMARY: A known adjudicated or biological father who has provided regular and substantial financial support to his child must be notified of abuse/neglect proceedings prior to the dispositional phase pursuant to N.R.S. 43-263 and 43-265. DHHS and its employees are protected by sovereign and qualified immunity because they did not violate a clearly established right.

Avalyn, DOB 9/02, is the child of Michael and April, who were never married. Their relationship is unclear but Michael was ordered to pay child support and did so through a paycheck withdrawal while he was employed. In September 2005, Avalyn was removed from the mother’s home and placed with the maternal grandmother. The court then permitted April to move into the grandmother’s home. At adjudication in September, the court ordered that Michael be notified of the proceedings but the caseworkers did not do so prior to the disposition hearing. In April 2006, six months after disposition, the Foster Care Review Board notified Michael of the proceedings. Michael intervened and Avalyn was placed with him in October 2006, with the parents eventually agreeing to split time. Michael then filed a civil rights action under 42 U.S.C. 1983 against the State and DHHS employees alleging constitutional violations to familial integrity, substantive due process, and equal protection. The district court found N.R.S. 43-263 and 43-265 unconstitutional on their face and as applied to Michael, but concluded that sovereign immunity barred Michael from damages and that the employees were protected by qualified immunity. Michael appealed.

The Nebraska Supreme Court affirmed in part and reversed in part the lower court’s ruling. As to civil damages, the Supreme Court agreed with DHHS that sovereign and qualified immunity applied in this case because the caseworkers were following what they thought was a constitutional law and their interpretation of DHHS regulations did not rise to the level of a constitutional violation. As to N.R.S. 43-263 and 43-265 and whether notice should have been given to Michael, the Supreme Court cited prior appellate opinions that have extended the right to notice of an adjudication to a noncustodial parent. 286 Neb. 532, 542 (citing In re Interest of B.J.M. et al., 1 Neb. App. 851, 510 N.W.2d 418 (1993)), but noted that these cases dealt with children born during the parents’ marriage. It also noted the United States Supreme Court’s determination that “mere existence of a biological link does not merit equivalent constitutional protection” to that of an involved parent, Id. at 544 (quoting Lehr v. Robertson, 463 U.S. 248, 260, 103 S. Ct. 2985 (1983)(concluding that if an unmarried father has custody and an established relationship with his child, a state may not deprive him of custody absent a finding of unfitness)) but distinguished the present case as one involving the procedural due process required to the father regardless of familial relationship. It noted concern that lack of notice may prevent the court from acquiring relevant and important information, which could create a substantial risk of the State wrongly depriving the unmarried father of a relationship with his child. The Supreme Court further noted that the burden on the State to notify the father is low compared to the parent’s rights. The Supreme Court concluded that “due process requires the State to provide notice and an opportunity to be heard to a child’s known adjudicated or biological father who is providing substantial and regular financial support for his child,” Id. at 546, but noted that this finding does not create an absolute right to custody. It finally noted that the statutes were not unconstitutional on their face, just as they were applied to Michael.