The opinion
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CONCLUSION
Baker’s motions for postconviction relief in these two cases
do not allege facts which constitute a denial of his constitu-
tional rights, and, as to certain allegations, the record refutes
his claims. Therefore, the district court did not err when it
denied Baker’s motion for postconviction relief in each case
without an evidentiary hearing.
Affirmed.
Michael E., individually and as Guardian and
next friend on behalf of his minor child,
Avalyn J., appellant, v. State of
Nebraska et al., appellees.
___ N.W.2d ___
Filed September 6, 2013. No. S-12-812.
1. Motions to Dismiss: Immunity: Appeal and Error. An appellate court reviews
de novo whether a party is entitled to dismissal of a claim based on federal or
state immunity, drawing all reasonable inferences for the nonmoving party.
2. Actions: Immunity. A suit against a state agency is a suit against the State and
is subject to sovereign immunity.
3. Actions: Public Officers and Employees: Immunity: Appeal and Error. In
reviewing actions against state officials, a court must determine whether an action
against individual officials sued in their official capacities is in reality an action
against the state and therefore barred by sovereign immunity.
4. Actions: Parties: Public Officers and Employees: Immunity: Waiver:
Damages. In an action for the recovery of money, the State is the real party in
interest. And sovereign immunity—if not waived—bars a claim for money even
if the plaintiff has named individual state officials as nominal defendants.
5. Actions: Public Officers and Employees: Immunity. To the extent a plaintiff
seeks to compel a state official to take actions that require the official to expend
public funds, state sovereign immunity bars the suit.
6. Constitutional Law: Immunity: Public Officers and Employees: Declaratory
Judgments: Injunction. In an action brought under 42 U.S.C. § 1983 (2006),
11th Amendment immunity does not bar an action against a state or state officials
for prospective declaratory or injunctive relief.
7. Public Officers and Employees: Immunity. State sovereign immunity does not
bar an action against state officials to restrain them from performing an affirma-
tive act or to compel them to perform an act they are legally required to do unless
the affirmative act would require the officials to expend public funds.
Nebraska Advance Sheets
MICHAEL E. v. STATE 533
Cite as 286 Neb. 532
8. Public Officers and Employees: Immunity: Liability. If a plaintiff has sued a
state official in the official’s individual capacity, a court must determine whether
qualified immunity shields the state official from civil damages.
9. ____: ____: ____. Qualified immunity shields state officials in their individual
capacities from civil damages if their conduct did not violate a clearly estab-
lished statutory or constitutional right of which a reasonable person would
have known.
10. Parental Rights. A parent’s right to maintain custody of his or her child is a
natural right, subject only to the paramount interest which the public has in pro-
tecting the rights of the child.
11. Constitutional Law: Parental Rights: Due Process. The fundamental liberty
interest of natural parents in the care, custody, and management of their child is
afforded due process protection.
12. Parental Rights. Even a parent’s natural right to the care and custody of a
child is limited by the State’s power to protect the health and safety of its resi-
dent children.
13. Juvenile Courts: Jurisdiction: Child Custody: Parental Rights. The State’s
protective umbrella begins when a juvenile court acquires jurisdiction at the adju-
dication phase based on the child’s present living conditions. The custodial rights
of parents normally arise at the dispositional phase.
14. Parental Rights: Minors: Due Process: Notice. Procedural due process requires
notice to the person whose rights are affected by an adjudication proceeding and
a reasonable opportunity to refute or defend against the allegations.
15. Child Custody: Parental Rights: Marriage: Adoption: Proof. When a child is
born or adopted during a marriage, a court may not properly deprive a biologi-
cal or adoptive parent of the custody of the minor child unless it is affirmatively
shown that such parent is unfit to perform the duties imposed by the relationship
or has forfeited that right.
16. Parent and Child. Parental rights do not spring full blown from the bio-
logical connection between parent and child. They require relationships more
enduring.
17. Parent and Child: Paternity: Proof. If an unmarried father has custody and
an established relationship with his child, a state may not deprive that father of
custody without showing that he is an unfit parent.
18. Constitutional Law: Paternity: Adoption: Proof. When an unmarried father
has established familial ties with his biological child and has provided support,
his relationship acquires substantial constitutional protection. Thus, the State may
not statutorily eliminate the need for his consent to an adoption.
19. Paternity: Parental Rights: Minors. Adjudicated fathers, as a class, can have
parental rights at stake in juvenile proceedings.
20. Due Process: Minors: Notice. In a juvenile proceeding alleging abuse, neglect,
or dependency, due process requires the State to provide notice and an opportu-
nity to be heard to a child’s known adjudicated or biological father who is provid-
ing substantial and regular financial support for his child.
21. Constitutional Law: Parent and Child: Child Support. The fact that an unmar-
ried, biological father has paid his child support obligations is insufficient to
Nebraska Advance Sheets
534 286 NEBRASKA REPORTS
create a fundamental liberty interest in a familial relationship that is entitled to
heightened constitutional protection.
22. Juvenile Courts: Parent and Child: Child Custody. Unless a known biological
father appears and shows a juvenile court that he has shouldered the responsi-
bilities of parenting, in addition to providing financial support, the court is not
required to determine that he is an unfit parent before it can place the child with
a third party. Nonetheless, consistent with a juvenile court’s broad discretion to
determine the placement of an adjudicated child that will serve the child’s best
interests, the court may consider placement with an unmarried, biological father
if removal from the child’s home is necessary.
23. Paternity: Notice. If the State shows that an unmarried, biological father’s
whereabouts are unknown and that he has not supported his child, then he is not
a parent entitled to notice and an opportunity to be heard in a juvenile proceeding
involving his child born out of wedlock.
24. ____: ____. Neb. Rev. Stat. §§ 43-263 and 43-265 (Reissue 2008) cannot be con-
stitutionally applied to avoid notifying a known adjudicated or biological father,
who has provided financial support to his child, of abuse, neglect, or dependency
proceedings involving his child. In that circumstance, the State must comply with
the notification procedures that are statutorily required for other noncustodial
parents—before the dispositional phase.
25. Public Officers and Employees: Immunity. Whether a state official should pre-
vail in a qualified immunity defense depends upon the objective reasonableness
of his or her conduct as measured by reference to clearly established law.
26. Constitutional Law: Courts: Statutes. Generally, a right cannot be clearly
established when the conduct complained of was authorized by statute and no
court had decided the issue when the conduct occurred.
27. Injunction: Damages. An injunction is an extraordinary remedy that a court
should ordinarily not grant except in a clear case where there is actual and sub-
stantial injury.
28. ____: ____. A court should not grant an injunction unless the right is clear, the
damage is irreparable, and the remedy at law is inadequate to prevent a failure
of justice.
Appeal from the District Court for Douglas County: Joseph
S. Troia, Judge. Affirmed in part, and in part reversed.
Amy Sherman, of Sherman & Gilner, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and John M. Baker, Special
Assistant Attorney General, for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Nebraska Advance Sheets
MICHAEL E. v. STATE 535
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Connolly, J.
SUMMARY
Michael E., individually and on behalf of his daughter,
Avalyn J., brought this civil rights action under 42 U.S.C.
§ 1983 (2006). The defendants are the State, the Department
of Health and Human Services (the Department), and six
of the Department’s employees. He alleged that because the
defendants failed to notify him of juvenile proceedings regard-
ing Avalyn, they interfered with his and Avalyn’s constitu-
tional rights to familial integrity, substantive due process,
and equal protection. Michael sued the employees in their
official and individual capacities. In addition, he claimed that
Neb. Rev. Stat. §§ 43-263 and 43-265 (Reissue 2008) were
unconstitutional.
The district court determined that §§ 43-263 and 43-265
were unconstitutional, facially and as applied to Michael. But
it concluded that sovereign immunity barred Michael’s action
against the State, the Department, and the employees in their
official capacities. It further determined that the employees, in
their individual capacities, were entitled to qualified immunity
because they were following unconstitutional statutes, which
had not previously been declared unconstitutional. The court
dismissed Michael’s request for injunctive relief to restrain the
State from unlawfully applying the notification statutes.
We will explain our holding with specificity in the following
pages, but briefly stated, it is this:
• o the extent that Michael sought monetary damages, the
T
court correctly determined that sovereign immunity barred
Michael’s claims against the State, the Department, and the
Department’s employees in their official capacities.
• n a juvenile proceeding alleging abuse, neglect, or depen-
I
dency, due process requires the State to provide notice and an
opportunity to be heard to a child’s known, financially sup-
portive adjudicated or biological father.
• he court correctly determined that qualified immunity
T
shielded the Department’s employees from liability in their
individual capacities because they did not violate a clearly
established right.
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536 286 NEBRASKA REPORTS
• he court correctly dismissed Michael’s claim for injunctive
T
relief. No reasonable probability existed that the State would
again fail to notify him of any future juvenile proceedings
after the court granted him shared custody of Avalyn.
BACKGROUND
History of Juvenile P roceedings
Avalyn was born out of wedlock in September 2002. Michael
and April J. are her biological parents. It is unknown from the
pleadings what Michael and April’s relationship was before or
after Avalyn’s birth. At an unspecified date, a court entered a
paternity and support decree in a “title IV-D” action. A title
IV-D action refers to the Department’s authorization to seek
a child support order when a party is receiving services under
title IV-D of the federal Social Security Act. The court found
that Michael was Avalyn’s biological father and ordered him to
pay child support but did not order visitation. That order is not
part of this record.
In 2005, the State took temporary emergency protective
custody of Avalyn on two separate occasions after April
attempted suicide. In September, the county attorney filed a
juvenile petition, seeking an adjudication under Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2008). The county attorney did not
give notice to Michael. After April admitted the allegations,
the juvenile court placed Avalyn in foster care with her mater-
nal grandmother. Because the grandmother agreed to live with
April, the court returned Avalyn to April’s home. The disposi-
tion order continued this arrangement. The court’s adjudication
order in September stated that the “‘father of child, Michael
[E.], to be notified of proceedings, if address is available.’”
But the caseworkers did not notify Michael before the disposi-
tion hearing. Michael, however, alleged that because he was
paying child support through the State, the caseworkers knew
or should have known how to contact him.
About 6 months after the disposition, on April 25, 2006,
Michael received a letter from the State Foster Care Review
Board notifying him of the proceedings. On May 8, he wrote
the juvenile court, which allowed Michael to intervene.
Nebraska Advance Sheets
MICHAEL E. v. STATE 537
Cite as 286 Neb. 532
After notifying Michael in April 2006, the Department pro-
vided services to him to determine whether Avalyn’s placement
with him and his wife would be in Avalyn’s best interests. In
October 2006, the court placed Avalyn with Michael and his
wife. Later, the State provided mediation services for Michael
and April to resolve their custody and visitation disputes.
The court continued Avalyn’s placement with Michael through
November 2007, when the parties stipulated that Avalyn should
be placed with April but divide her time evenly between April
and Michael.
The defendants alleged that before April 2006, when Michael
learned of the juvenile proceedings, he had not tried to estab-
lish a relationship with Avalyn or he had acquiesced in April’s
request that he not do so. They alleged that his only contact
with Avalyn “consisted of some birthday and Christmas gifts
and court-ordered child support automatically withheld from
his paycheck when he was working.”
P rocedural History of
Civil Rights Action
In Michael’s § 1983 action, he alleged separate “causes of
action.” Under three of these headings, he alleged that the
defendants interfered with his constitutional right to familial
integrity by failing to notify him of Avalyn’s status as a ward
of the State. He also alleged that the defendants violated his
right to equal protection of the law by providing services to
April but not to him. He sought a declaration that the State had
violated his constitutional rights. For these claims, he sought
monetary damages and attorney fees. The six employees whom
he sued are the three caseworkers who were assigned to
Avalyn’s juvenile case at different times and their immedi-
ate supervisors.
Michael also claimed that §§ 43-263 and 43-265 were
unconstitutional to the extent that they permitted the State to
avoid notifying a noncustodial parent of juvenile proceedings
involving the parent’s child. He sought a temporary and per-
manent injunction to prohibit the unlawful application of these
statutes for himself and for all others similarly situated.
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538 286 NEBRASKA REPORTS
The defendants moved to dismiss Michael’s action in its
entirety. They alleged that the court lacked subject matter juris-
diction and that Michael had failed to state a claim that entitled
him to relief.
The court concluded that the State had not waived its sov-
ereign immunity and that Michael had not alleged that the
caseworkers took a deliberate course of conduct not to notify
him. It further concluded that Michael’s pleadings did not
show he had an established relationship with Avalyn. The court
reasoned that even if Michael had been notified and appeared,
his allegations did not show that the juvenile court would have
placed Avalyn in his custody. Because the State had not waived
its sovereign immunity, the court dismissed Michael’s claims
seeking monetary damages and a declaration that the defend
ants had violated his constitutional rights.
Later, however, the court ruled that Michael had alleged suf-
ficient facts to state a claim that §§ 43-263 and 43-265 were
unconstitutional. It concluded that the juvenile court had found
Michael was a fit parent for custody and that he therefore had a
due process right to notice of the proceedings. The court found
that because of the paternity decree, the Department knew
Michael was Avalyn’s father and knew his address. It found
that this knowledge was illustrated by the Department’s notice
to Michael in April 2006.
Although the Department had technically complied with
the statutes, the court concluded that §§ 43-263 and 43-265
were unconstitutional, facially and as applied. It reasoned
that the statutes cannot constitutionally eliminate notifica-
tion of juvenile proceedings to a noncustodial parent. But
because the State had not waived its sovereign immunity,
the court dismissed Michael’s requests for temporary and
permanent injunctions to restrain the State from unlawfully
applying these statutes against him and all other similarly
situated parents.
Michael then moved for summary judgment, which motion
the court overruled. It concluded that the Department’s
employees were entitled to sovereign immunity in their official
capacities. It further found that in their individual capacities,
qualified immunity shielded them because their conduct was
Nebraska Advance Sheets
MICHAEL E. v. STATE 539
Cite as 286 Neb. 532
merely negligent in following the statutes, which had not been
declared unconstitutional. Later, the court issued an order dis-
missing Michael’s action.
ASSIGNMENTS OF ERROR
Michael assigns, restated and renumbered, that the court
erred in (1) determining that the defendants were immune from
liability; (2) failing to determine that an exception to immunity
applied; (3) determining that he did not allege a violation of
any constitutionally protected right; (4) dismissing the State
and the Department from his claims regarding the constitution-
ality of §§ 43-263 and 43-265; (5) failing to sustain his motion
for summary judgment on these two causes of action; (6) fail-
ing to issue an injunction; (7) failing to issue a judgment for
him on his claims that §§ 43-263 and 43-265 were unconstitu-
tional; and (8) dismissing his action.
STANDARD OF REVIEW
[1] We review de novo whether a party is entitled to dis-
missal of a claim based on federal or state immunity, drawing
all reasonable inferences for the nonmoving party.1
ANALYSIS
Michael contends that the State unlawfully interfered with
his and Avalyn’s fundamental right to each other’s companion-
ship and his fundamental right to the custody and control of
his child. He argues that the state employees, whom he sued in
their official and individual capacities, are not entitled to quali-
fied immunity because they knew or should have known that
their actions violated a clearly established constitutional right
to familial integrity.
Additionally, Michael contends that sovereign immunity does
not bar his claim against the State and the Department because
(1) a plaintiff can sue local governments for constitutional
1
See, Findlay v. Lendermon, No. 12-3881, 2013 WL 2992392 (7th Cir.
June 14, 2013); Bailey v. Pataki, 708 F.3d 391 (2d Cir. 2013); Peterson
v. Martinez, 707 F.3d 1197 (10th Cir. 2013); South Carolina Wildlife
Federation v. Limehouse, 549 F.3d 324 (4th Cir. 2008); Holz v. Nenana
City Public School Dist., 347 F.3d 1176 (9th Cir. 2003); McKinney v.
Okoye, 282 Neb. 880, 806 N.W.2d 571 (2011).
Nebraska Advance Sheets
540 286 NEBRASKA REPORTS
deprivations caused by their employees’ widespread, persist
ent pattern of unconstitutional misconduct and (2) sovereign
immunity does not bar a claim for prospective declaratory or
injunctive relief.
The State, of course, views the matter differently. It contends
that the State of Nebraska, its agencies, and its officials—sued
in their official capacities—are immune from suit under 42
U.S.C. § 1983. It argues that sovereign immunity bars such
suits and that the State has not waived its immunity.
Regarding Michael’s claims against the employees in their
individual capacities, the State contends that qualified immu-
nity shields them from liability. The State argues that they
are immune because Michael has not alleged that any state
employee purposefully, willfully, or deliberately failed to notify
him of the juvenile court proceedings involving Avalyn. The
State contends that the caseworkers’ conduct did not consti-
tute a civil rights violation because when they failed to notify
Michael, they reasonably believed that they were following
constitutional statutes.
Sovereign Immunity P rinciples
[2-5] Because Michael’s claims fall under 42 U.S.C. § 1983,
we follow federal precedent.2 Contrary to Michael’s argument,
his action is not against a local government. A suit against a
state agency is a suit against the State and is subject to sov-
ereign immunity.3 In reviewing actions against state officials,
a court must determine whether an action against individual
officials sued in their official capacities is in reality an action
against the state and therefore barred by sovereign immunity.4
In an action for the recovery of money, the State is the real
party in interest. And sovereign immunity—if not waived—
bars a claim for money even if the plaintiff has named indi-
vidual state officials as nominal defendants.5 In addition, to the
extent a plaintiff seeks to compel a state official to take actions
2
See, e.g., Cole v. Isherwood, 271 Neb. 684, 716 N.W.2d 36 (2006).
3
See Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010).
4
Id.
5
See id.
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that require the official to expend public funds, state sovereign
immunity bars the suit.6
[6,7] But in an action brought under 42 U.S.C. § 1983, 11th
Amendment immunity does not bar an action against a state or
state officials for prospective declaratory or injunctive relief.7
Similarly, state sovereign immunity does not bar an action
against state officials to restrain them from performing an
affirmative act or to compel them to perform an act they are
legally required to do unless the affirmative act would require
the officials to expend public funds.8
[8,9] But if a plaintiff has sued a state official in the offi-
cial’s individual capacity, a court must determine whether qual-
ified immunity shields the state official from civil damages.
Qualified immunity shields state officials in their individual
capacities from civil damages if their conduct did not violate a
clearly established statutory or constitutional right of which a
reasonable person would have known.9
Applying these principles, we agree with the State that
sovereign immunity bars Michael’s claims—to the extent
that Michael seeks monetary damages—against the State, the
Department, and its employees in their official capacities. But
Michael also sought a declaration that the State had violated
his constitutional rights by failing to give him notice and an
opportunity to be heard in the juvenile proceedings. And he
sought an injunction to restrain state officials from failing to
notify him in the future. Sovereign immunity did not bar those
claims against state officials, and the court erred in dismissing
them from the suit on Michael’s declaratory and injunctive
relief claims. We now turn to the merits of Michael’s claims
that §§ 43-263 and 43-265 are unconstitutional to the extent
6
See, id.; Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010).
7
See, Frew v. Hawkins, 540 U.S. 431, 124 S. Ct. 899, 157 L. Ed. 2d 855
(2004); Doe, supra note 3.
8
See, Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379,
810 N.W.2d 149 (2012); Doe, supra note 3.
9
See, Ashby, supra note 6; Shearer v. Leuenberger, 256 Neb. 566, 591
N.W.2d 752 (1999), disapproved on other grounds, Simon v. City of
Omaha, 267 Neb. 718, 677 N.W.2d 129 (2004).
Nebraska Advance Sheets
542 286 NEBRASKA REPORTS
they permitted the State to avoid notifying him of the juvenile
proceedings and that he was entitled to injunctive relief to pro-
hibit this unlawful application in the future.
Due P rocess R equired
Notice to Michael
[10,11] A parent’s right to maintain custody of his or her
child is a natural right, subject only to the paramount inter-
est which the public has in protecting the rights of the child.10
The fundamental liberty interest of natural parents in the care,
custody, and management of their child is afforded due proc
ess protection.11
[12,13] Yet, even a parent’s natural right to the care and
custody of a child is limited by the State’s power to protect the
health and safety of its resident children.12 The State’s protec-
tive umbrella begins when a juvenile court acquires jurisdiction
at the adjudication phase based on the child’s present living
conditions. The custodial rights of parents normally arise at the
dispositional phase.13
[14] This does not mean, however, that a parent is with-
out rights at the adjudication phase. Procedural due process
requires notice to the person whose rights are affected by an
adjudication proceeding and a reasonable opportunity to refute
or defend against the allegations.14 And the Nebraska Court of
Appeals has extended the right to notice of an adjudication pro-
ceeding to a noncustodial parent.15 “If a parent is not accorded
10
In re Interest of Mainor T. & Estela T., 267 Neb. 232, 674 N.W.2d 442
(2004).
11
Id.
12
See Cornhusker Christian Ch. Home v. Dept. of Soc. Servs., 227 Neb. 94,
416 N.W.2d 551 (1987).
13
See, In re Interest of Devin W. et al., 270 Neb. 640, 707 N.W.2d 758
(2005); In re Interest of Amber G. et al., 250 Neb. 973, 554 N.W.2d 142
(1996).
14
See In re Interest of Mainor T. & Estela T., supra note 10.
15
See In re Interest of B.J.M. et al., 1 Neb. App. 851, 510 N.W.2d 418
(1993) (citing In re Interest of L. V., 240 Neb. 404, 482 N.W.2d 250
(1992)). See, also, Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71
L. Ed. 2d 599 (1982).
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Cite as 286 Neb. 532
his or her due process rights, the parent can readily appear and
ask the court to terminate jurisdiction upon a showing that the
child is no longer in need of protection.”16
[15] These rules clearly apply when a child is born or
adopted during a marriage. “A court may not properly deprive
a biological or adoptive parent of the custody of the minor
child unless it is affirmatively shown that such parent is unfit
to perform the duties imposed by the relationship or has for-
feited that right . . . .”17 When a juvenile court does not return
an adjudicated child to his or her custodial parent at the dis-
positional stage, it must consider placement with the child’s
noncustodial parent before placing the child with an unrelated
third party.18
But in those cases, the court was dealing with children
who were born during the noncustodial parent’s marriage,
even though the parents were separated or divorced when
the State filed a juvenile petition. We have not previously
decided in a juvenile case whether an unmarried, biological
father should have an opportunity to participate in juvenile
proceedings. U.S. Supreme Court precedent guides us in that
determination.
[16] “‘Parental rights do not spring full-blown from the bio-
logical connection between parent and child. They require rela-
tionships more enduring.’”19 In cases dealing with an unmar-
ried father’s right to object to an adoption, the U.S. Supreme
Court has drawn a demarcation between “a mere biological
parent” and “a natural father who has played a substantial role
in rearing his child”20:
16
In re Interest of Amanda H., 4 Neb. App. 293, 302, 542 N.W.2d 79, 86
(1996).
17
In re Interest of Amber G. et al., supra note 13, 250 Neb. at 982, 554
N.W.2d at 149.
18
See id.
19
Lehr v. Robertson, 463 U.S. 248, 260, 103 S. Ct. 2985, 77 L. Ed. 2d 614
(1983) (emphasis in original) (quoting Caban v. Mohammed, 441 U.S.
380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979)).
20
Id., 463 U.S. at 262 n.18. Accord In re Adoption of Corbin J., 278 Neb.
1057, 775 N.W.2d 404 (2009).
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544 286 NEBRASKA REPORTS
When an unwed father demonstrates a full commitment to
the responsibilities of parenthood by “com[ing] forward
to participate in the rearing of his child,” . . . his interest
in personal contact with his child acquires substantial pro-
tection under the Due Process Clause. At that point it may
be said that he “act[s] as a father toward his children.” . . .
But the mere existence of a biological link does not merit
equivalent constitutional protection. The actions of judges
neither create nor sever genetic bonds. “[T]he importance
of the familial relationship, to the individuals involved
and to the society, stems from the emotional attach-
ments that derive from the intimacy of daily association,
and from the role it plays in ‘promot[ing] a way of life’
through the instruction of children . . . as well as from the
fact of blood relationship.” . . .
The significance of the biological connection is that it
offers the natural father an opportunity that no other male
possesses to develop a relationship with his offspring.
If he grasps that opportunity and accepts some measure
of responsibility for the child’s future, he may enjoy
the blessings of the parent-child relationship and make
uniquely valuable contributions to the child’s develop-
ment. If he fails to do so, the Federal Constitution will
not automatically compel a State to listen to his opinion
of where the child’s best interests lie.21
[17,18] Under these principles, the Supreme Court has held
that if an unmarried father has custody and an established
relationship with his child, a state may not deprive that father
of custody without showing that he is an unfit parent.22 And
we have held that when an unmarried father has established
familial ties with his biological child and has provided support,
his relationship acquires substantial constitutional protection.
Thus, the State may not statutorily eliminate the need for his
consent to an adoption.23
21
Id., 463 U.S. at 261-62.
22
See Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551
(1972).
23
In re Adoption of Corbin J., supra note 20.
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But the State argues that because Michael’s allegations
failed to show an established familial relationship, he did not
allege a violation of his right to familial integrity. As stated,
the pleadings do not discuss Michael and April’s relationship
before or after Avalyn’s birth. But Michael’s declaratory judg-
ment claim presents a procedural due process question that
exists even if he did not have a familial relationship with his
child. We must decide what process is due to an adjudicated
father in an abuse, neglect, or dependency proceeding when
the State’s officials know only that a noncustodial adjudicated
father exists and that he has provided regular and substantial
financial support to his child.
[19] First, we point out the obvious. Michael is not a puta-
tive father; he is Avalyn’s adjudicated father. And we have
held that Nebraska’s adoption statutes eliminating the need
for a putative father’s consent to an adoption when he has not
registered in the State’s putative father registry do not apply to
an adjudicated father.24 We have also held that depending on
the circumstances, unmarried, biological fathers may obtain
custody or visitation rights with their children.25 So adjudicated
fathers, as a class, can have parental rights at stake in juve-
nile proceedings.
These potential rights raise a concern that unless an adju-
dicated or biological father has an opportunity to be heard, a
juvenile court may lack crucial information for determining
the constitutional protection afforded to the father’s interests.
For example, the court may not know whether the father has
acknowledged paternity of his child and provided regular and
substantial financial support, lived with the child before sepa-
rating from the mother, shouldered parental responsibilities,
had significant visitation with the child, or been hindered in his
efforts to have contacts with his child.
24
See In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).
25
See, State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1,
679 N.W.2d 749 (2004); White v. Mertens, 225 Neb. 241, 404 N.W.2d 410
(1987); State ex rel. Laughlin v. Hugelman, 219 Neb. 254, 361 N.W.2d 581
(1985).
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546 286 NEBRASKA REPORTS
This lack of information creates a substantial risk that
the State will erroneously deprive an unmarried father of a
protected liberty interest in a relationship with his child.26
Conversely, the burden on the State to notify a known adjudi-
cated or biological father is low when compared to the parental
rights potentially at stake.27
[20,21] So we conclude that in a juvenile proceeding alleg-
ing abuse, neglect, or dependency, 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 provid-
ing substantial and regular financial support for his child. But
we reject the argument that unless the State shows that an
unmarried, noncustodial father is an unfit parent, a juvenile
court must always place his biological child in his custody
before considering custody with an unrelated third party.
The mere opportunity to present facts relevant to the father’s
relationship with the child and his fitness for custody does
not create a right to custody. And the fact that an unmar-
ried, biological father has paid his child support obligations
is insufficient to create a fundamental liberty interest in a
familial relationship that is entitled to heightened constitu-
tional protection.
For example, in Quilloin v. Walcott,28 the Supreme Court
held that a state court did not violate an unmarried father’s due
process rights by determining that a stepfather’s adoption of
his children was in their best interests. The unmarried father
did not legally establish his paternity of the children for an
11-year period before the adoption petition was filed. So due
process did not require the court to find that the biological
father was an unfit parent before approving the adoption. And
the biological father’s occasional visits and support obligations
did not affect the result:
Although appellant was subject, for the years prior to
these proceedings, to essentially the same child-support
obligation as a married father would have had, . . . he has
26
See, e.g., State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).
27
See Chase v. Neth, 269 Neb. 882, 697 N.W.2d 675 (2005).
28
Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978).
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MICHAEL E. v. STATE 547
Cite as 286 Neb. 532
never exercised actual or legal custody over his child, and
thus has never shouldered any significant responsibility
with respect to the daily supervision, education, protec-
tion, or care of the child.29
[22] Unless a known biological father appears and shows
a juvenile court that he has shouldered the responsibilities of
parenting, in addition to providing financial support, the court
is not required to determine that he is an unfit parent before
it can place the child with a third party. Nonetheless, consist
ent with a juvenile court’s broad discretion to determine the
placement of an adjudicated child that will serve the child’s
best interests,30 the court may consider placement with an
unmarried, biological father if removal from the child’s home
is necessary.
[23] But we disagree with the district court that §§ 43-263
and 43-265 are facially unconstitutional. If the State shows that
an unmarried, biological father’s whereabouts are unknown
and that he has not supported his child, then he is not a parent
entitled to notice and an opportunity to be heard in a juvenile
proceeding involving his child born out of wedlock.
[24] We agree with the court, however, that §§ 43-263 and
43-265 cannot be constitutionally applied to avoid notifying
a known adjudicated or biological father, who has provided
regular and substantial financial support to his child, of abuse,
neglect, or dependency proceedings involving his child. In
that circumstance, the State must comply with the notification
procedures that are statutorily required for other noncustodial
parents—before the dispositional phase. But we emphasize
that due process is satisfied by notice and an opportunity to
be heard. If an unmarried, biological father does not grasp that
opportunity and show a familial relationship, the court need not
delay acting in the child’s best interests.
Despite our conclusion that due process required the State
to give Michael notice and an opportunity to be heard, the
State argues that the Department’s employees are immune from
Michael’s claim for monetary damages.
29
Id., 434 U.S. at 256.
30
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
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548 286 NEBRASKA REPORTS
Michael’s Right to Notice and
Opportunity to Be Heard Was
Not Clearly Established
Because we conclude that the State’s procedures did not
comply with due process, we consider whether qualified immu-
nity shielded the Department’s employees, in their individual
capacities, from civil damages.
[25] Whether a state official should prevail in a qualified
immunity defense depends upon the objective reasonableness
of his or her conduct as measured by reference to clearly estab-
lished law.31
The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is
doing violates that right. This is not to say that an official
action is protected by qualified immunity unless the very
action in question has previously been held unlawful, . . .
but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.32
[26] As the district court concluded, §§ 43-263 and 43-265
require the State to give notice only to the custodial parent.
And before this case, the Court of Appeals had judicially
extended the notification requirement, on due process grounds,
to a noncustodial parent only when the child was born during
the parents’ marriage. Nebraska courts had not decided whether
an adjudicated father with no previous custody rights arising
from a marital relationship was entitled to notice. Generally,
a right cannot be clearly established when the conduct com-
plained of was authorized by statute and no court had decided
the issue when the conduct occurred.33
But Michael claims the Department did not follow its own
regulations. He cites the Department’s regulations requiring
caseworkers to make reasonable efforts to notify a noncusto-
dial parent when a child has been placed in an out-of-home
31
See Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007).
32
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d
523 (1987) (citation omitted).
33
See Shearer, supra note 9 (Connolly, J., concurring; Miller-Lerman, J.,
joins) (citing Duncan v. Gunter, 15 F.3d 989 (10th Cir. 1994)).
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MICHAEL E. v. STATE 549
Cite as 286 Neb. 532
setting.34 Additionally, if the Department determines that inter-
vention is necessary, a caseworker must forward to the county
attorney the names of each family member residing in the
home and the name and address of any absent biological or
legal parent.35
The juvenile court, however, did not place Avalyn in an
out-of-home setting. The court placed her with her maternal
grandmother, who agreed to live with April and Avalyn at
their home. Michael did not include the county attorney as
a party to this action, so his suggestion that the casework-
ers did not provide his information to the county attorney
is speculative.
But under the regulations, the requirement of notice to a
noncustodial parent clearly hinged upon an out-of-home place-
ment. And we do not read these regulations as putting tempo-
rary, emergency custody of a child on the same footing as an
out-of-home placement. Even if that were true, the casework-
ers’ failure to interpret the regulations in that manner would
be at most negligent conduct, not a constitutional violation.36
The district court correctly determined that the Department
employees’ qualified immunity defense shielded them from
liability for civil damages.
Michael Was Not Entitled
to I njunctive R elief
Michael argues that he was entitled to an injunction to
enjoin the State and its officers from applying §§ 42-263 and
42-265 to avoid notifying him or other noncustodial biological
fathers of juvenile proceedings involving their children. But
we agree with the State that an injunction is inappropriate in
this case.
[27,28] An injunction is an extraordinary remedy that a
court should ordinarily not grant except in a clear case where
there is an actual and substantial injury.37 And a court should
34
See 390 Neb. Admin. Code, ch. 7, § 001.04 (1998).
35
See 390 Neb. Admin. Code, ch. 8, § 001.05 (2000).
36
See Ashby, supra note 6.
37
Bock v. Dalbey, 283 Neb. 994, 815 N.W.2d 530 (2012).
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550 286 NEBRASKA REPORTS
not grant an injunction unless the right is clear, the damage is
irreparable, and the remedy at law is inadequate to prevent a
failure of justice.38
Michael now has shared custody of Avalyn, and he limited
his claim for injunctive relief to the unlawful application of the
statutes to a noncustodial biological father. He is no longer a
noncustodial biological father. So he is no longer in any danger
of injury, and this is not a class action filed on behalf of other
noncustodial biological fathers. The court did not err in deny-
ing injunctive relief.
CONCLUSION
We conclude that the district court correctly determined that
sovereign immunity barred Michael’s claims against the State,
the Department, and its employees in their official capacities,
to the extent that Michael seeks monetary damages. But sov-
ereign immunity did not bar Michael’s claims for declaratory
and injunctive relief, and the court erred in dismissing state
officials from the suit regarding those claims.
We reverse the court’s determination that §§ 43-263 and
43-265 are facially unconstitutional. But we conclude that in
a juvenile proceeding alleging abuse, neglect, or dependency,
due process requires the State to provide notice and an oppor-
tunity to be heard to a child’s known adjudicated or biologi-
cal father who is providing substantial and regular financial
support for his child. Sections 43-263 and 43-265 cannot be
constitutionally applied to avoid this notification.
We conclude that Michael was not entitled to injunctive
relief to enjoin the State and its officers from unlawfully apply-
ing §§ 43-263 and 43-265 to avoid notifying him of any future
juvenile proceedings. And we conclude that the state employ-
ees who failed to notify Michael of the juvenile proceedings
involving Avalyn are shielded from liability for civil damages
because Michael’s right to notification was not clearly estab-
lished when their conduct occurred.
Affirmed in part, and in part reversed.
38
Id.