In re Interest of Fedalina G.

SUMMARY: A timely appeal of an order terminating parental rights may be allowed to proceed in forma pauperis when the motion is accompanied by a poverty affidavit that has been” properly made and authenticated, out of state before a person authorized to administer oaths in the place where the affidavit [was] made.” 

The father filed a timely appeal to an order terminating his parental rights.  The father also filed a “motion to proceed in forma pauperis in the trial court” and accompanied his motion with a poverty affidavit.  The poverty affidavit was “sworn and signed by the appellant in Salt Lake County, Utah and notarized by a notary public commissioned by the State of Utah.”  The appellant was a resident of Utah at the time the poverty affidavit was executed and appellant also “filed an affidavit from the notary public who had authenticated his poverty affidavit” stating that the appellant had appeared before the notary public in person, swore the information was true under oath, and signed the affidavit.  Evidence was also offered that the notary public has been duly commissioned by Utah at the time the poverty affidavit was signed.
The Court of Appeals, on its own motion, ordered the appellant to show cause.  After reviewing the information provided by appellant in response to that order the Court of Appeals dismissed the parent’s appeal of the termination order.  The Nebraska Supreme Court reversed, stating that Neb. Rev. Stat. § 25-1245 and Rule 28(b), taken together, “provide that an affidavit may be used in support of a motion in a court of this state if the affidavit is made and authenticated, out of state, before a person authorized to administer oaths in a place where the affidavit is made.”  The Court distinguished prior precedent, because the earlier case involved a notary administering the oath outside of the jurisdiction in which his or her commission was issued.  In this case, however, the notary administered the oath within the jurisdiction where she was commissioned.  The case was remanded to the Court of Appeals for further proceedings.