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Jeremiah J. v. Dakota D.

Supreme Court of Nebraska

March 7, 2014

Jeremiah J., appellee,
v.
Dakota D., appellant

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[Copyrighted Material Omitted]

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Appeal from the County Court for Hall County: PHILIP M. MARTIN, JR., Judge.

Affirmed.

Marvin L. Andersen, of Bradley, Elsbernd, Andersen, Kneale & Mues Jankovitz, P.C., for appellant.

Mark Porto, of Shamberg, Wolf, McDermott & Depue, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

1. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

2. Adoption: Appeal and Error. Appeals in adoption proceedings are reviewed by an appellate court for error appearing on the record.

[287 Neb. 618] 3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

4. Evidence: Appeal and Error. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give great weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

5. Constitutional Law: Parental Rights. The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental

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liberty interests recognized by the U.S. Supreme Court.

6. Parental Rights: Adoption. The foundation of Nebraska's adoption statutes is the consent of a biological parent to the termination of his or her parental rights.

7. Parental Rights: Paternity: Adoption. In order to terminate a father's rights through an adoption procedure, the consent of the adjudicated father of a child born out of wedlock is required for the adoption to proceed unless the Nebraska court having jurisdiction over the custody of the child determines otherwise, pursuant to Neb.Rev.Stat. § 43-104.22 (Reissue 2008).

8. Parental Rights: Paternity: Proof. Because Neb.Rev.Stat. § 43-104.22 (Reissue 2008) can effectively terminate the parental rights of a father, the exceptions under § 43-104.22 must be proved by clear and convincing evidence.

9. Abandonment: Words and Phrases. Willful abandonment has been defined as a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duty of a parent; or, second, an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love and his protection, maintenance, and the opportunity for the display of filial affection.

10. Abandonment: Intent. The question of abandonment is largely one of intent to be determined in each case from all the facts and circumstances.

11. Abandonment: Intent: Evidence. Evidence of a parent's conduct is relevant to a determination of whether the purpose and intent of that parent was to abandon the child.

12. Adoption: Abandonment: Proof. The issue of abandonment in an adoption proceeding must be established by clear and convincing evidence.

13. Parental Rights: Words and Phrases. Parental unfitness in the context of termination of parental rights cases is a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which caused, or probably will result in, detriment to a child's well-being.

14. Parental Rights: Proof. Parental unfitness in the context of termination of parental rights cases must be proved by clear and convincing evidence.

McCormack, J.

[287 Neb. 619] NATURE OF CASE

This appeal asks us to determine whether Jeremiah J.'s consent is required before Dakota D. can place their minor child, born out of wedlock, up for adoption. Upon remand from the first appeal presented to this court [1] and after a subsequent bench ...


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