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In re Adoption of Madysen S.

Supreme Court of Nebraska

May 27, 2016


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          Petition for further review from the Court of Appeals, IRWIN, INBODY, and RIEDMANN, Judges, on appeal thereto from the County Court for Lincoln County, MICHAEL E. PICCOLO, Judge.

         Todd M. Jeffers, of Brouillette, Dugan & Troshynski, P.C., L.L.O., for appellant.

         Angela M. Franz and Patrick M. Heng, of Waite, McWha & Heng, for appellees.



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          [293 Neb. 648] Wright, J.


         This is an appeal from an interlocutory order of the county court in a stepparent adoption proceedings finding that the natural father abandoned his children and therefore his consent to the adoption would not be required. We find that the order appealed from is not a final order, and the Nebraska Court of Appeals and this court lack jurisdiction over the appeal.


         Nicole K. and Jeremy S. were married, and three children were born of the marriage. Madysen S. was born in February [293 Neb. 649] 2001, Orion S. was born in January 2004, and Leo S. was born in November 2005. The family lived in Missouri.

         In 2007, Madysen, who was then 6 years old, reported that Jeremy had been sexually abusing her for more than a year. Jeremy was arrested and charged with first degree statutory sodomy--deviate sexual intercourse with a person less than 14 years old and four counts of first degree child molestation.

         Nicole moved with the children to Nebraska and filed for divorce. The decree of dissolution was entered in July 2007.

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The decree granted sole custody of the children to Nicole and stated that Jeremy " shall not have any parenting time." The court ordered Jeremy to pay $50 per month in child support.

         In August 2009, pursuant to a plea agreement, Jeremy was convicted of three counts of child molestation. He was committed to a total term of 16 years' confinement in Missouri.

         Nicole married William K. in 2013. In 2014, Nicole and William simultaneously filed in the county court for Lincoln County, the county where the children reside, a petition for adoption by a stepparent and a " Petition to Terminate Parental Rights" for each child. The petitions asked that the court approve the adoption of the children by William. Jeremy opposed the adoptions. He refused to voluntarily relinquish his parental rights and consent to the adoptions. The petitions asked the court to find that Jeremy had abandoned the children, as provided under Neb. Rev. Stat. § 43-104 (Reissue 2008), such that Jeremy's consent to the adoptions would not be required.

         A hearing was held on the consolidated " Petition[s] to Terminate Parental Rights." Nicole testified that she allowed the children to visit their extended family on Jeremy's side, but asked Jeremy's family not to allow any contact between the children and Jeremy. Jeremy indicated that he had not seen the children since he was arrested, approximately 7 years prior to the filing of the petitions. While incarcerated, he sent the children cards and letters. He also occasionally listened over the telephone to the children talk to his family members when [293 Neb. 650] they visited them. Jeremy consistently paid the $50 per month in child support ordered in the dissolution decree. The child support was paid by Jeremy's mother.

         The county court issued an order on the consolidated " Petition[s] to Terminate Parental Rights." However, the court acknowledged that in adoption proceedings, it is the adoption itself which terminates the parental rights, and that until the adoption is granted, the parental rights are not terminated.[1] And a " Petition to Terminate Parental Rights," as such, is not a pleading provided for in the adoption statutes.

         The county court's order found that Jeremy had abandoned his children for purposes of § 43-104. Accordingly, the court ordered that Jeremy's consent would not be required for the adoptions and that the guardian ad litem could provide all substitute consents as may be required by statute. The hearing on the adoptions was scheduled and is still pending.

         In finding that Jeremy abandoned his children, the court stated that Jeremy was " unavailable to parent his children." The court noted that this unavailability was due to incarceration stemming from " his depraved choice to sexually molest his own daughter multiple times over the course of several months." The court also reasoned that Jeremy abandoned his children by virtue of the " negligible and supervised contact" with his children for the past 7 years. Jeremy had not acted as a " significant parental figure" for his children for most of their lives.

         Jeremy appealed from the order finding that he abandoned his children and that his consent to the stepparent adoptions was not required. The Court of Appeals reversed.[2] The Court of Appeals explained that the only issue was whether Jeremy abandoned the children; i.e.,

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whether he had acted in a manner evidencing a settled purpose to be rid of all parental obligations and to forgo all parental rights.

          [293 Neb. 651] The Court of Appeals concluded that the record did not support a finding upon clear and convincing evidence that Jeremy had abandoned his children. It noted that although Jeremy was incarcerated, he had continually paid his child support obligation, had sent letters and cards to the children, and had adamantly refused to relinquish his parental rights.

         We granted Nicole and William's petition for further review.


         Nicole and William assign on further review that the Court of Appeals erred in determining that there was insufficient evidence to support the county court's finding of abandonment.

         STANDARD ...

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