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In re Adoption of Jaelyn B.

Supreme Court of Nebraska

June 24, 2016

In re Adoption of Jaelyn B., a minor child. Jesse B., appellant,
Tylee H., appellee.

         1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual dispute presents a question of law.

         2. Statutes. The meaning and interpretation of a statute present questions of law. 3. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusions.

         4. Jurisdiction: Appeal and Error. Before deciding the merits of an appeal, an appellate court must determine if it has jurisdiction.

         5. __:__. If the court from which a party appeals lacked jurisdiction, then the appellate court acquires no jurisdiction.

         6. __:__. An appellate court has the power to determine whether it has jurisdiction over an appeal and to correct jurisdictional issues even if it does not have jurisdiction to reach the merits.

         7. Constitutional Law: Courts: Jurisdiction: Child Custody: Habeas Corpus: Adoption: Declaratory Judgments. District courts have inherent equity jurisdiction to resolve custody disputes. And they have jurisdiction over habeas proceedings challenging adoption proceedings. Accordingly, district courts have jurisdiction over a related declaratory judgment action challenging the constitutionality of Nebraska adoption statutes.

         8. Foreign Judgments: Jurisdiction: States. A judgment rendered in a sister state court which had jurisdiction is to be given full faith and credit and has the same validity and effect in Nebraska as in the state rendering judgment.

         9. Constitutional Law: States: Statutes: Public Policy. Nebraska is not constitutionally required to give effect to a sister state's statutes that are contrary to the public policy of this state.

         [293 Neb. 918] 10. Paternity: Child Custody: Time. In Nebraska, a paternity acknowledgment operates as a legal finding of paternity after the rescission period has expired. And a father whose paternity is established by a final, voluntary acknowledgment has the same right to seek custody as the child's biological mother, even if genetic testing shows he is not the biological father.

         11. Paternity. Under Neb. Rev. Stat. § 43-1402 (Reissue 2008), establishment of paternity by acknowledgment is the equivalent of establishment of paternity by a judicial proceeding.

         12. Constitutional Law: Foreign Judgments: States. The Full Faith and Credit Clause requires states to give the same effect to a judgment in the forum state that it has in the state where the court rendered the judgment.

         13. Constitutional Law: Foreign Judgments: States: Paternity. Neb. Rev. Stat. § 43-1406(1) (Reissue 2008) extends the full faith and credit requirement for judgments to a sister state's paternity determination established through a voluntary acknowledgment.

         14. Foreign Judgments: States: Paternity: Adoption. Whether a paternity acknowledgment in a sister state gives an acknowledged father the right to block an adoption in Nebraska depends upon whether the acknowledgment confers that right in the state where it was made.

         15. Interventions. Under Neb. Rev. Stat. § 25-328 (Reissue 2008), to be entitled to intervene in an action, an intervenor must have a direct and legal interest. The intervenor must lose or gain by the direct operation and legal effect of the judgment that may be rendered in the action.

         16. Foreign Judgments: States: Paternity: Adoption: Parental Rights. When the law of a sister state legally determines that an acknowledged father has the full rights of a natural father who can withhold consent to an adoption, that father is not a "man" within the meaning of Neb. Rev. Stat. § 43-104.22(11) (Reissue 2008).

         17. Judgments: Collateral Attack: Paternity. The collateral attack rules that apply to a judgment also apply to a voluntary acknowledgment of paternity that has the same effect as a judgment.

         18. Constitutional Law: Appeal and Error. An appellate court will generally not decide a constitutional issue that was not presented to the trial court.

         Appeals from the County Court for Douglas County: Marcena M. Hendrix, Judge.

          George T. Babcock, of Law Offices of Evelyn N. Babcock. and Jennifer Gaughan, of Legal Aid of Nebraska, for appellant.

         [293 Neb. 919] Shawn D. Renner and Susan K. Sapp, of Cline, Williams. Wright, Johnson & Oldfather, L.L.P., for appellee.

          Heavican, C.J., Wright, Connolly, Miller-Lerman, and Cassel, JJ., and Pirtle and Riedmann, Judges.

          Connolly, J.

         I. SUMMARY

         In these consolidated cases, and a companion case, [1] the appellant, Jesse B., challenged the adoption of his daughter, Jaelyn B. These consolidated appeals arise from the adoption proceeding in county court. Jesse attempted to intervene to challenge the court's authority to exercise jurisdiction over the adoption proceeding. Jesse is Jaelyn's legal father under Ohio statutes. Those statutes provide that he has a right to notice of a proceeding to adopt Jaelyn and that his consent is required. Jesse claimed that Nebraska must give full faith and credit to Ohio's determination of his paternity. He also claimed that the court lacked subject matter jurisdiction because he had not consented to Jaelyn's adoption.

         Despite Ohio statutes that give Jesse paternity rights, the county court concluded that Nebraska's adoption statutes did not require Jesse's consent to Jaelyn's adoption because genetic testing showed that another man was Jaelyn's biological father. Accordingly, the county court did not allow Jesse to intervene. Later, it issued an adoption decree.

         We conclude that Neb. Rev. Stat. 43-1406(1) (Reissue 2008) requires Nebraska to give full faith and credit to Ohio's paternity determination. Giving full faith and credit includes giving effect to Ohio's determination that Jesse must consent to Jaelyn's adoption. Because he did not consent, we conclude that the county court erred in disestablishing his paternity through an adoption decree. We reverse the judgment and remand the cause with directions for the county court to vacate its decree. We deal with the custody issues [293 Neb. 920] going forward in Jesse's separate habeas corpus appeal from the district court.


         Before setting out the facts and resolving some of the issues under Ohio's statutes, we set out the judicial notice principles that apply here. A court may judicially notice adjudicative facts, which are not subject to reasonable dispute, at any stage of the proceeding.[2] In interwoven and interdependent cases, we can examine our own records and take judicial notice of the proceedings.[3]


         Jaelyn was born in Ohio in April 2013. The next day, the mother, Heather K., and Jesse signed before a notary an "Acknowledgment of Paternity Affidavit, " affirming that Jesse was Jaelyn's father. The instructions provided that both the mother and the father had to sign the acknowledgment and have each signature notarized. The form explained that the purpose of the paternity affidavit "is to acknowledge the legal existence of a father and child relationship through voluntary paternity establishment." The signature certification required each parent to affirm that he or she had read both sides of the affidavit. On the back, the acknowledgment included a notice of the parties' rights and responsibilities. First, the man signing the form assumed the parental duty of support. Second, the notice provided that Ohio statutes limited the signatories' right to rescind it:

Both parents who sign this paternity affidavit waive any right to bring a court action to establish paternity pursuant to sections 3111.01 to 3111.18 of the Revised Code [293 Neb. 921] or make a request for an administrative determination of a parent and child relationship pursuant to section 3111.38 of the Revised Code, other than a court action filed for purposes of rescinding the paternity affidavit.

         The notice explained that in some circumstances, a signatory could seek an administrative rescission of the acknowledgment within 60 days. A signatory could also file a court action to rescind it for fraud, duress, or mistake of fact. But a signatory had to commence a court action after the 60-day period for requesting an administrative rescission expired and within 1 year after "the paternity affidavit becomes final pursuant to sections 2151.232, 3111.25 or 3111.821" of Ohio's statutes. The form also provided that if the law presumed another man to be the father, the parties could not sign a paternity acknowledgment. The notice defined a presumed father to include a man who had signed an acknowledgment of paternity that was on file with the "Ohio Department of Job & Family Services'' but was not yet final. Finally, the notice provided that either parent had the right to request genetic testing at no charge instead of signing the acknowledgment.

         Heather and Jesse were later named as Jaelyn's mother and father on her birth certificate. It was recorded in Ohio's office of vital statistics on June 3, 2013.

         2. Jesse's Relationship With Heather and Jaelyn

         In the Nebraska adoption proceeding, the county court received Jesse's affidavit for deciding whether he could intervene. In the affidavit, Jesse stated some background facts regarding his relationship with Heather and Jaelyn. Jesse met Heather in Omaha in June 2012, and they began living together in July. That month, they learned that Heather was pregnant. Jesse stated that he supported her financially and emotionally throughout the pregnancy. In March 2013, they moved to Ohio to live with Jesse's parents. Jesse was present at Jaelyn's birth and took an active role in caring for her.

         [293 Neb. 922] According to Jesse, Heather left Jaelyn with Jesse and his parents about the middle of September 2013 to pursue a relationship with a man she met on the Internet. Before she left, she signed the paperwork to give Jesse's mother custody of Jaelyn. But at the end of September, Heather returned and asked to take Jaelyn for a weekend visit. She never returned Jaelyn. Jesse visited Jaelyn once in Cleveland, Ohio, about 2 weeks later, but Heather would not allow Jaelyn to return with him. Later, Jesse learned that Heather had obtained a dismissal of an Ohio case to give custody of Jaelyn to Jesse's mother. Instead, she returned to Nebraska with Jaelyn. She refused to allow Jesse to see Jaelyn, and at some point, she blocked his telephone calls. The last time Jesse communicated with Heather was on Christmas in 2013.

         In Jesse's motion to dismiss the adoption proceeding, he attached a copy of a letter from Heather to a judge in the Ohio Court of Common Pleas. In the letter, Heather requested a dismissal of the custody petition for Jaelyn. She stated that she had decided to retain custody of Jaelyn and return to Nebraska. The letter was dated October 7, 2013. Another attachment showed that the Ohio court dismissed the custody case on the same day.

         3. Adoption Notification and Commencement of Judicial Proceedings

         In January 2014, Jesse received adoption paperwork from Heather's Nebraska attorney, Kelly Tollefsen. The letter stated that Heather had identified Jesse as a possible biological father and intended to relinquish Jaelyn for an adoption. It informed him that if he intended to claim paternity and seek custody, he should obtain his own attorney, or he could sign the enclosed forms for relinquishing Jaelyn and consenting to her adoption. In his affidavit, Jesse stated that he had contacted Tollefsen but that she would not provide him with any information about the adoption. He could not afford an [293 Neb. 923] attorney and did not obtain legal assistance in Nebraska until later that spring.

         In June 2014, Jesse filed a complaint in Lancaster County District Court for a writ of habeas corpus and a declaratory judgment. In that action, he challenged the constitutionality of Nebraska's adoption statutes that permitted Jaelyn's adoption without his consent. And he claimed that Nebraska must give full faith and credit to Ohio's paternity determination. On July 22, Jesse sued for custody in the Ohio Court of Common Pleas. On July 30, Jesse filed an objection to the adoption of Jaelyn and a request for notice of any adoption proceeding for Jaelyn in Douglas County Court. In August, Tylee H., the prospective adoptive parent, filed a petition to adopt Jaelyn in Douglas County Court.

         4. Ohio Court Proceedings

         A March 2015 order from the Ohio Court of Common Pleas shows that in September 2014, Tylee moved to intervene in Jesse's custody action (after she filed a Nebraska petition for adoption in August). Tylee sought a dismissal of Jesse's custody case, but the Ohio court continued the matter and ordered a home study. In October, Tylee moved for a finding that Jesse was not Jaelyn's biological father and asked for a dismissal. The Ohio court again continued the matter and ordered the parties to file briefs. In February 2015, Tylee filed a notice of a final adoption in Nebraska. The Douglas County Court entered the Nebraska adoption decree on January 15, 2015.

         The Ohio court stated that Jesse's rights regarding an adoption were established by the acknowledgment of paternity. The court concluded that "[p]aternity is not an issue because [Jesse] is the legal father of Jaelyn .... This court is curious as to why this child was adopted in another jurisdiction when this matter has been pending since July 22, 2014." It continued the matter for "pre-trial on the issue of custody." At oral arguments before this court, Jesse's attorney stated that the Ohio custody proceeding was still pending.

         [293 Neb. 924] 5. County Court Proceedings

         (a) Parties' Pleadings

         In Jesse's objection to the adoption, he alleged that under Ohio law, his acknowledgment was a determination of his paternity as though Jaelyn were born to him during marriage. He believed that a person named "Tylee" or someone else would seek Jaelyn's adoption and would claim that he was a putative father. He objected to any adoption and requested notice of any adoption petition or hearing. He also alleged that he had filed a habeas proceeding in district court to challenge Jaelyn's detention. He requested that the county court hold any adoption petition in abeyance until the district court resolved the claims in his habeas proceeding.

         As stated, in August 2014, Tylee filed an adoption petition in Douglas County Court. She alleged that Heather had relinquished Jaelyn in February 2014 and that Jaelyn had lived with Tylee for more than 6 months. Tylee alleged that Jesse was not Jaelyn's biological father. She claimed that she did not need his consent because he had not filed an administrative request for notification of an adoption or an administrative objection to an adoption. She acknowledged that Jesse had filed a custody action in Ohio but claimed that the Ohio court lacked jurisdiction for unstated reasons. She requested that the court order Jesse to submit to genetic testing.

         In September 2014, Jesse moved to intervene in the adoption proceeding. He attached a copy of his paternity acknowledgment. He alleged that the U.S. Constitution and Nebraska's § 43-1406 required the county court to give full faith and credit to his paternity determination under Ohio law. Citing this court's decision in Cesar C. v. Alicia L., [4] he alleged that he was also Jaelyn's legal parent under Nebraska law. Finally, he alleged that he had a constitutionally protected relationship with Jaelyn that required his consent to her adoption and that [293 Neb. 925] he had not given it. He cited the case number for his pending custody case in Ohio and again informed the court of the habeas corpus proceeding in district court.

         Tylee objected to Jesse's motion to intervene. She alleged that Heather had named two possible biological fathers and that genetic testing had shown that Jaelyn's biological father was Tyler T., who had relinquished his parental rights. And Nebraska's adoption statutes require consent only from a biological father. She alleged that Jesse's paternity acknowledgment created only a rebuttable presumption of paternity and that genetic testing had rebutted the presumption. Because Nebraska's statutes did not require Jesse's consent, she claimed that he did not have sufficient interest to intervene.

         Jesse responded with a motion to dismiss the adoption proceeding. He alleged that the court lacked subject matter jurisdiction and could not grant an adoption because he had not consented to it. He alleged that he was a necessary party because of his constitutionally protected relationship with Jaelyn. Additionally, he alleged that under Ohio law, Heather had waived her right to a judicial paternity determination because she signed the paternity acknowledgment and did not seek a rescission. He again alleged that the court must give full faith and credit to Ohio's paternity determination. He claimed that Tylee and her attorney had committed a fraud on the court by characterizing him as a putative father.

         (b) Adoption Hearings

         At the hearing on Jesse's motion to intervene, the court received Heather's February 2014 relinquishment of Jaelyn specifically for adoption by Tylee. It also admitted evidence that Jesse had filed an action in district court. He argued that the district court therefore had jurisdiction over the ...

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