43-104. Adoption; consent required; exceptions.

(1) Except as otherwise provided in this section and in the Nebraska Indian Child Welfare Act, no adoption shall be decreed unless written consents thereto are filed in the county court of the county in which the person or persons desiring to adopt reside or in the county court in which the separate juvenile court having jurisdiction over the custody of the child is located and the written consents are executed by (a) the minor child, if over fourteen years of age, or the adult child, (b) any district court, county court, or separate juvenile court in the State of Nebraska having jurisdiction of the custody of a minor child by virtue of proceedings had in any district court, county court, or separate juvenile court in the State of Nebraska or by virtue of the Uniform Child Custody Jurisdiction and Enforcement Act, and (c) both parents of a child born in lawful wedlock if living, the surviving parent of a child born in lawful wedlock, the mother of a child born out of wedlock, or both the mother and father of a child born out of wedlock as determined pursuant to sections 43-104.08 to 43-104.25. On and after April 20, 2002, a written consent or relinquishment for adoption under this section shall not be valid unless signed at least forty-eight hours after the birth of the child.

(2) Consent shall not be required of any parent who (a) has relinquished the child for adoption by a written instrument, (b) has abandoned the child for at least six months next preceding the filing of the adoption petition, (c) has been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or (d) is incapable of consenting.

(3) Consent shall not be required of a putative father who has failed to timely file (a) a Notice of Objection to Adoption and Intent to Obtain Custody pursuant to section 43-104.02 and, with respect to the absence of such filing, a certificate has been filed pursuant to section 43-104.04 or (b) a petition pursuant to section 43-104.05 for the adjudication of such notice and a determination of whether his consent to the adoption is required and the mother of the child has timely executed a valid relinquishment and consent to the adoption pursuant to such section.

(4) Consent shall not be required of an adjudicated or putative father who is not required to consent to the adoption pursuant to section 43-104.22.

Source

Cross References

Annotations

1. Abandonment

2. Miscellaneous

1. Abandonment

Subsection (4) of this section does not apply to an acknowledged, legal father under another state's paternity determination. In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).

It is clear that the district court is not to consider the issue of abandonment; the question of whether the parent did in fact abandon the child, for purposes of adoption, is exclusively for the county court. Smith v. Smith, 242 Neb. 812, 497 N.W.2d 44 (1993).

The critical period of time during which abandonment must be shown to eliminate the necessity for obtaining consent to adoption from a parent under this section is the 6 months immediately preceding the filing of the petition for adoption. In re Guardianship of T.C.W., 235 Neb. 716, 457 N.W.2d 282 (1990).

Abandonment for purposes of permitting substitute consent for adoption must be proved by clear and convincing evidence. In re Guardianship of Sain, 217 Neb. 96, 348 N.W.2d 435 (1984).

Although the critical period of time during which abandonment must be shown to eliminate the necessity of obtaining consent pursuant to this section is the six months immediately preceding the filing for adoption, evidence of a parent's conduct either before or after this period may be considered as relevant to a determination of whether the purpose and intent of that parent was to abandon the child or children. To prove abandonment in adoption proceedings, the evidence must clearly and convincingly show that the parent has acted toward the child in a manner evidencing a settled purpose to be rid of all parental obligations and to forego all parental rights, together with a complete repudiation of parenthood and an abandonment of parental rights and responsibilities. Where there has been a protracted period of totally unjustified failure to exercise parental functions, an isolated contact does not necessarily negate the inference that a person no longer wishes to act in the role of a parent to a child. In re Adoption of Simonton, 211 Neb. 777, 320 N.W.2d 449 (1982).

To warrant an adoption, it must clearly appear that the natural parents, if living, had abandoned the child for a period of at least six months. McCauley v. Stewart, 177 Neb. 759, 131 N.W.2d 174 (1964).

2. Miscellaneous

This section and sections 43-102 and 43-103, construed together, require that before a county court entertains a decision on the merits in an adoption proceeding, all those statutorily required to consent have done so. In re Adoption of Chase T., 295 Neb. 390, 888 N.W.2d 507 (2016).

A finding of abandonment under subdivision (2)(b) of this section in an ongoing adoption proceeding is not a final, appealable order; such a finding does not terminate parental rights or standing in the proceedings, but merely eliminates the need for the abandoning parent's consent and authorizes the execution of substitute consent, and such a finding has no real and immediate effect on parental obligations, visitation, custody, or other matters pertaining to the parent's contact with the child during the pendency of the final judgment granting or denying the petition for adoption. In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).

Pursuant to subsection (3) of this section, for an adoption to proceed, the consent of the biological father who has established a familial relationship with his child is required unless, under subsection (2) of this section, the party seeking adoption has established that the biological parent: (1) has relinquished the child for adoption by a written instrument, (2) has abandoned the child for at least six months next preceding the filing of the adoption petition, (3) has been deprived of his or her parental rights to such child by the order of any court of competent jurisdiction, or (4) is incapable of consenting. In re Adoption of Corbin J., 278 Neb. 1057, 775 N.W.2d 404 (2009).

The putative father provisions of this section do not apply to a previously adjudicated father. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).

The consent granted by the district court pursuant to the provisions of this section does nothing more than permit the county court, as the tribunal having exclusive original jurisdiction over adoption matters, to entertain such proceedings. Klein v. Klein, 230 Neb. 385, 431 N.W.2d 646 (1988).

The signing of a consent to adoption does not, in itself, release the consenting parent from an obligation to support the child and the court's earlier opinion in Smith v. Smith, 201 Neb. 21, 265 N.W.2d 855 (1978), should not be read that way. Williams v. Williams, 206 Neb. 630, 294 N.W.2d 357 (1980).

Consent for relinquishment executed by seventeen year old mother of child born out of wedlock is valid. Batt v. Nebraska Children's Home Society, 185 Neb. 124, 174 N.W.2d 88 (1970).

Adoption is permitted where parents have been deprived of custody of minor child by order of juvenile court. Krell v. Jenkins, 157 Neb. 554, 60 N.W.2d 613 (1953).