43-105. Substitute consents.

(1) If consent is not required of both parents of a child born in lawful wedlock if living, the surviving parent of a child born in lawful wedlock, or the mother or mother and father of a child born out of wedlock, because of the provisions of subdivision (1)(c) of section 43-104, substitute consents shall be filed as follows:

(a) Consent to the adoption of a minor child who has been committed to the Department of Health and Human Services may be given by the department or its duly authorized agent in accordance with section 43-906;

(b) When a parent has relinquished a minor child for adoption to any child placement agency licensed or approved by the department or its duly authorized agent, consent to the adoption of such child may be given by such agency; and

(c) In all other cases when consent cannot be given as provided in subdivision (1)(c) of section 43-104, consent shall be given by the guardian or guardian ad litem of such minor child appointed by a court, which consent shall be authorized by the court having jurisdiction of such guardian or guardian ad litem.

(2) Substitute consent provisions of this section do not apply to a biological father whose consent is not required under section 43-104.22.

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Annotations

A finding of abandonment under this section should not be made without first appointing a guardian. Abandonment, for purposes of permitting substitute consent, must be proven by clear and convincing evidence. In re Guardianship of Sain, 211 Neb. 508, 319 N.W.2d 100 (1982).

Under subsection (3) of this section, the county court is the proper court for authorizing consent of a guardian appointed under former sections 38-101 to 38-120 or section 43-111.01, as the authority to appoint a guardian under those sections lies exclusively in the county court, while the juvenile court would be the proper court for a guardian appointed under sections 43-201 to 43-227 since the juvenile court has exclusive jurisdiction to appoint a guardian under these sections. However, the jurisdiction of the juvenile court arises only if there has been a determination, prior to the adoption proceedings, that the child is dependent and neglected; otherwise the matter remains exclusively in the jurisdiction of the county court. Section 38-114 remains as the legislative bridge between the reference to former sections 38-101 to 38-120 in this section and the provisions of sections 30-2601 to 30-2616. A guardian appointed for a minor child for whom adoption is being sought by the use of substitute consent pursuant to this section should be an independent party not directly interested in the outcome of the adoption proceedings. In re Guardianship of Sain, 211 Neb. 508, 319 N.W.2d 100 (1982).