43-104 Adoption; consent required; exceptions. - Nebraska Statutes

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. SourceLaws 1943, c. 104, § 4(1), p. 350; R.S.1943, § 43-104; Laws 1951, c. 127, § 1, p. 546; Laws 1967, c. 248, § 1, p. 652; Laws 1971, LB 329, § 1; Laws 1973, LB 436, § 1; Laws 1975, LB 224, § 2; Laws 1983, LB 146, § 3; Laws 1984, LB 510, § 3; Laws 1985, LB 255, § 20; Laws 1988, LB 790, § 22; Laws 1995, LB 712, § 20; Laws 1996, LB 1296, § 19; Laws 1998, LB 1041, § 7; Laws 1999, LB 594, § 10; Laws 2002, LB 952, § 2; Laws 2003, LB 148, § 100; Laws 2007, LB247, § 5. Cross ReferencesNebraska Indian Child Welfare Act, see section 43-1501.Uniform Child Custody Jurisdiction and Enforcement Act, see section 43-1226. AnnotationsThe 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).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).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).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).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).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).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).