871 N.W.2d 265
Neb. Ct. App.2015Background
- Jeremy S. is the biological father of three children (born 2001, 2004, 2005); he was convicted in Missouri of sexual offenses against his daughter Madysen and is serving a 16-year sentence.
- Mother Nicole K. obtained dissolution of the marriage (2007), custody of the children, and an order prohibiting Jeremy’s parenting time; Jeremy pays court-ordered child support ($50/month) and is current.
- Nicole married William K. in 2013; William has acted as the children’s father since about 2009–2010 and seeks stepparent adoption of the three children.
- Nicole and William filed adoption petitions and petitions to terminate Jeremy’s parental rights alleging abandonment under Neb. Rev. Stat. § 43-104(2); Jeremy opposed and asserted he did not intend to abandon the children.
- County court found Jeremy had abandoned the children (so his consent to adoption was not required) and allowed the guardian ad litem to consent; Jeremy appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jeremy abandoned the children under § 43-104(2), removing need for his consent to adoption | Jeremy’s incarceration and long absence, plus withholding of parental presence, demonstrate a settled purpose to forgo parental obligations and rights | Jeremy maintained contact by sending letters/cards, paid court-ordered child support, refused to relinquish rights, and expressed intent to resume relationship when released — no clear and convincing evidence of abandonment | Reversed: county court erred; record lacks clear and convincing proof of abandonment and Jeremy’s consent is required |
Key Cases Cited
- Jeremiah J. v. Dakota D., 287 Neb. 617 (Neb. 2014) (parental liberty interest and adoption consent rules)
- In re Adoption of Simonton, 211 Neb. 777 (Neb. 1983) (statutory six‑month period may be considered with conduct before/after period in abandonment determinations)
- In re Guardianship of T.C.W., 235 Neb. 716 (Neb. 1990) (clear and convincing standard for abandonment; requires settled purpose to forgo parental rights)