2017NSBAAnnualMeeting

Family Law Section Seminar
Adoption Issues in the Modern World; The Ethics of Representing a Stressed Out, Difficult Client

Susan Sapp - Cline Williams;
Natalie Hazen - Ballew Covalt Hazen

October 13, 2017
Embassy Suites La Vista

UPDATES IN NEBRASKA ADOPTION LAW

October 2017

Susan K. Sapp, J.D.

CLINE WILLIAMS

WRIGHT JOHNSON & OLDFATHER, L.L.P.

Attorneys at Law

233 South 13th StreetSterling Ridge

1900 U.S. Bank Bldg.12910 Pierce Street, Suite 200

Lincoln, NE 68508Omaha, NE 68144

1207 M StreetNorthern Heights Professional Plaza

P.O. Box 510416 Valley View Drive, Suite 304

Aurora, NE 68818Scottsbluff, NE 69361

330 South College Avenue

Suite 300

Fort Collins, CO 80524

The purpose of this outline is to generally inform and not to specifically advise. Presentations and materials cannot consider all factors which impact on individual cases.


Susan K. Sapp

(402) 474-6900
Practice Areas:
  • Administrative Litigation
  • Business Litigation
  • Employment Litigation
  • Health Care
  • Labor and Employment
  • Personal Injury and Wrongful Death
  • Professional Liability and Licensing
Admitted to Practice:
Nebraska
Iowa
United States District Court for the District of Nebraska
United States Court of Appeals for the Eighth Circuit
Education:
University of Nebraska, J.D., with high distinction, 1989
University of Nebraska, B.S., 1986 /
Susan K. Sapp
Practice Emphasis:
Susan has a general civil trial practice which includes labor and employment issues, medical and legal malpractice defense and insurance defense. She represents school districts, hospitals, doctors, employers and insurance companies in all aspects of legal representation. She also handles all aspects of adoption proceedings, and was the legislative drafter for LB 712 (1995), LB1014 (1998), LB 247 (2007) and LB 744 (2016) adoption legislation. In addition, Susan serves as mediator in personal injury and employment cases.
Other Experience/Achievements:
  • Fellow, American Academy of Adoption Attorneys
  • Associate, American Board of Trial Advocates
  • Listed: Best Lawyers in America (Woodward/White, Inc.) (Employment Law-Management)
  • Named: Best Lawyers' 2013 Lincoln Labor Law - Management Lawyer of the Year
  • Listed: Chambers USA, America's Leading Lawyers for Business (Chambers & Partners Publishing) (Litigation: Insurance)
  • Listed: Great Plains Super Lawyers (Personal Injury-Medical Malpractice Defense; Personal Injury General Defense; Schools & Education)
  • Fellow, Litigation Counsel of America
  • Fellow, Nebraska State Bar Foundation
  • Past President and Member, Nebraska Council of School Attorneys
  • Member, American Trial Lawyers Association
  • Member, National Association of Trial Attorneys
  • Vice-Chair, Nebraska State Bar Association Continuing Legal Education Section
  • Past Chair, District One Committee on Inquiry for Attorney Discipline
  • Board Member, Child Guidance Center
  • Research and Case Note Editor, Nebraska Law Review, 1987-1988
  • Order of the Coif

ADOPTION BASICS

The main points to explore in the first meeting with your client are:

a.Is the person to be adopted a minor? Section 43-101 provides that the person to be adopted must be a minor unless the adoption is to be by a step-parent or unless a parent-child relationship existed prior to the age of majority.

b.The persons seeking to adopt must be adults (age 19 or over) and if an adopting parent is married, his or her spouse must join in the petition. SeeNeb. Rev. Stat. § 43-101. A non-married person may not adopt the legal child of another non-married individual unless the legal parent first relinquishes his or her parental rights. This used to preclude adoption by one same-sex partner of the other same-sex partner’s legal child. SeeIn Re Adoption of Luke, 263 Neb. 365, 640 N.W.2d 374 (2002). Since the legalization of same-sex marriage, however, step-parent adoptions can be completed for same sex couples, provided they are legally married.

43-101. Children eligible for adoption.

(1) Except as otherwise provided in the Nebraska Indian Child Welfare Act, any minor child may be adopted by any adult person or persons and any adult child may be adopted by the spouse of such child's parent in the cases and subject to sections 43-101 to 43-115, except that no person having a husband or wife may adopt a minor child unless the husband or wife joins in the petition therefor. If the husband or wife so joins in the petition therefor, the adoption shall be by them jointly, except that an adult husband or wife may adopt a child of the other spouse whether born in or out of wedlock.

c.The adoptive parents must be residents of the county in which the petition will be filed (unless the child is a State ward when adopted, seeNeb. Rev. Stat.§ 43-102) or must be serving in the armed forces of the United States and have been continuously stationed at any military base or installation in Nebraska for a period of one year immediately before the filing of the petition for adoption. Neb. Rev. Stat. §§ 43-102, 102.01. If the child is under the jurisdiction of a juvenile court, jurisdiction remains in that county, irrespective of where the adoptive parents reside.

d.The adoptive child must have lived with the adoptive parents for at least 6 months before the adoption decree is entered. Neb. Rev. Stat. § 43-109.

e.Has the biological parent been divorced from the other biological parent? Has there been a guardianship established for the child? Has a paternity proceeding been filed and paternity adjudicated? If so, you will need to get the name, case number, and dates of the various orders in order to obtain the appropriate court’s consent to the adoption. SeeNeb. Rev. Stat. § 43-104 (2003). If a birth father has been adjudicated to be the legal father (albeit unmarried), special processes must be followed. SeeNeb. Rev. Stat. § 43-104.25 (2007).

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.

f.Was the child born in or out of wedlock? Will the other biological parent consent to the adoption? If so, obtain the name and address of the other biological parent for purposes of mailing a consent form to that parent or otherwise serving notice on him pursuant to the unwed father statutes, 43-104.02 to 43-104.25. Has any unmarried putative or biological father developed a familial relationship with the child? No definition has been provided by the court or by the legislature, but you need to ascertain if the child lived with the putative or biological father, how long, efforts to support, etc. Is there a biological father/parent listed on the birth certificate? 2016 case law makes this a new category of legal father that must be addressed.

g.If the other (married/legal father) biological parent cannot or will not consent to the adoption, are there facts sufficient to constitute abandonment? If the child was born out of wedlock, the subsections that still apply are 43-104.02 to 104.25, including the required notice to the birth father and court approval in the case of an adjudicated birth father. Are there other potential birth fathers? The birth mother must always fill out an Affidavit of Identification of the putative father or fathers if the child was born out of wedlock, even if she was legally married to someone else at that time.

h.Are the clients financially able to support the proposed adopted child? Does the child have any special needs? Do they qualify for subsidies? Is the child a state ward? If so, special subsidies may apply.

i.Obtain the following information from the clients:

(1)the biological and proposed adoptive parents’ full names, including all former names;

(2)the current address of the adoptive parents and biological parents;

(3)the full name of the minor child(ren) and birth date(s);

(4)the full name and current address of any and all putative biological parent(s);

(5)a complete medical history on the child and from both biological parents; and

(6)a complete social history from the biological parents. See sections VII and VIII for medical and social history forms.

Birth Father Issues

Remember this is sometimes sensitive or uncomfortable, and it is best if you have taken the time to get to know your clients before asking about either partner’s sexual relationships. Ask early on if the child knows he or she is being adopted and address any special issues to determine if what the client wants to do is feasible—e.g, doesn’t want to tell the child he or she is being adopted. The next step is determining what categorie(s) of birth father you are dealing with and set your strategy. Most step-parent adoptions deal with older children and older children adoptions are the most difficult kind of adoption in Nebraska at this time.

1.Non-Adjudicated Birth Fathers

Non-adjudicated/putative birth father(s) have the right to claim paternity of the child by filing with Health and Human Services a Notice of Objection to Adoption and Intent to Obtain Custody anytime during the pregnancy and as late as five business days after the birth of the child, or if notice occurs after birth, within five business days of his receipt of the earliest notice. See §43-104.02.

43-104.02. Child born out of wedlock; Notice of Objection to Adoption and Intent to Obtain Custody; filing requirements.

A Notice of Objection to Adoption and Intent to Obtain Custody shall be filed with the biological father registry under section 43-104.01 on forms provided by the Department of Health and Human Services (1) at any time during the pregnancy and no later than five business days after the birth of the child or (2) if the notice required by section 43-104.13 is provided after the birth of the child (a) at any time during the pregnancy and no later than five business days after receipt of the notice provided under section 43-104.12 or (b) no later than five business days after the last date of any published notice provided under section 43-104.14, whichever notice is earlier. Such notice shall be considered to have been filed if it is received by the department or postmarked prior to the end of the fifth business day as provided in this section.

The statutes provide that the rights of any putative biological father to object to the adoption shall not be recognized in any court unless he first files with Health and Human Services, on a form provided by the Department, a Notice of Objection to Adoption and Intent to Obtain Custody. A notice post-marked within the five business day period will satisfy the provisions of the statute.

Unless the specific Notice of Objection to Adoption and Intent to Obtain Custody form is filed within five business days, the birth father’s right to object to the adoption is not further recognized. If this claim is filed, however, this does not mean the birth father automatically obtains custody of the child or even the right to custody of the child. His filing triggers the right of himself, the birth mother, or an agent specifically designated by the birth mother to file a petition in the county court of the county where the child was born for an adjudication of the Objection to Adoption. SeeNeb. Rev. Stat.§43-104.05. (If the child was born out of state, the customary rules regarding venue would apply, in my opinion, so the petition could be filed where the child resided or where one or both birth parents reside.)

43-104.05. Child born out of wedlock; notice; filed; petition for adjudication of paternity; trial; guardian ad litem; court; jurisdiction.

(1) If a Notice of Objection to Adoption and Intent to Obtain Custody is timely filed with the biological father registry pursuant to section 43-104.02, either the putative father, the mother, or her agent specifically designated in writing shall, within thirty days after the filing of such notice, file a petition for adjudication of the notice and a determination of whether the putative father's consent to the proposed adoption is required. The petition shall be filed in the county court in the county where such child was born or, if a separate juvenile court already has jurisdiction over the custody of the child, in the county court of the county in which such separate juvenile court is located.

(2) If such a petition is not filed within thirty days after the filing of such notice and the mother of the child has executed a valid relinquishment and consent to the adoption within sixty days of the filing of such notice, the putative father's consent to adoption of the child shall not be required, he is not entitled to any further notice of the adoption proceedings, and any alleged parental rights and responsibilities of the putative father shall not be recognized thereafter in any court.

(3) After the timely filing of such petition, the court shall set a trial date upon proper notice to the parties not less than twenty nor more than thirty days after the date of such filing. If the mother contests the putative father's claim of paternity, the court shall order DNA testing to establish whether the putative father is the biological father. The court shall assess the costs of such testing between the parties in an equitable manner. Whether the putative father's consent to the adoption is required shall be determined pursuant to section 43-104.22. The court shall appoint a guardian ad litem to represent the best interests of the child.

(4)(a) The county court of the county where the child was born or the separate juvenile court having jurisdiction over the custody of the child shall have jurisdiction over proceedings under this section from the date of notice provided under section 43-104.12 or the last date of published notice under section 43-104.14, whichever notice is earlier, until thirty days after the conclusion of adoption proceedings concerning the child, including appeals, unless such jurisdiction is transferred under subdivision (b) of this subsection.

(b) Except as otherwise provided in this subdivision, the court shall, upon the motion of any party, transfer the case to the district court for further proceedings on the matters of custody, visitation, and child support with respect to such child if (i) such court determines under section 43-104.22 that the consent of the putative father is required for adoption of the minor child and the putative father refuses such consent or (ii) the mother of the child, within thirty days after the conclusion of proceedings under this section, including appeals, has not executed a valid relinquishment and consent to the adoption. The court, upon its own motion, may retain the case for good cause shown.

An adjudication of the claim is essentially a proceeding to see if he can block the adoption and take custody of the child himself. He has to file in county court (or any juvenile court with jurisdiction), or there is no subject matter jurisdiction. SeeArmour v. L.H., 259 Neb. 138, 608 N.W.2d 599 (2000), Bohaboj v. Rausch 272 Neb. 394, 721 N.W. 2d 655. He has 30 days to do so and will lose his right to object to the adoption if he fails to meet that deadline. SeeNeb. Rev. Stat. § 43-104.22 and 43-105.04.

If the birth mother contests the claim of paternity, i.e. the paternity itself, the court shall order DNA testing. If the claimant father seeks to oppose the proposed relinquishment of the child by the birth mother, there is a trial on the putative father’s fitness, his ability to properly care for the child, and whether the best interests of the child will be served by granting custody to him. See § 43-104.22 specifically and generally see §§ 43-104.04 through 43-104.24.

Always keep in mind that the underlying goals of the adoption practitioner or legal representative in an adoption should be “due diligence” and “substantial compliance.” Each adoption is different; so if the circumstances of a case do not permit literal compliance, document it and explain it in the Affidavit of Due Diligence. Judges will likely look to the reasonableness of your efforts under the circumstances in determining “due diligence,” even if literal compliance could not be achieved for some reason. Trying to take a short-cut or being cute or cleverwill almost always doom the process and damage your professional credibility. The statutory scheme has been held constitutional, but careful compliance is the key to future holdings of constitutionally. SeeIn Re Adoption of Baby Girl H, Armour v. KGG and TSG, 262 Neb. 775, 635 N.W.2d 256 (2001)(holding 43-104 constitutional). Additionally, to bolster the strength of our notice statute, I believe additional information for the birth father or putative father is wise -- specifically, the time frame he has to file and your offer to let him know of the birth. See Sample Letter to Birthfather Enclosing Notice.

2.Recent Case Law Regarding Birth Fathers and Legislative Change

a.Bohaboj v. Rausch, 272 Neb 394, 721 N.W.2d 655 (2006)

(1)Facts

Biological mother (Rausch) gave birth to a child out of wedlock. Four days later, the adoption agency sent a letter to the biological father (Bohaboj), pursuant to §§ 43-104.08 to 43-104.24, informing him that the biological mother intended to execute a relinquishment of the child for adoption. The biological father filed a notice of intent to claim paternity and obtain custody under § 43-104.02 but did not file a petition to adjudicate the notice under § 43-104.05. More than four months after filing the notice, the biological father filed a paternity action in district court under § 43-1401 et seq.