In re Adoption of Madysen S. ( 2015 )

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 23 Neb. Ct. App. 351
In re A doption of M adysen S. et al., minor children.
Nicole K. and William K., appellees,
v. Jeremy S., appellant.
___ N.W.2d ___
Filed October 20, 2015. No. A-15-032.
1. Adoption: Appeal and Error. Appeals in adoption proceedings are
reviewed by an appellate court for error appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
3. Constitutional Law: Parental Rights. The interest of parents in the
care, custody, and control of their children is perhaps the oldest of the
fundamental liberty interests recognized by the U.S. Supreme Court.
4. Parental Rights: Adoption. The foundation of Nebraska’s adoption
statutes is the consent of a biological parent to the termination of his or
her parental rights.
5. Adoption: Abandonment: Proof: Parental Rights. To prove aban-
donment in adoption proceedings, the evidence must clearly and con-
vincingly 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
forgo all parental rights, together with a complete repudiation of parent-
hood and an abandonment of parental rights and responsibilities.
Appeal from the County Court for Lincoln County: Michael
E. Piccolo, Judge. Reversed.
Todd M. Jeffers, of Brouillette, Dugan & Troshynski, P.C.,
L.L.O., for appellant.
Angela M. Franz, of Waite, McWha & Heng, for appellees.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 23 Neb. Ct. App. 351
Irwin, Inbody, and R iedmann, Judges.
Inbody, Judge.
INTRODUCTION
Jeremy S., the biological father of Madysen S., Orion S.,
and Leo S., appeals the order of the Lincoln County Court
finding that pursuant to Neb. Rev. Stat. § 43-104 (Reissue
2008), Jeremy had abandoned the children and his con-
sent was not required for adoption of the children by their
stepfather.
STATEMENT OF FACTS
Jeremy and Nicole K. were married in September 2000.
From that marriage, three children were born: Madysen in
2001, Orion in 2004, and Leo in 2005. In 2007, Madysen was
interviewed by law enforcement regarding a report of sexual
abuse perpetrated on her by Jeremy. Madysen reported that
Jeremy sexually assaulted her on numerous occasions between
December 2006 and March 2007. Jeremy was arrested, and
Nicole and the children relocated from Missouri to Gage
County, Nebraska. In July 2007, the Gage County District
Court dissolved Jeremy and Nicole’s marriage. Nicole was
given custody of the children, and Jeremy was ordered to
have no parenting time and to pay $50 per month in child
support. In 2009, Jeremy was convicted in Missouri with
three counts of first degree child molestation. In August 2009,
Jeremy was sentenced to a total of 16 years’ imprisonment
and is currently incarcerated with the Missouri Department
of Corrections.
In or around 2009 or 2010, Nicole met William K. and a
relationship ensued. In January 2013, Nicole and William mar-
ried. In May and June 2014, Nicole and William contacted
Jeremy and requested that he voluntarily relinquish his parental
rights to the three minor children and consent to their adoption
by William. Jeremy refused their requests.
On August 5, 2014, Nicole and William filed verified peti-
tions for adoption by a stepparent for Madysen, Orion, and
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 23 Neb. Ct. App. 351
Leo. On the same day, Nicole and William filed petitions to
terminate Jeremy’s parental rights to all three children. The
petitions to terminate alleged that Jeremy had abandoned the
children and that termination of his parental rights was in
their best interests. Jeremy filed answers to both the adop-
tion and the termination filings, asking that the petitions
be denied.
The petitions came before the county court in October 2014.
Nicole testified that she was currently married to William
and lived with him in Brady, Nebraska. Nicole testified that
she was previously married to Jeremy and that they had three
children: Madysen, who at the time of trial was 13 years old;
Orion, who was 10 years old; and Leo, who was 8 years old.
During the marriage, Nicole discovered that Jeremy was sexu-
ally abusing Madysen, who was 6 years old at the time. Nicole
testified that at the time of trial, Jeremy was serving a total of
16 years’ incarceration in Missouri for those crimes.
Nicole testified that Jeremy recently had a parole board
hearing which she attended, during which she observed that
Jeremy was not remorseful, as he laughed at the charges and
could not answer many of the questions asked of him. Since
the abuse, Madysen had spent 11⁄2 years in counseling and
experienced depression and confusion, in addition to anger.
Nicole explained that now as a teenager, Madysen was return-
ing to counseling because she had come to understand what
Jeremy actually did and what that meant and was confused
and hurt.
Orion was 3 years old when Jeremy left the family. Orion
experienced anxiety issues and saw a counselor for 2 years for
those issues. Nicole testified that Leo was a baby when Jeremy
left and does not know Jeremy or exhibit any memories of
him. Nicole testified that when she and Jeremy were married,
Jeremy was not a good father and was often busy with video
games or friends and was frequently unable to financially
support the family because he spent money to buy “paint-
ball” guns.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 23 Neb. Ct. App. 351
Nicole testified that in 2007 or 2008, she wrote a letter to
the prison warden asking him to allow Jeremy visitation with
the children at the request of Jeremy’s family. Nicole also
allowed Jeremy’s extended family to have liberal visitation
with the children whenever they wanted to see the children.
Nicole testified that Jeremy pays $50 per month in child sup-
port and is current, although Nicole took issue with the pay-
ments because, she testified, Jeremy’s child support was paid
by his grandmother.
Nicole’s current husband, William, had been a part of the
family’s life for 3 years, and Nicole testified that the children
referred to him as “‘Dad.’” Nicole explained she and the chil-
dren had discussed the benefits of the adoption and determined
that the children’s having the same last name as everyone in
their family would be less confusing and that they would not
“have to lie” about their father any longer. Nicole testified
that the children would also qualify for more military benefits
available to William as adopted children versus stepchildren.
Nicole opined that it was in the best interests of the children to
terminate Jeremy’s parental rights and allow William to adopt
the children.
William is employed full time for the Department of Defense
as a surface maintenance mechanic inspector. William testified
that he had been involved in the children’s lives since 2009 or
2010 and had been involved in several activities with them,
such as teaching Leo to ride a bike, teaching Madysen to
deer hunt, taking Leo and Orion fishing, and other parenting
duties. William testified that the children referred to him as
“‘Dad.’” William explained that he wanted to adopt the chil-
dren because he had acted as their father and wanted to legally
take that responsibility.
Jeremy testified, explaining that his actions against Madysen
were as a result of a “rough spot” he and Nicole were going
through. Jeremy testified that a counselor told him he had
somehow convinced himself that Madysen was a surrogate for
Nicole, but that he is not a pedophile and has never molested
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 23 Neb. Ct. App. 351
any other children. Jeremy testified that he regrets his actions
every day and did not want to give up his parental rights to
the children.
Jeremy testified that he might be released from incarceration
in 2017 or 2019. Jeremy testified that he has completed sev-
eral classes while incarcerated, including criminology, crimi-
nal thinking, victim impact, restorative justice, dealing with
trauma, dealing with emotions, and anxiety and stress manage-
ment. Jeremy also attends therapy once a week, and if he were
conditionally released, he would be required to take a Missouri
sex offender program lasting 9 to 18 months. Jeremy testified
that he would like to see the children under supervised condi-
tions when he is released.
Jeremy testified that since being incarcerated, he has sent
the children birthday cards and letters and listened to the chil-
dren in the background when he would be speaking with his
family on the telephone, although he did not speak directly to
the children. The last letters he sent were in June 2014, and
he testified he received Father’s Day cards from the children.
Jeremy testified that he pays his child support. Jeremy testified
that Nicole was preventing him from visiting the children, but
admitted that he did not have any parenting time according
to the dissolution decree. Jeremy testified that he signed the
marital dissolution papers under duress and threat of soli-
tary confinement.
Jeremy testified that it was not in the best interests of the
children to terminate his parental rights, even though it might
be 12 years until his possible release date, when he could see
the children in person.
Jeremy’s grandmother testified that she was at Jeremy’s
parole board hearing and that during the hearing, Jeremy
was upset, but not disrespectful. She testified that the board
was trying to provoke him. She testified that it is in the chil-
dren’s best interests that Jeremy retain his parental rights.
She testified that occasionally when Jeremy called, she would
allow him to be put on the telephone’s loudspeaker to tell
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 23 Neb. Ct. App. 351
the children that he loved and missed them. She testified
that when she told the children that Nicole would not allow
them to speak with Jeremy, the children would become upset.
Jeremy’s grandmother testified that, most recently in June,
Jeremy had sent letters to the children. She testified that the
children refer to Jeremy as “Daddy” and have sent him many
holiday cards.
The children’s guardian ad litem testified that she was the
court-appointed guardian ad litem and had interviewed all of
the interested parties in the case. She explained that she inter-
viewed the children and found that there was little disclosure
about a relationship with Jeremy. The children live in a family
unit, and Leo appeared confused as to why he needed to be
adopted by “his dad, because his dad is married to his mom.”
The guardian ad litem testified that Madysen was not confused
and understood why Nicole was in favor of adoption.
The guardian ad litem testified that Jeremy was very pas-
sionate about wanting to have a relationship with the children,
whenever that may be. She explained that Jeremy felt like he
wanted to atone for his actions. However, as a result of the
circumstances and the long-term effects on the children, it was
in the best interests of the children that William be allowed
to adopt them. She testified that in her experience, it is very
difficult for children to reintegrate parents who have been
incarcerated for long periods of time. Further, she explained
that the children needed permanency, which would be difficult
under these circumstances.
In a December 2014 order, the county court proceeded
with the proceedings under Neb. Rev. Stat. § 43-101 et seq.
(Reissue 2008). The court found that Jeremy did not relin-
quish his parental rights, was not deprived of his parental
rights, and was not incapable of consenting to the adoption,
which left only one issue: whether Jeremy had abandoned the
children. The court found that the evidence was undisputed
that Jeremy was unable to parent the children due to his incar-
ceration, which was a result of his choice to sexually molest
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 23 Neb. Ct. App. 351
Madysen over the course of several months. The court found
that Jeremy had expressed remorse, expressed that he missed
and loved the children, and expressed that he intended to
attend a sex offender program while incarcerated, but it found
that he was devoid of any moral sense or rectitude as to the
children, as revealed by his committing the acts he did. The
court found that Jeremy intentionally removed himself as a
parent, withholding his presence, care, love, protection, guid-
ance, and opportunity to display parental affection. The court
found that these actions amounted to abandonment pursuant
to § 43-104. The court found that as such, Jeremy’s consent
was not required and the previously appointed guardian ad
litem for the children may provide any and all consents to
the adoptions.
ASSIGNMENT OF ERROR
Jeremy assigns the county court erred by finding that
Jeremy had abandoned the children and that as such, his con-
sent to the adoption of the children was not required.
STANDARD OF REVIEW
[1,2] Appeals in adoption proceedings are reviewed by an
appellate court for error appearing on the record. Jeremiah J.
v. Dakota D., 287 Neb. 617, 843 N.W.2d 820 (2014). When
reviewing a judgment for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. Id.
ANALYSIS
Jeremy argues that the county court erred by finding that
the record showed he had abandoned the children, thereby
relinquishing the requirement that he consent to the adoption
of the children.
[3,4] The interest of parents in the care, custody, and con-
trol of their children is perhaps the oldest of the fundamental
liberty interests recognized by the U.S. Supreme Court. Id.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 23 Neb. Ct. App. 351
The foundation of Nebraska’s adoption statutes is the consent
of a biological parent to the termination of his or her parental
rights. Id.
[5] Section 43-104 states that no adoption can be decreed
unless the petition is accompanied by parental consent or
relinquishments, unless the party seeking adoption has estab-
lished that the biological parent falls within one of the excep-
tions to consent. The section applicable to this appeal is
§ 43-104(2), which provides that “[c]onsent shall not be
required of any parent who . . . has abandoned the child for
at least six months next preceding the filing of the adoption
petition.” Although § 43-104 specifies the 6 months preceding
the filing of the petition as the critical period of time during
which abandonment must be shown, the Nebraska Supreme
Court has stated that this statutory period need not be con-
sidered in a vacuum. See In re Adoption of Simonton, 211
Neb. 777, 320 N.W.2d 449 (1982). “One may consider the
evidence of a parent’s conduct, either before or after the statu-
tory period, for this evidence is relevant to a determination of
whether the purpose and intent of that parent was to abandon
his child or children.” Id. at 783, 320 N.W.2d at 453. The
parental obligation “requires continuing interest in the child
and a genuine effort to maintain communication and associa-
tion with that child. Abandonment is not an ambulatory thing
the legal effects of which a parent may dissipate at will by
token efforts at reclaiming a discarded child.” Id. at 784, 320
N.W.2d at 454. To prove abandonment in adoption proceed-
ings, 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
forgo all parental rights, together with a complete repudia-
tion of parenthood and an abandonment of parental rights and
responsibilities. In re Guardianship of T.C.W., 235 Neb. 716,
457 N.W.2d 282 (1990).
This court is mindful of the inappropriate and criminal way
in which Jeremy subjected his own daughter to sexual abuse.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 23 Neb. Ct. App. 351
However, the county court did not act as a juvenile court in
proceedings terminating Jeremy’s parental rights, but as a
county court in adoption proceedings, through which the evi-
dence must clearly and convincingly show that a parent has
acted toward the child in a manner evidencing a settled purpose
to be rid of all parental obligations and to forgo all parental
rights, together with complete repudiation of parenthood and
abandonment of parental rights and responsibilities; mere inad-
equacy is not the test. See id.
The record in this case provides evidence that although
Jeremy is incarcerated, he has continually paid and is current
with the child support obligation as ordered by the court in the
dissolution decree, has sent letters and cards to the children,
has adamantly refused to relinquish his parental rights, and has
indicated that he does not wish to forgo parental obligations or
parental rights. Jeremy’s contact with the children through let-
ters and cards fell within the 6 months immediately preceding
the filing of the petition for adoption, and as noted, Jeremy was
current on his child support obligation. The county court erred
in finding that Jeremy had abandoned the children, because the
record does not present clear and convincing evidence to prove
abandonment pursuant to § 43-104(2). Therefore, the order of
the county court must be reversed.
CONCLUSION
Upon our review of the record, we conclude that the county
court erred by terminating Jeremy’s parental rights on the
basis of abandonment pursuant to § 43-104(2) and by finding
that Jeremy’s consent was not required in order for William
to adopt the children. Therefore, we reverse the county
court’s order.
R eversed.