In re Adoption of Jaelyn B. ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/24/2016 09:09 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917In re A doption of Jaelyn B., a minor child.
Jesse B., appellant, v. Tylee H., appellee.
___ N.W.2d ___
Filed June 24, 2016. Nos. S-15-096, S-15-228.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Statutes. The meaning and interpretation of a statute present questions
of law.
3. Judgments: Appeal and Error. When reviewing questions of law,
an appellate court resolves the questions independently of the lower
court’s conclusions.
4. Jurisdiction: Appeal and Error. Before deciding the merits of an
appeal, an appellate court must determine if it has jurisdiction.
5. ____: ____. If the court from which a party appeals lacked jurisdiction,
then the appellate court acquires no jurisdiction.
6. ____: ____. An appellate court has the power to determine whether it
has jurisdiction over an appeal and to correct jurisdictional issues even
if it does not have jurisdiction to reach the merits.
7. Constitutional Law: Courts: Jurisdiction: Child Custody: Habeas
Corpus: Adoption: Declaratory Judgments. District courts have
inherent equity jurisdiction to resolve custody disputes. And they have
jurisdiction over habeas proceedings challenging adoption proceedings.
Accordingly, district courts have jurisdiction over a related declaratory
judgment action challenging the constitutionality of Nebraska adop-
tion statutes.
8. Foreign Judgments: Jurisdiction: States. A judgment rendered in a
sister state court which had jurisdiction is to be given full faith and
credit and has the same validity and effect in Nebraska as in the state
rendering judgment.
9. Constitutional Law: States: Statutes: Public Policy. Nebraska is not
constitutionally required to give effect to a sister state’s statutes that are
contrary to the public policy of this state.
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IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 91710. Paternity: Child Custody: Time. In Nebraska, a paternity acknowledg-
ment operates as a legal finding of paternity after the rescission period
has expired. And a father whose paternity is established by a final, vol-
untary acknowledgment has the same right to seek custody as the child’s
biological mother, even if genetic testing shows he is not the biologi-
cal father.
11. Paternity. Under Neb. Rev. Stat. § 43-1402 (Reissue 2008), establish-
ment of paternity by acknowledgment is the equivalent of establishment
of paternity by a judicial proceeding.
12. Constitutional Law: Foreign Judgments: States. The Full Faith and
Credit Clause requires states to give the same effect to a judgment
in the forum state that it has in the state where the court rendered
the judgment.
13. Constitutional Law: Foreign Judgments: States: Paternity. Neb.
Rev. Stat. § 43-1406(1) (Reissue 2008) extends the full faith and credit
requirement for judgments to a sister state’s paternity determination
established through a voluntary acknowledgment.
14. Foreign Judgments: States: Paternity: Adoption. Whether a paternity
acknowledgment in a sister state gives an acknowledged father the right
to block an adoption in Nebraska depends upon whether the acknowl-
edgment confers that right in the state where it was made.
15. Interventions. Under Neb. Rev. Stat. § 25-328 (Reissue 2008), to be
entitled to intervene in an action, an intervenor must have a direct and
legal interest. The intervenor must lose or gain by the direct operation
and legal effect of the judgment that may be rendered in the action.
16. Foreign Judgments: States: Paternity: Adoption: Parental Rights.
When the law of a sister state legally determines that an acknowledged
father has the full rights of a natural father who can withhold consent to
an adoption, that father is not a “man” within the meaning of Neb. Rev.
Stat. § 43-104.22(11) (Reissue 2008).
17. Judgments: Collateral Attack: Paternity. The collateral attack rules
that apply to a judgment also apply to a voluntary acknowledgment of
paternity that has the same effect as a judgment.
18. Constitutional Law: Appeal and Error. An appellate court will gen-
erally not decide a constitutional issue that was not presented to the
trial court.
Appeals from the County Court for Douglas County:
M arcena M. Hendrix, Judge. Reversed and remanded with
directions to vacate.
George T. Babcock, of Law Offices of Evelyn N. Babcock,
and Jennifer Gaughan, of Legal Aid of Nebraska, for appellant.
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293 Nebraska R eports
IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917Shawn D. Renner and Susan K. Sapp, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, and
Cassel, JJ., and Pirtle and R iedmann, Judges.
Connolly, J.
I. SUMMARY
In these consolidated cases, and a companion case,1 the
appellant, Jesse B., challenged the adoption of his daughter,
Jaelyn B. These consolidated appeals arise from the adoption
proceeding in county court. Jesse attempted to intervene to
challenge the court’s authority to exercise jurisdiction over the
adoption proceeding. Jesse is Jaelyn’s legal father under Ohio
statutes. Those statutes provide that he has a right to notice of
a proceeding to adopt Jaelyn and that his consent is required.
Jesse claimed that Nebraska must give full faith and credit to
Ohio’s determination of his paternity. He also claimed that the
court lacked subject matter jurisdiction because he had not
consented to Jaelyn’s adoption.
Despite Ohio statutes that give Jesse paternity rights, the
county court concluded that Nebraska’s adoption statutes did
not require Jesse’s consent to Jaelyn’s adoption because genetic
testing showed that another man was Jaelyn’s biological father.
Accordingly, the county court did not allow Jesse to intervene.
Later, it issued an adoption decree.
We conclude that Neb. Rev. Stat. 43-1406(1) (Reissue
2008) requires Nebraska to give full faith and credit to Ohio’s
paternity determination. Giving full faith and credit includes
giving effect to Ohio’s determination that Jesse must con-
sent to Jaelyn’s adoption. Because he did not consent, we
conclude that the county court erred in disestablishing his
paternity through an adoption decree. We reverse the judg-
ment and remand the cause with directions for the county
court to vacate its decree. We deal with the custody issues
1
See Jesse B. v. Tylee H., post p. 973, ___ N.W.2d ___ (2016).
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IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917going forward in Jesse’s separate habeas corpus appeal from
the district court.
II. BACKGROUND
Before setting out the facts and resolving some of the issues
under Ohio’s statutes, we set out the judicial notice principles
that apply here. A court may judicially notice adjudicative
facts, which are not subject to reasonable dispute, at any stage
of the proceeding.2 In interwoven and interdependent cases,
we can examine our own records and take judicial notice of
the proceedings.3
1. Jesse’s Voluntary Acknowledgment
of Paternity and Jaelyn’s
Birth Certificate
Jaelyn was born in Ohio in April 2013. The next day,
the mother, Heather K., and Jesse signed before a notary an
“Acknowledgment of Paternity Affidavit,” affirming that Jesse
was Jaelyn’s father. The instructions provided that both the
mother and the father had to sign the acknowledgment and
have each signature notarized. The form explained that the
purpose of the paternity affidavit “is to acknowledge the legal
existence of a father and child relationship through voluntary
paternity establishment.” The signature certification required
each parent to affirm that he or she had read both sides of the
affidavit. On the back, the acknowledgment included a notice
of the parties’ rights and responsibilities. First, the man sign-
ing the form assumed the parental duty of support. Second, the
notice provided that Ohio statutes limited the signatories’ right
to rescind it:
Both parents who sign this paternity affidavit waive any
right to bring a court action to establish paternity pursu-
ant to sections 3111.01 to 3111.18 of the Revised Code
2
Bauermeister Deaver Ecol. v. Waste Mgmt. Co., 290 Neb. 899, 863
N.W.2d 131 (2015).
3
Id.- 921 -
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IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917or make a request for an administrative determination
of a parent and child relationship pursuant to section
3111.38 of the Revised Code, other than a court action
filed for purposes of rescinding the paternity affidavit.
The notice explained that in some circumstances, a signatory
could seek an administrative rescission of the acknowledgment
within 60 days. A signatory could also file a court action to
rescind it for fraud, duress, or mistake of fact. But a signa-
tory had to commence a court action after the 60-day period
for requesting an administrative rescission expired and within
1 year after “the paternity affidavit becomes final pursuant to
sections 2151.232, 3111.25 or 3111.821” of Ohio’s statutes.
The form also provided that if the law presumed another man
to be the father, the parties could not sign a paternity acknowl-
edgment. The notice defined a presumed father to include a
man who had signed an acknowledgment of paternity that was
on file with the “Ohio Department of Job & Family Services”
but was not yet final. Finally, the notice provided that either
parent had the right to request genetic testing at no charge
instead of signing the acknowledgment.
Heather and Jesse were later named as Jaelyn’s mother and
father on her birth certificate. It was recorded in Ohio’s office
of vital statistics on June 3, 2013.
2. Jesse’s R elationship With
Heather and Jaelyn
In the Nebraska adoption proceeding, the county court
received Jesse’s affidavit for deciding whether he could inter-
vene. In the affidavit, Jesse stated some background facts
regarding his relationship with Heather and Jaelyn. Jesse met
Heather in Omaha in June 2012, and they began living together
in July. That month, they learned that Heather was pregnant.
Jesse stated that he supported her financially and emotionally
throughout the pregnancy. In March 2013, they moved to Ohio
to live with Jesse’s parents. Jesse was present at Jaelyn’s birth
and took an active role in caring for her.
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293 Nebraska R eports
IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917According to Jesse, Heather left Jaelyn with Jesse and his
parents about the middle of September 2013 to pursue a rela-
tionship with a man she met on the Internet. Before she left,
she signed the paperwork to give Jesse’s mother custody of
Jaelyn. But at the end of September, Heather returned and
asked to take Jaelyn for a weekend visit. She never returned
Jaelyn. Jesse visited Jaelyn once in Cleveland, Ohio, about 2
weeks later, but Heather would not allow Jaelyn to return with
him. Later, Jesse learned that Heather had obtained a dismissal
of an Ohio case to give custody of Jaelyn to Jesse’s mother.
Instead, she returned to Nebraska with Jaelyn. She refused
to allow Jesse to see Jaelyn, and at some point, she blocked
his telephone calls. The last time Jesse communicated with
Heather was on Christmas in 2013.
In Jesse’s motion to dismiss the adoption proceeding, he
attached a copy of a letter from Heather to a judge in the Ohio
Court of Common Pleas. In the letter, Heather requested a dis-
missal of the custody petition for Jaelyn. She stated that she
had decided to retain custody of Jaelyn and return to Nebraska.
The letter was dated October 7, 2013. Another attachment
showed that the Ohio court dismissed the custody case on the
same day.
3. A doption Notification
and Commencement of
Judicial Proceedings
In January 2014, Jesse received adoption paperwork from
Heather’s Nebraska attorney, Kelly Tollefsen. The letter stated
that Heather had identified Jesse as a possible biological
father and intended to relinquish Jaelyn for an adoption. It
informed him that if he intended to claim paternity and seek
custody, he should obtain his own attorney, or he could sign
the enclosed forms for relinquishing Jaelyn and consent-
ing to her adoption. In his affidavit, Jesse stated that he had
contacted Tollefsen but that she would not provide him with
any information about the adoption. He could not afford an
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293 Nebraska R eports
IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917attorney and did not obtain legal assistance in Nebraska until
later that spring.
In June 2014, Jesse filed a complaint in Lancaster County
District Court for a writ of habeas corpus and a declaratory
judgment. In that action, he challenged the constitutionality of
Nebraska’s adoption statutes that permitted Jaelyn’s adoption
without his consent. And he claimed that Nebraska must give
full faith and credit to Ohio’s paternity determination. On July
22, Jesse sued for custody in the Ohio Court of Common Pleas.
On July 30, Jesse filed an objection to the adoption of Jaelyn
and a request for notice of any adoption proceeding for Jaelyn
in Douglas County Court. In August, Tylee H., the prospective
adoptive parent, filed a petition to adopt Jaelyn in Douglas
County Court.
4. Ohio Court Proceedings
A March 2015 order from the Ohio Court of Common Pleas
shows that in September 2014, Tylee moved to intervene in
Jesse’s custody action (after she filed a Nebraska petition for
adoption in August). Tylee sought a dismissal of Jesse’s cus-
tody case, but the Ohio court continued the matter and ordered
a home study. In October, Tylee moved for a finding that Jesse
was not Jaelyn’s biological father and asked for a dismissal.
The Ohio court again continued the matter and ordered the par-
ties to file briefs. In February 2015, Tylee filed a notice of a
final adoption in Nebraska. The Douglas County Court entered
the Nebraska adoption decree on January 15, 2015.
The Ohio court stated that Jesse’s rights regarding an adop-
tion were established by the acknowledgment of paternity.
The court concluded that “[p]aternity is not an issue because
[Jesse] is the legal father of Jaelyn . . . . This court is curious
as to why this child was adopted in another jurisdiction when
this matter has been pending since July 22, 2014.” It continued
the matter for “pre-trial on the issue of custody.” At oral argu-
ments before this court, Jesse’s attorney stated that the Ohio
custody proceeding was still pending.
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Nebraska A dvance Sheets
293 Nebraska R eports
IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 9175. County Court Proceedings
(a) Parties’ Pleadings
In Jesse’s objection to the adoption, he alleged that under
Ohio law, his acknowledgment was a determination of his
paternity as though Jaelyn were born to him during marriage.
He believed that a person named “Tylee” or someone else
would seek Jaelyn’s adoption and would claim that he was
a putative father. He objected to any adoption and requested
notice of any adoption petition or hearing. He also alleged that
he had filed a habeas proceeding in district court to challenge
Jaelyn’s detention. He requested that the county court hold any
adoption petition in abeyance until the district court resolved
the claims in his habeas proceeding.
As stated, in August 2014, Tylee filed an adoption petition
in Douglas County Court. She alleged that Heather had relin-
quished Jaelyn in February 2014 and that Jaelyn had lived with
Tylee for more than 6 months. Tylee alleged that Jesse was not
Jaelyn’s biological father. She claimed that she did not need
his consent because he had not filed an administrative request
for notification of an adoption or an administrative objection
to an adoption. She acknowledged that Jesse had filed a cus-
tody action in Ohio but claimed that the Ohio court lacked
jurisdiction for unstated reasons. She requested that the court
order Jesse to submit to genetic testing.
In September 2014, Jesse moved to intervene in the adop-
tion proceeding. He attached a copy of his paternity acknowl-
edgment. He alleged that the U.S. Constitution and Nebraska’s
§ 43-1406 required the county court to give full faith and
credit to his paternity determination under Ohio law. Citing
this court’s decision in Cesar C. v. Alicia L.,4 he alleged that
he was also Jaelyn’s legal parent under Nebraska law. Finally,
he alleged that he had a constitutionally protected relationship
with Jaelyn that required his consent to her adoption and that
4
Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011).
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IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917he had not given it. He cited the case number for his pend-
ing custody case in Ohio and again informed the court of the
habeas corpus proceeding in district court.
Tylee objected to Jesse’s motion to intervene. She alleged
that Heather had named two possible biological fathers and
that genetic testing had shown that Jaelyn’s biological father
was Tyler T., who had relinquished his parental rights. And
Nebraska’s adoption statutes require consent only from a bio-
logical father. She alleged that Jesse’s paternity acknowledg-
ment created only a rebuttable presumption of paternity and
that genetic testing had rebutted the presumption. Because
Nebraska’s statutes did not require Jesse’s consent, she claimed
that he did not have sufficient interest to intervene.
Jesse responded with a motion to dismiss the adoption
proceeding. He alleged that the court lacked subject mat-
ter jurisdiction and could not grant an adoption because he
had not consented to it. He alleged that he was a necessary
party because of his constitutionally protected relationship with
Jaelyn. Additionally, he alleged that under Ohio law, Heather
had waived her right to a judicial paternity determination
because she signed the paternity acknowledgment and did not
seek a rescission. He again alleged that the court must give full
faith and credit to Ohio’s paternity determination. He claimed
that Tylee and her attorney had committed a fraud on the court
by characterizing him as a putative father.
(b) Adoption Hearings
At the hearing on Jesse’s motion to intervene, the court
received Heather’s February 2014 relinquishment of Jaelyn
specifically for adoption by Tylee. It also admitted evidence
that Jesse had filed an action in district court. He argued that
the district court therefore had jurisdiction over the matter.
Tylee countered that the county court had exclusive jurisdiction
over an adoption.
Jesse objected to genetic testing results that showed Tyler
was Jaelyn’s biological father. He argued that the evidence
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293 Nebraska R eports
IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917lacked foundation and was irrelevant because he was Jaelyn’s
legal father. He argued that Nebraska’s putative father statutes
do not apply to a child’s legal father and that for such men,
an adoption proceeding is a collateral attack on a prior pater-
nity determination.
Tylee argued that neither Jesse’s paternity acknowledgment
nor Jaelyn’s birth certificate gave Jesse standing to block
Jaelyn’s adoption. She argued that under Nebraska law, he was
only a putative father whose consent was not required. Tylee
acknowledged that Nebraska law excuses an adjudicated father
from the 5-day time limit for filing an administrative objec-
tion5 and that he can still file an objection in county court.
But she argued that if genetic testing excludes that man as the
biological father, he still has no right to block an adoption. She
contended that there was no prior “judgment” to collaterally
attack. The court admitted the testing results.
(c) County Court’s Orders
In December 2014, the county court denied Jesse’s motion to
intervene. The court stated that Jesse had never filed an admin-
istrative objection, never contested the adoption in county
court, and never asked a county court to determine whether
his consent was required. It concluded that the genetic testing
results were relevant and admissible. It reasoned that Neb. Rev.
Stat. §§ 43-104.05(3) and 43-104.22(11) (Reissue 2008) render
a man’s consent to an adoption unnecessary if a court deter-
mines that he is not the child’s biological father.
The court reasoned that the putative father statutes, read
as a whole, affirmed this conclusion. It noted that under Neb.
Rev. Stat. § 43-104.12 (Reissue 2008), the statutory notice of
the mother’s intent to relinquish custody for an adoption only
informs a “biological father or possible biological fathers” of
his right to deny paternity or relinquish custody and consent to
5
See In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).
See, also, Neb. Rev. Stat. §§ 43-104.01(7) and 43-104.25 (Reissue 2008).
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IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917an adoption. And the men who must receive this notice include
a child’s adjudicated father or a man listed on the child’s birth
certificate as the father.6 Similarly, the notice only informs the
recipient of the rights of a biological father or “possible bio-
logical fathers.”7
The county court correctly recognized that we have held the
5-day time limit for filing an administrative objection does not
apply to adjudicated fathers or undisputed biological fathers
who have an established familial relationship with their child.8
But it concluded that § 43-104.22(11) still governed whether
a legal father must consent to an adoption. It determined that
§ 43-104.22(11) made Jesse’s consent unnecessary because he
was not the biological father. Therefore,
this Court need not determine whether [Jesse] should be
called a putative (possible) or adjudicated (“legal”) father,
or whether [he] did or did not establish a familial relation-
ship with [Jaelyn] (a fact which is in dispute), because
section 43-103.22 applies no matter which word is used
to describe [Jesse’s] status as to this minor child born out
of wedlock.
Accordingly, the county court determined that Jesse lacked
standing to block the adoption because he had no interest that
entitled him to intervene. In January 2015, the court entered a
decree of adoption.
III. ASSIGNMENTS OF ERROR
Jesse assigns that the court erred in: (1) denying Jesse’s
motion to intervene; (2) failing to give Ohio’s paternity deter-
mination full faith and credit; (3) concluding that his consent
to the adoption was unnecessary; (4) admitting genetic testing
results and disestablishing his paternity under §§ 43-104.05(3)
6
See § 43-104.12(1) to (3).
7
See Neb. Rev. Stat. § 43-104.13 (Reissue 2008).
8
See, In re Adoption of Corbin J., 278 Neb. 1057, 775 N.W.2d 404 (2009);
In re Adoption of Jaden M., supra note 5.
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IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917and 43-104.22(11); (5) excluding evidence of his established
familial relationship and jurisdiction; (6) determining that it
had jurisdiction over the adoption; and (7) entering a decree
of adoption.
Additionally, Jesse assigns (1) that Nebraska’s putative
and unwed father statutes violate the Due Process and Equal
Protection Clauses of the U.S. and Nebraska Constitutions
and (2) that these constitutional guarantees require a trial
court to appoint counsel for indigent parents who object to the
involuntary termination of their parental rights through adop-
tion proceedings.
IV. STANDARD OF REVIEW
[1-3] A jurisdictional issue that does not involve a factual
dispute presents a question of law.9 The meaning and interpre-
tation of a statute present questions of law.10 When reviewing
questions of law, we resolve the questions independently of the
lower court’s conclusions.11
V. ANALYSIS
[4-6] Before deciding the merits of an appeal, an appellate
court must determine if it has jurisdiction.12 If the court from
which a party appeals lacked jurisdiction, then the appellate
court acquires no jurisdiction.13 But we have the power to
determine whether we have jurisdiction over an appeal and to
correct jurisdictional issues even if we do not have jurisdiction
to reach the merits.14
9
Pearce v. Mutual of Omaha Ins. Co., ante p. 277, 876 N.W.2d 899 (2016).
10
See Adair Asset Mgmt. v. Terry’s Legacy, ante p. 32, 875 N.W.2d 421(2016).
11
Pearce, supra note 9.
12
See In re Interest of Jackson E., ante p. 84, 875 N.W.2d 863 (2016).
13
Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640, 861 N.W.2d
425 (2015).
14
See id.- 929 -
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293 Nebraska R eports
IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 9171. County Court Incorrectly Ignored
or Failed to P roperly R esolve
Jurisdictional Questions
Jesse’s pleadings and attachments in county court should
have alerted the county court to possible jurisdictional issues
under state and federal law. First, both parties alleged that
Jesse had commenced a custody dispute in Ohio that was still
pending. These allegations raised a jurisdictional issue under
the federal Parental Kidnapping Prevention Act of 1980.15
In particular, under that federal act, the record fails to show
that the court determined whether the Ohio court was prop-
erly exercising jurisdiction over a custody dispute involving
these parties.
Second, Jesse alleged that he had previously commenced
a habeas and declaratory judgment action in district court to
challenge Jaelyn’s detention. This allegation raised an issue
under the jurisdictional priority doctrine.16
[7] The county court apparently agreed with Tylee that
it had exclusive jurisdiction to decide all matters related to
adoption proceedings. It is true that under Neb. Rev. Stat.
§ 43-102 (Reissue 2008), a county court or juvenile court
will ordinarily have jurisdiction over an adoption proceeding.
But district courts have inherent equity jurisdiction to resolve
custody disputes.17 And they have jurisdiction over habeas
proceedings challenging adoption proceedings.18 Accordingly,
district courts have jurisdiction over a related declaratory
15
See 28 U.S.C. § 1738A(g) (2012).
16
See, Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014);
Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013).
17
See Charleen J., supra note 16.
18
See, e.g., Monty S. & Teresa S. v. Jason W. & Rebecca W., 290 Neb. 1048,
863 N.W.2d 484 (2015); Brett M. v. Vesely, 276 Neb. 765, 757 N.W.2d 360(2008); Flora v. Escudero, 247 Neb. 260, 526 N.W.2d 643 (1995); Uhing
v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992); Shoecraft v. Catholic
Social Servs. Bureau, 222 Neb. 574, 385 N.W.2d 448 (1986).
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Cite as 293 Neb. 917judgment action challenging the constitutionality of Nebraska
adoption statutes.19 In short, the county court’s statutory juris-
diction over the adoption petition did not give it exclusive
jurisdiction to resolve challenges to Nebraska’s adoption stat-
utes that could have foreclosed the adoption. In both courts,
Jesse claimed that his relationship with Jaelyn was constitu-
tionally protected and that Nebraska was required to give full
faith and credit to Ohio’s determination of his paternity. So,
the separate proceedings raised the same material issues and
involved the same parties. And Jesse filed the action in district
court first.
We point out these jurisdictional errors to guide county
courts in future adoption cases. But our decision rests on the
jurisdictional question that the county court did not address. It
failed to determine under § 43-1406 whether it must give full
faith and credit to Ohio’s determination that Jesse’s consent
was required. Because § 43-1406 requires Nebraska to recog-
nize Ohio’s paternity determination, the court lacked jurisdic-
tion to decree an adoption without his consent.
2. R ecognizing Jesse’s Parental
R ights Is Not Contrary to
Nebraska’s Public Policy
Section 43-1406(1) requires this state to give full faith and
credit to another’s state’s paternity determination: “A deter-
mination of paternity made by any other state, whether estab-
lished through voluntary acknowledgment, genetic testing, or
administrative or judicial processes, shall be given full faith
and credit by this state.”
Tylee contends that Nebraska should not recognize Jesse’s
parental rights under Ohio’s statutes. She argues that doing so
would conflict with the public policy reflected in Nebraska’s
adoption statutes. She claims that a distinction exists between
19
See Neb. Rev. Stat. §§ 25-21,149 (Reissue 2008) and 25-21,150 (Cum.
Supp. 2014).
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Cite as 293 Neb. 917giving effect to another state court’s judgment and giving effect
to another state’s statutes that are contrary to Nebraska’s adop-
tion statutes. She contends that the doctrine of comity is inap-
propriate here because § 43-104.22(11) makes a legal father’s
consent to an adoption irrelevant if he is not the biological
father. And she contends that Jesse’s legal status cannot trump
the desires of Jaelyn’s natural mother and father to permit
an adoption.
Leaving aside the irony of Tylee’s argument that the rights
of an uninvolved and unsupportive biological father are more
significant than those of a legal father who has financially sup-
ported his child and participated in rearing her, she misstates
Nebraska’s public policy.
[8] “The Full Faith and Credit Clause of U.S. Const. art.
IV, § 1, provides in part that ‘Full Faith and Credit shall be
given in each State to the Public Acts, Records, and judicial
Proceedings of every other State.’”20 A “judgment rendered
in a sister state court which had jurisdiction is to be given
full faith and credit and has the same validity and effect in
Nebraska as in the state rendering judgment.”21
[9] It is true that we have recognized Nebraska is not consti-
tutionally required to give effect to a sister state’s statutes that
are contrary to the public policy of this state:
[T]he Full Faith and Credit Clause does not compel a
state to substitute the statutes of another state for its own
statutes, with regard to “judgments, however, the full faith
and credit obligation is exacting.” . . . [A] “forum state
need not give application to the statute of another state
where the statute is in conflict with the laws or policy of
the forum[.]” . . . [W]hile a Nebraska court would not be
required to grant an adoption pursuant to California stat-
utes when such adoption would not be permitted under
20
In re Trust Created by Nixon, 277 Neb. 546, 549-50, 763 N.W.2d 404, 408
(2009).
21
Id. at 550, 763 N.W.2d at 408.
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IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917Nebraska statutes, a Nebraska court may not refuse to
recognize the judgment consisting of an adoption decree
validly entered by a California court.22
Revealingly, however, Tylee never discusses § 43-1406(1)
in her brief. And we cannot conclude that recognizing Jesse’s
parental rights under Ohio law is contrary to Nebraska’s public
policy when the Legislature, through § 43-1406(1), specifically
requires this recognition.
(a) Recognizing a Person’s Relationship
Status Under a Sister State’s Laws
Is Not Limited to Judgments
Section 43-1406(1)’s requirement that Nebraska recognize
a sister state’s paternity determination mirrors Neb. Rev. Stat.
§ 42-117 (Reissue 2008). That statute requires courts to rec-
ognize legal marriages in other states even if they would be
invalid in Nebraska: “All marriages contracted without this
state, which would be valid by the laws of the country in which
the same were contracted, shall be valid in all courts and places
in this state.”
And usually, no judgment exists in a sister state finding a
valid common-law marriage. Instead, Nebraska courts have
applied the law of the sister state to determine a party’s legal
marital status.23 So, our common-law marriage cases illus-
trate that resolving the full faith and credit issue does not
always turn on whether a judgment conferring a legal sta-
tus exists. This is consistent with recognizing another state’s
“[p]ublic [a]cts.”24
Similarly, in a will dispute, we applied the law of a sister
state to conclude that a parent-child relationship existed under
22
Id. at 551, 763 N.W.2d at 409 (citation omitted) (emphasis in original).
23
See, Spitz v. T.O. Haas Tire Co., 283 Neb. 811, 815 N.W.2d 524 (2012);
Randall v. Randall, 216 Neb. 541, 345 N.W.2d 319 (1984); In re Estate of
Schenck, 5 Neb. App. 736, 568 N.W.2d 567 (1997). See, also, Millatmal v.
Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006).
24
See U.S. Const. art. IV, § 1.
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IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917a California statute that created that legal status if a man had
publicly acknowledged a child as his own and received the
child into his family.25 So, we have previously recognized a
man’s legal status as a child’s father that rested on a statutory
paternity determination, not a court’s judgment.
And contrary to Tylee’s arguments, in Cesar C. v. Alicia
L.,26 we recognized that a paternity acknowledgment signed in
Nebraska confers legal parental rights the same as a judgment
of paternity. We turn to that decision.
(b) An Acknowledged Father
in Nebraska Is Also a
Child’s Legal Father
[10] In Nebraska, as in Ohio, a paternity acknowledgment
operates as a legal finding of paternity after the rescission
period has expired.27 At that point, the acknowledged father is
the child’s legal father, not a presumed father. And under Cesar
C., a father whose paternity is established by a final, voluntary
acknowledgment has the same right to seek custody as the
child’s biological mother, even if genetic testing shows he is
not the biological father.28
There, the mother was arrested on drug charges after she and
the acknowledged father signed a paternity acknowledgment;
the father retained custody while she was in prison. After she
was released, she took the child without his consent. He sought
a judgment of paternity and child support from the mother.
The mother countered by filing a separate action in which she
obtained an order for genetic testing, which excluded him as
the biological father. She then sought summary judgment in the
acknowledged father’s paternity action. The trial court deter-
mined that the mother had a superior right to custody because
25
See Riddle v. Peters Trust Co., 147 Neb. 578, 24 N.W.2d 434 (1946).
26
Cesar C., supra note 4.
27
See Neb. Rev. Stat. §§ 43-1402 and 43-1409 (Reissue 2008).
28
See Cesar C., supra note 4.
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Cite as 293 Neb. 917she was not unfit, but awarded the father visitation rights and
ordered him to pay child support.
[11] We reversed that judgment. We found plain error
because the trial court failed to give the proper legal effect
to the paternity acknowledgment. We explained that under
§ 43-1409, after the rescission period expired, the acknowl-
edgment became a legal finding, and the mother had not chal-
lenged that finding for fraud, duress, or material mistake of
fact. We noted that the Legislature added the “‘legal finding’”
provision to comply with a federal mandate as a condition for
financial aid.29 And we explicitly stated that under § 43-1402,
“establishment of paternity by acknowledgment is the equiva-
lent of establishment of paternity by a judicial proceeding.”30
We concluded that the genetic testing results were irrelevant
and that the court erred in failing to treat the action as a cus-
tody and support dispute between two legal parents.
Tylee incorrectly argues that Cesar C. is distinguishable
because the father filed a paternity action. He was not trying
to establish his paternity for the first time in that action. He
was asking the court to recognize his statutory legal finding
of paternity, return his child, and impose child support obli-
gations on the mother. The important point is that we held
the paternity acknowledgment gave him the same right to
seek custody of his child as the mother, despite genetic test-
ing showing that he was not the biological father. We did not
limit that holding to a custody dispute between the signatories
of an acknowledgment. Instead, we relied on § 43-1409’s
explicit statement that an acknowledgment becomes a legal
finding after the rescission period. And under that holding,
it would be a strange result if a legal father nonetheless had
no right to seek custody if the mother unilaterally decided to
relinquish her child for adoption. But we need not decide that
issue here.
29
Id. at 988, 800 N.W.2d at 256.
30
Id. at 986, 800 N.W.2d at 255.
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IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917We agree with Jesse that if he had voluntarily acknowledged
his paternity in Nebraska, we would recognize his status as
Jaelyn’s legal father. In Cesar C., the acknowledged father’s
equal right to seek custody was directly tied to his paternity
acknowledgment. To hold that recognizing Jesse’s rights under
Ohio’s statutes is contrary to Nebraska’s public policy would
directly conflict with our recognition of an acknowledged
father’s parental rights under Nebraska’s statutes.
[12-14] The Full Faith and Credit Clause requires states to
give the same effect to a judgment in the forum state that it has
in the state where the court rendered the judgment.31 Section
43-1406(1) extends that requirement for judgments to a sister
state’s paternity determination established through a voluntary
acknowledgment. We note that most states probably have some
version of § 43-1406(1) because Congress has mandated that
states adopt this provision to obtain grants to provide aid to
needy families.32 The federal statute ensures uniform recog-
nition and enforcement of child support orders based on a
foreign state’s determination of a man’s paternity.33 Because
the Legislature complied with this requirement, it could not
have simultaneously intended to give it a restricted meaning
that forecloses courts from applying it to adoption proceed-
ings. So whether a paternity acknowledgment in a sister state
gives an acknowledged father the right to block an adoption in
Nebraska depends upon whether the acknowledgment confers
that right in the state where it was made.34 In Ohio, Jesse has
that right.
31
In re Trust Created by Nixon, supra note 20.
32
See, 42 U.S.C. § 666(a)(5)(C)(iv) (2012); Burden v. Burden, 179 Md.
App. 348, 945 A.2d 656 (2008); 23 Am. Jur. 2d Desertion and Nonsupport
§§ 73 and 74 (2013).
33
See, e.g., H.M. v. E.T., 14 N.Y.3d 521, 930 N.E.2d 206, 904 N.Y.S.2d 285(2010).
34
See Matter of Gendron, 157 N.H. 314, 950 A.2d 151 (2008). See, also, In
re Mary G., 151 Cal. App. 4th 184, 59 Cal. Rptr. 3d 703 (2007); Burden,
supra note 32.
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Cite as 293 Neb. 9173. Ohio Parentage Statutes
Ohio’s parentage statutes35 create a parent-child relationship
that does not require a court order. Under § 3111.02(A), the
“parent and child relationship between a child and the natural
father of the child may be established by an acknowledgment
of paternity as provided in sections 3111.20 to 3111.35.” Under
§ 3111.01(A), the term
“parent and child relationship” means the legal relation-
ship that exists between a child and the child’s natural
or adoptive parents and upon which [§§ 3111.01 to
3111.85] and any other provision of the Revised Code
confer or impose rights, privileges, duties, and obliga-
tions. The “parent and child relationship” includes the
mother and child relationship and the father and child
relationship.
Under § 3111.03, a man is presumed to be a child’s natural
father when an acknowledgment of paternity has been properly
filed but has not yet become final. But under § 3111.25, an
acknowledgment of paternity is final and enforceable
without ratification by a court when the acknowledg-
ment has been filed with the office of child support, the
information on the acknowledgment has been entered in
the birth registry, and the acknowledgment has not been
rescinded and is not subject to possible rescission pursu-
ant to section 3111.27 . . . .
(Emphasis supplied.)
And under § 3111.27, either signatory can seek an adminis-
trative rescission of the acknowledgment if he or she requests
a paternity determination within 60 days of the last signature.
Under Ohio’s § 3111.26, “[a]fter an acknowledgment of pater-
nity becomes final and enforceable, the child is the child of the
man who signed the acknowledgment of paternity, as though
born to him in lawful wedlock.” Here, neither party asked for
an administrative paternity determination within 60 days of
35
See Ohio Rev. Code Ann. §§ 3111.01 to 3111.85 (LexisNexis 2008).
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Cite as 293 Neb. 917signing the acknowledgment on April 16, 2013. Heather acqui-
esced in the establishment of Jesse’s paternity despite her later
acknowledgment that another man could have been Jaelyn’s
father. So after June 16, 2013, neither Heather nor Jesse could
seek an administrative rescission under § 3111.27. It was a
final paternity determination.
Under Ohio’s § 3111.38.1, if neither signatory requested an
administrative paternity determination within the 60-day time
limit, Ohio’s paternity statutes preclude bringing a paternity
action, apart from specified exceptions. But these exceptions
do not include disestablishing a man’s paternity in an adop-
tion proceeding.
To the contrary, Ohio statutes require a legal father’s consent
to an adoption. Under § 3107.06,
[u]nless consent is not required under section 3107.07
of the Revised Code, a petition to adopt a minor may be
granted only if written consent to the adoption has been
executed by all of the following:
(A) The mother of the minor;
(B) The father of the minor, if any of the follow-
ing apply:
....
(4) He acknowledged paternity of the child and that
acknowledgment has become final . . . .36
Section 3107.07 lists exceptions to the consent require-
ment.37 It excludes a putative father from the consent require-
ment if he failed to comply with the putative father registra-
tion requirements. But for legal parents, the exceptions to the
consent requirement are more limited and do not appear to
apply here.
Finally, Ohio’s § 3111.28 permits a court action to rescind
a paternity acknowledgment for “fraud, duress, or material
mistake of fact.” The action can be brought by either of the
36
Ohio Rev. Code Ann. § 3107.06 (LexisNexis Supp. 2009).
37
Ohio Rev. Code Ann. § 3107.07 (LexisNexis Supp. 2009).
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Cite as 293 Neb. 917signatories, a man presumed to be the father, or a person who
did not sign the acknowledgment, presumably including the
actual biological father if he was not a signatory. But a signa-
tory must bring the action within 1 year of the acknowledg-
ment’s becoming final. Heather never brought an action to
rescind the acknowledgment. So, she has lost that right and
Ohio law precludes her from disestablishing Jesse’s paternity
in an adoption proceeding.
In sum, under Ohio’s statutes, Jesse is Jaelyn’s father, not
her presumed or putative father. And he has the right to give
or refuse his consent to her adoption. Under § 43-1406(1),
Nebraska courts must extend full faith and credit to Ohio’s
determination of Jesse’s paternity and his accompanying rights
to withhold his consent to Jaelyn’s adoption. So, Nebraska is
not a sanctuary state to avoid the law of the state where the
child was born. Permitting this adoption would defeat the
purpose of § 43-1406(1), which requires Nebraska to give full
faith and credit to Ohio’s act. The county court erred in failing
to recognize Jesse’s legal status and apply Ohio’s law to deter-
mine his parental rights.
4. Nebraska’s Statutes Do Not Permit
County Courts to Disestablish a
Legal Father’s Paternity Through
an A doption Decree
[15] Under the general intervention statute,38 to be enti-
tled to intervene in an action, an intervenor must have a
direct and legal interest. The intervenor must lose or gain
by the direct operation and legal effect of the judgment that
may be rendered in the action.39 The county court relied on
§§ 43-104.05(3) and 43-104.22(11) to conclude that Jesse’s
consent to Jaelyn’s adoption was not required. But we con-
clude that these statutes do not authorize a county court to
38
Neb. Rev. Stat. § 25-328 (Reissue 2008).
39
See In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
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Cite as 293 Neb. 917disestablish an a­cknowledged father’s parental rights under
another State’s paternity determination.
Section 43-104.05 sets out the requirements for a putative
father’s petition to establish paternity of his child born out
of wedlock. Under this section, a putative father can only
file such a petition if he previously filed an administrative
objection to a child’s adoption within 5 days of the child’s
birth or receiving notice of the mother’s intent to relinquish
custody. At that proceeding, if the mother challenges the
putative father’s paternity, the court can order genetic testing
and determine that his consent to an adoption is not required
under § 43-104.22(11). Similarly, Neb. Rev. Stat. § 43-104(4)
(Reissue 2008) provides that “[c]onsent shall not be required
of an adjudicated or putative father who is not required to con-
sent to the adoption pursuant to section 43-104.22.” But Jesse
is neither an adjudicated father nor a putative father. He is an
acknowledged father.
We have stated that “to terminate a father’s rights through
an adoption procedure, the consent of the adjudicated father
of a child born out of wedlock is required for the adoption
to proceed unless the Nebraska court having jurisdiction over
the custody of the child determines otherwise, pursuant to
§ 43-104.22.”40 That section sets out 11 circumstances under
which consent to an adoption is not required from “an adjudi-
cated biological father or putative biological father of a minor
child born out of wedlock.” Six subsections in § 43-104.22 refer
to a “father,” two refer to a “putative father,” and one refers to
“an adjudicated biological father.” Section 43-104.22(6) elimi-
nates the consent requirement if the child “was conceived as a
result of a nonconsensual sex act or an incestual act.” Only the
last one, § 43-104.22(11), refers to a “man”: A man’s consent
to an adoption is not required if “[t]he man is not, in fact, the
biological father of the child.”
40
Jeremiah J. v. Dakota D., 287 Neb. 617, 623, 843 N.W.2d 820, 826
(2014).
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IN RE ADOPTION OF JAELYN B.
Cite as 293 Neb. 917[16] But we conclude that Jesse is not a “man” within the
meaning of § 43-104.22(11). He is Jaelyn’s legal father under
Ohio law. To hold otherwise would be inconsistent with the
requirement under § 43-1406(1) that Nebraska give full faith
and credit to another state’s paternity determination. As we
have explained, to do that, we must look to the effect of that
determination under Ohio law, which gives an acknowledged
father the full rights of a natural father who can withhold
consent to an adoption. And in Ohio,41 as in Nebraska,42 the
statutory determination of Jesse’s paternity has the effect of
a judgment.
[17] For judgments, collateral attacks on previous proceed-
ings are impermissible unless the attack is grounded upon the
court’s lack of jurisdiction over the parties or subject mat-
ter.43 Only a void judgment is subject to collateral attack.44
The same rules apply to a voluntary acknowledgment of
paternity that has the same effect as a judgment. Tylee has
not attacked Jesse’s paternity determination for procedural
or jurisdictional defects, nor do we see any grounds for such
a challenge. We conclude that the court erred in determin-
ing that §§ 43-104.05 and 43-104.22 authorized it to forgo
Jesse’s consent.
Although Jesse urges us to address his due process and
equal protection claims, we decline to do so. Jesse concedes
that he did not explicitly raise his due process challenges
to Nebraska’s adoption statutes in the county court, and he
did not raise an equal protection challenge at all. But he
claims that he was unfairly deprived of an opportunity to
raise these issues because the county court did not allow him
to intervene.
41
See § 3111.13.
42
See Cesar C., supra note 4, citing § 43-1409.
43
Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012).
44
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Cite as 293 Neb. 917[18] An appellate court will generally not decide a consti-
tutional issue that was not presented to the trial court.45 We
recognize that in Jesse’s motion to intervene, he claimed his
familial relationship with Jaelyn was constitutionally protected.
But because we conclude that § 43-1406 requires Nebraska to
give full faith and credit to Ohio’s paternity determination, we
need not reach Jesse’s constitutional claims. And contrary to
Jesse’s arguments, they will not recur on remand because we
have determined that the county court must vacate its decree.
Although they may recur in future cases, the Legislature may
yet address these issues statutorily, making a constitutional
analysis unnecessary.
Similarly, Jesse’s claim that he was entitled to appointed
counsel in an involuntary adoption proceeding to terminate his
parental rights rests on his constitutional claims and was not
presented to the trial court. Accordingly, we do not address that
issue here.
VI. CONCLUSION
We conclude that the county court erred in failing to give
full faith and credit to Ohio’s determination of Jesse’s pater-
nity. Section 43-1406(1) requires Nebraska to recognize his
status, the same as if an Ohio court had entered a judgment
of paternity. And full faith and credit means that Nebraska
courts must give Jesse’s paternity the same effect that it
would have in Ohio. Because Jesse’s consent is required
under Ohio law, the county court could not disestablish his
paternity without his consent in Nebraska. Because we con-
clude that § 43-1406 requires Nebraska to give full faith and
credit to Ohio’s paternity determination, we do not reach
Jesse’s constitutional challenges to Nebraska’s statutes or his
claim that he was entitled to appointed counsel to challenge
the adoption.
45
See Lindner v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013).
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Cite as 293 Neb. 917We conclude that the adoption decree is invalid, and there-
fore, we reverse the judgment and remand the cause with
directions for the county court to vacate its decree. We are,
of course, sympathetic to the heartache that undoing these
errors will cause the parties after this much time. But we can-
not ignore our duty to uphold Jesse’s parental rights under
Ohio law.
Because we conclude that the court erred in exercising juris-
diction over this adoption petition, we do not set out instruc-
tions here for custody determinations going forward. Instead,
we instruct the district court to resolve these issues in the
companion case.
R eversed and remanded with
directions to vacate.
Stacy, J., not participating.