In re Adoption of Madysen S.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/27/2016 09:05 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 293 Neb. 646In 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 May 27, 2016. No. S-15-032.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction over an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken.
4. Judgments: Final Orders: Words and Phrases. A judgment is the
final determination of the rights of the parties in an action.
5. ____: ____: ____. A final judgment is one that disposes of the case
either by dismissing it before hearing is had upon the merits, or after
trial by rendition of judgment for the plaintiff or defendant.
6. Judgments: Words and Phrases. Every direction of a court or judge,
made or entered in writing and not included in a judgment, is an order.
7. Final Orders: Appeal and Error. The general rule prohibiting immedi-
ate appeals from interlocutory orders seeks to avoid piecemeal appeals
arising out of the same set of operative facts, chaos in trial procedure,
and a succession of appeals in the same case to secure advisory opinion
to govern further actions of the trial court.
8. ____: ____. There are only limited exceptions to the general rule that
interlocutory orders are not immediately appealable.
9. Words and Phrases. A substantial right is an essential legal right, not a
mere technical right.
10. Final Orders. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
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IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 293 Neb. 64611. ____. Whether the effect of an order is substantial depends upon
whether it affects with finality the rights of the parties in the sub-
ject matter.
12. Final Orders: Appeal and Error. Having a substantial effect on a
substantial right depends most fundamentally on whether the right could
otherwise effectively be vindicated through an appeal from the final
judgment.
13. ____: ____. Generally, an immediate appeal from an order is justified
only if the right affected by the order would be significantly undermined
or irrevocably lost by waiting to challenge the order in an appeal from
the final judgment.
14. Adoption. The matter of adoption is statutory, and the manner of proce-
dure and terms are all specifically prescribed and must be followed.
15. Adoption: Parent and Child: Parental Rights. Consent of a biological
parent to the termination of his or her parental rights is the foundation of
our adoption statutes, and an adoption without such consent must come
clearly within the exceptions contained in the statutes.
16. Adoption: Abandonment: Parental Rights. In an adoption proceed-
ing, the county court does not terminate parental rights upon a finding
of abandonment; the court thereby merely eliminates the need for the
abandoning parent’s consent and authorizes the execution of substi-
tute consent.
17. Adoption: Parent and Child. A determination regarding parental con-
sent, a finding under Neb. Rev. Stat. § 43-104(2) (Reissue 2008), or
a determination regarding substitute consent does not end the court’s
inquiry as to whether the petition for adoption should be approved.
18. Adoption: Final Orders. An order in an adoption proceeding is not
final if the underlying adoption is still under consideration by the
county court.
19. Minors: Adoption: Abandonment: Final Orders. In the context of
whether an order is final, a finding under Neb. Rev. Stat. § 43-104(2)(b)
(Reissue 2008) in an ongoing adoption proceeding is distinguishable
from an adjudication of a child as abandoned under Neb. Rev. Stat.
§ 43-247(3) (Supp. 2015) of the juvenile code.
20. Standing: Jurisdiction. As an aspect of jurisdiction and justiciabil-
ity, standing requires that a litigant have such a personal stake in the
outcome of a controversy as to warrant invocation of a court’s juris-
diction and justify the exercise of the court’s remedial powers on the
litigant’s behalf.
21. Adoption: Standing: Parent and Child: Parental Rights. Even after a
finding of abandonment under Neb. Rev. Stat. § 43-104(2)(b) (Reissue
2008), a parent in adoption proceedings continues to have a personal
stake in the outcome of the litigation and standing to contest the
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Nebraska A dvance Sheets
293 Nebraska R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 293 Neb. 646pending issue of whether the adoption is in the child’s best interests,
because an evidentiary finding on best interests affects whether the par-
ent retains his or her parental rights.
22. Minors: Adoption: Abandonment: Final Orders. Allowing interlocu-
tory appeals from findings of abandonment under Neb. Rev. Stat.
§ 43-104(2)(b) (Reissue 2008) would only delay adoption proceedings,
which ultimately is to the detriment of the child who is the subject of the
adoption petition.
23. Adoption: Parent and Child: Abandonment. A finding under Neb.
Rev. Stat. § 43-104(2)(b) (Reissue 2008) that the consent of the par-
ent who has abandoned the child is not required is not a final, appeal-
able order.
Petition for further review from the Court of Appeals, Irwin,
Inbody, and R iedmann, Judges, on appeal thereto from the
County Court for Lincoln County, Michael E. Piccolo, Judge.
Judgment of Court of Appeals reversed, and cause remanded
with directions.
Todd M. Jeffers, of Brouillette, Dugan & Troshynski, P.C.,
L.L.O., for appellant.
Angela M. Franz and Patrick M. Heng, of Waite, McWha &
Heng, for appellees.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
Wright, J.
NATURE OF CASE
This is an appeal from an interlocutory order of the county
court in a stepparent adoption proceedings finding that the
natural father abandoned his children and therefore his consent
to the adoption would not be required. We find that the order
appealed from is not a final order, and the Nebraska Court of
Appeals and this court lack jurisdiction over the appeal.
BACKGROUND
Nicole K. and Jeremy S. were married, and three children
were born of the marriage. Madysen S. was born in February
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IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 293 Neb. 6462001, Orion S. was born in January 2004, and Leo S. was born
in November 2005. The family lived in Missouri.
In 2007, Madysen, who was then 6 years old, reported that
Jeremy had been sexually abusing her for more than a year.
Jeremy was arrested and charged with first degree statutory
sodomy—deviate sexual intercourse with a person less than 14
years old and four counts of first degree child molestation.
Nicole moved with the children to Nebraska and filed for
divorce. The decree of dissolution was entered in July 2007.
The decree granted sole custody of the children to Nicole and
stated that Jeremy “shall not have any parenting time.” The
court ordered Jeremy to pay $50 per month in child support.
In August 2009, pursuant to a plea agreement, Jeremy was
convicted of three counts of child molestation. He was commit-
ted to a total term of 16 years’ confinement in Missouri.
Nicole married William K. in 2013. In 2014, Nicole and
William simultaneously filed in the county court for Lincoln
County, the county where the children reside, a petition for
adoption by a stepparent and a “Petition to Terminate Parental
Rights” for each child. The petitions asked that the court
approve the adoption of the children by William. Jeremy
opposed the adoptions. He refused to voluntarily relinquish
his parental rights and consent to the adoptions. The peti-
tions asked the court to find that Jeremy had abandoned the
children, as provided under Neb. Rev. Stat. § 43-104 (Reissue
2008), such that Jeremy’s consent to the adoptions would not
be required.
A hearing was held on the consolidated “Petition[s] to
Terminate Parental Rights.” Nicole testified that she allowed
the children to visit their extended family on Jeremy’s side,
but asked Jeremy’s family not to allow any contact between
the children and Jeremy. Jeremy indicated that he had not seen
the children since he was arrested, approximately 7 years prior
to the filing of the petitions. While incarcerated, he sent the
children cards and letters. He also occasionally listened over
the telephone to the children talk to his family members when
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IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 293 Neb. 646they visited them. Jeremy consistently paid the $50 per month
in child support ordered in the dissolution decree. The child
support was paid by Jeremy’s mother.
The county court issued an order on the consolidated
“Petition[s] to Terminate Parental Rights.” However, the court
acknowledged that in adoption proceedings, it is the adoption
itself which terminates the parental rights, and that until the
adoption is granted, the parental rights are not terminated.1
And a “Petition to Terminate Parental Rights,” as such, is not a
pleading provided for in the adoption statutes.
The county court’s order found that Jeremy had abandoned
his children for purposes of § 43-104. Accordingly, the court
ordered that Jeremy’s consent would not be required for the
adoptions and that the guardian ad litem could provide all sub-
stitute consents as may be required by statute. The hearing on
the adoptions was scheduled and is still pending.
In finding that Jeremy abandoned his children, the court
stated that Jeremy was “unavailable to parent his children.”
The court noted that this unavailability was due to incarcera-
tion stemming from “his depraved choice to sexually molest
his own daughter multiple times over the course of several
months.” The court also reasoned that Jeremy abandoned his
children by virtue of the “negligible and supervised contact”
with his children for the past 7 years. Jeremy had not acted
as a “significant parental figure” for his children for most of
their lives.
Jeremy appealed from the order finding that he abandoned
his children and that his consent to the stepparent adoptions
was not required. The Court of Appeals reversed.2 The Court
of Appeals explained that the only issue was whether Jeremy
abandoned the children; i.e., whether he had acted in a manner
evidencing a settled purpose to be rid of all parental obliga-
tions and to forgo all parental rights.
1
See In re Guardianship of Sain, 211 Neb. 508, 319 N.W.2d 100 (1982).
2
In re Adoption of Madysen S. et al., 23 Neb. App. 351, 871 N.W.2d 265(2015).
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IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 293 Neb. 646The Court of Appeals concluded that the record did not
support a finding upon clear and convincing evidence that
Jeremy had abandoned his children. It noted that although
Jeremy was incarcerated, he had continually paid his child
support obligation, had sent letters and cards to the children,
and had adamantly refused to relinquish his parental rights.
We granted Nicole and William’s petition for further
review.
ASSIGNMENT OF ERROR
Nicole and William assign on further review that the
Court of Appeals erred in determining that there was insuf-
ficient evidence to support the county court’s finding of
abandonment.
STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law.3
ANALYSIS
[2,3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.4 For an appellate court to
acquire jurisdiction over an appeal, there must be a final order
or final judgment entered by the court from which the appeal
is taken.5
[4-6] A judgment is the final determination of the rights of
the parties in an action.6 We have said that a final judgment
is one that disposes of the case either by dismissing it before
hearing is had upon the merits, or after trial by rendition of
judgment for the plaintiff or defendant.7 Conversely, every
3
State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015).
4
Id.5
Id.6
Neb. Rev. Stat. § 25-1301 (Reissue 2008).
7
See, e.g., Kometscher v. Wade, 177 Neb. 299, 128 N.W.2d 781 (1964).
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IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 293 Neb. 646direction of a court or judge, made or entered in writing and
not included in a judgment, is an order.8
The final judgment in proceedings under an adoption peti-
tion is an order granting or denying adoption. Such a final
judgment is yet to be rendered in this case. Therefore, we
must determine whether the order of the county court finding
that Jeremy had abandoned his children and that his consent
will not be required for the adoptions under consideration is a
final order.
[7,8] In general, this court prohibits immediate appeals
from interlocutory orders so as to avoid piecemeal appeals
arising out of the same set of operative facts, chaos in trial
procedure, and a succession of appeals in the same case to
secure advisory opinion to govern further actions of the trial
court.9 There are only limited exceptions to the general rule
that interlocutory orders are not immediately appealable.10
Because adoption proceedings are special proceedings,11 the
question presented is whether the order falls under the excep-
tion that it was “an order affecting a substantial right made
in a special proceeding” under Neb. Rev. Stat. § 25-1902(Reissue 2008).
[9-11] A substantial right is an essential legal right, not a
mere technical right.12 It is a right of “substance.” But it is
not enough that the right itself be substantial; the effect of the
order on that right must also be substantial.13 We have said
that an order “affects” a substantial right if it “‘affects the
subject matter of the litigation, such as diminishing a claim or
defense that was available to the appellant prior to the order
8
Huskey v. Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014).
9
State v. Jackson, supra note 3.
10
Id.
11
In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
12
Furstenfeld v. Pepin, 287 Neb. 12, 840 N.W.2d 862 (2013).
13
State v. Jackson, supra note 3.
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Cite as 293 Neb. 646from which he or she is appealing.’”14 We have also said that
“[w]hether the effect of an order is substantial depends upon
‘whether it affects with finality the rights of the parties in the
subject matter.’”15
[12,13] Having a substantial effect on a substantial right
depends most fundamentally on whether the right could other-
wise effectively be vindicated through an appeal from the final
judgment.16 We have said that an order affects a substantial
right when the right would be “‘significantly undermined’”17
or “‘irrevocably lost’”18 by postponing appellate review. The
duration of the order is also relevant to whether there is sub-
stantial effect on the substantial right.19 Generally, an immedi-
ate appeal from an order is justified only if the right affected
by the order would be significantly undermined or irrevocably
lost by waiting to challenge the order in an appeal from the
final judgment.
Having given the parties the opportunity to respond to juris-
dictional issues raised sua sponte by this court, we conclude
that the order appealed in this case concerned an important
right, but there is no irreparable harm caused by postponing
appeal of the order until the final judgment is entered in the
14
Id. at 914, 870 N.W.2d at 138.
15
Id., quoting In re Estate of Peters, 259 Neb. 154, 609 N.W.2d 23 (2000).
16
See State v. Jackson, supra note 3. See, also, Abney v. United States, 431
U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); In re Estate of Rose,
273 Neb. 490, 730 N.W.2d 391 (2007); State v. Jacques, 253 Neb. 247,
570 N.W.2d 331 (1997); State v. Milenkovich, 236 Neb. 42, 458 N.W.2d
747 (1990).
17
State v. Jackson, supra note 3, 291 Neb. at 914, 870 N.W.2d at 138. See,
also, State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003); State v.
Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997).
18
State v. Jackson, supra note 3, 291 Neb. at 914, 870 N.W.2d at 138. See,
also, State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006); State v. Wilson,
15 Neb. App. 212, 724 N.W.2d 99 (2006).
19
State v. Jackson, supra note 3. See, also, In re Interest of T.T., 18 Neb.
App. 176, 779 N.W.2d 602 (2009).
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IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 293 Neb. 646adoption proceedings. We reach this conclusion based on our
examination of the adoption procedures, which are set forth in
chapter 43, article 1, of the Nebraska Revised Statutes.
[14,15] The matter of adoption is statutory, and the man-
ner of procedure and terms are all specifically prescribed and
must be followed.20 Consent of a biological parent to the ter-
mination of his or her parental rights is the foundation of our
adoption statutes, and an adoption without such consent must
come clearly within the exceptions contained in the statutes.21
As relevant to a child born in lawful wedlock, § 43-104(2)
provides that consent shall not be required of any parent who
(a) has relinquished the child from adoption by written instru-
ment, (b) has abandoned the child for at least 6 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.
In addition to the consent of the biological parents,
§ 43-104(1) requires the consent of any district court, county
court, or separate juvenile court in Nebraska having juris-
diction of the custody of the minor child by virtue of prior
proceedings in those courts or by virtue of the Uniform Child
Custody Jurisdiction and Enforcement Act. This includes dis-
trict courts that have issued a dissolution decree concerning the
minor child.22
[16,17] The county court does not terminate parental rights
upon a finding of abandonment; the court thereby merely
eliminates the need for the abandoning parent’s consent and
authorizes the execution of substitute consent.23 A determina-
tion regarding parental consent, a finding under § 43-104(2), or
20
In re Adoption of Kassandra B. & Nicholas B., 248 Neb. 912, 540 N.W.2d
554 (1995).
21
See, id.; In re Adoption of Carlson, 137 Neb. 402, 289 N.W. 764 (1940).
22
See Smith v. Smith, 242 Neb. 812, 497 N.W.2d 44 (1993).
23
See In re Guardianship of Sain, supra note 1.
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Cite as 293 Neb. 646a determination regarding substitute consent does not end the
court’s inquiry as to whether the petition for adoption should
be approved.
Upon a hearing, if the statutory requirements are otherwise
satisfied, the court may decree an adoption only after finding
that such adoption is for the best interests of the child.24 As
stated, the decree granting or denying the petition for adoption
after such a determination of the child’s best interests is the
final judgment and is, therefore, appealable.
In Klein v. Klein,25 we held that an order of a district court
having continuing jurisdiction over the child pursuant to a dis-
solution decree and granting consent to an adoption was not a
final, appealable order. We reasoned that the order of consent
to adoption did not resolve the issue of adoption and only
meant that the parent would have to defend against the petition
for adoption in county court.26 We explained that the parent
could wait to appeal from the final judgment, which would be
the order of adoption.27
[18] Klein dealt with a district court’s order consenting to
an adoption, and not a county court’s order determining as a
preliminary matter that a parent’s consent in the pending adop-
tion proceedings was unnecessary due to abandonment and that
substitute consent would therefore be required. But our implicit
reasoning in Klein that a parent could effectively vindicate his
or her rights by waiting until an appeal from the final judgment
of adoption supports the broad proposition that an order in an
adoption proceeding is not final if the underlying adoption
is still under consideration by the county court. Because the
underlying adoption is still under consideration upon an inter-
locutory finding of abandonment, such interlocutory finding is
not immediately appealable.
24
See Neb. Rev. Stat. § 43-109 (Cum. Supp. 2014).
25
Klein v. Klein, 230 Neb. 385, 431 N.W.2d 646 (1988).
26
See id.27
See id.- 656 -
Nebraska A dvance Sheets
293 Nebraska R eports
IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 293 Neb. 646Abandonment for purposes of adoption is not always deter-
mined in proceedings separate from the underlying adoption
and set forth by an order separate from a final judgment, as it
was in the case at bar. Certainly nothing in the adoption stat-
utes requires bifurcated proceedings.
[19] We have specifically stated in a different context
that the relationship between abandonment and termination of
parental rights in adoption proceedings is different from the
relationship between abandonment and termination of parental
rights in proceedings under the juvenile code.28 We conclude
that, in the context of whether an order is final, a finding
under § 43-104(2)(b) in an ongoing adoption proceeding is
distinguishable from an adjudication of a child as abandoned
under Neb. Rev. Stat. § 43-247(3) (Supp. 2015) of the juve-
nile code.
Unlike a finding under § 43-104(2)(b), adjudication under
the juvenile code ends a discreet phase of inherently multi­
faceted proceedings in the juvenile court.29 Furthermore,
unlike a finding of abandonment in adoption proceedings,
statutory procedures surrounding adjudication in juvenile
court oftentimes result in an immediate and real effect on
parenting time that would be irrevocably lost by postponing
appellate review.30 Jeremy fails to illustrate how a finding of
abandonment in adoption proceedings, in contrast, has any
real and immediate effect on parental obligations, visitation,
custody, or other matters pertaining to the parent’s contact
with the child during the pendency of the final judgment
granting or denying the petition for adoption. It does not
follow that because orders of adjudication and disposition
28
See In re Guardianship of Sain, supra note 1.
29
John P. Lenich, What’s So Special About Special Proceedings? Making
Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001).
30
See, In re Guardianship of Sain, supra note 1; Neb. Rev. Stat. § 43-245(Supp. 2015).
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Cite as 293 Neb. 646under the juvenile code are immediately appealable,31 all
orders determining abandonment under § 43-104(2)(b) are
likewise immediately appealable before rendition of the
final judgment.
Parental rights are not terminated by an order deciding
the limited issue of abandonment under § 43-104(2)(b).
Since the parent, despite a finding of abandonment under
§ 43-104(2)(b), retains parental rights until the final judgment
denying or granting the petition for adoption, the parent may
still participate in the proceedings to present evidence that
adoption is not in the child’s best interests. Ultimately, if the
county court finds that the adoption is not in the child’s best
interests, then the rights of the parent, who was deemed under
§ 43-104(2)(b) to have abandoned the child, are returned to
the status quo.
Jeremy does not adequately explain how his parental rights
would be significantly lost or undermined by postponing
appellate review of a determination of abandonment under
§ 43-104(2)(b) until the final judgment has been entered in the
adoption proceedings. We are unconvinced that such finding
results in a substantial effect on an important right, which can-
not be adequately vindicated on appeal from the final judgment
in the adoption proceedings. Thus, there is no justification for
an immediate and piecemeal appeal from the important, but
ultimately preliminary, matter of abandonment, which requires
appointment of a guardian ad litem in order to obtain the nec-
essary substitute consent.
Granted, if the county court later determines the adoption
is in the child’s best interests, the finding of abandonment
proves significant. But the adoption itself and the concurrent
termination of parental rights does not take effect while an
appeal from the final judgment granting the adoption is pend-
ing. No significantly greater harm to the parent or child results
31
See, e.g., In re Interest of V.T. and L.T., 220 Neb. 256, 369 N.W.2d 94(1985).
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Cite as 293 Neb. 646from an erroneous determination of abandonment if reversed in
an appeal after the final judgment as opposed to being reversed
in an immediate appeal from the interlocutory order finding
abandonment. In other words, the rights at issue in an inter-
locutory determination of abandonment under § 43-104(2)(b)
can be adequately vindicated through an appeal of the final
judgment granting or denying the adoption.
Although we held in In re Adoption of David C.32 that a
finding of abandonment in bifurcated adoption proceedings
is a final, appealable order, we did so under the finding that
abandonment by the putative biological father terminates the
parental relationship. We did not consider our case law estab-
lishing that it is the adoption, not the finding of abandonment
under § 43-104(2)(b), that terminates parental rights. Nor did
we consider whether parental rights could be terminated before
conducting a best interests analysis. By failing to consider
the fact that the parent retained parental rights even after a
finding of abandonment under § 43-104(2)(b), we incorrectly
surmised, “An order of abandonment disturbs the parent’s rela-
tionship with the child forever because the parent no longer has
any right to be a part of the adoption proceedings. Once the
relationship is terminated, the parent has no standing to object
to the adoption.”33
[20,21] Standing refers to whether a party had, at the com-
mencement of the litigation, a personal stake in the outcome of
the litigation that would warrant a court’s or tribunal’s exercis-
ing its jurisdiction and remedial powers on the party’s behalf.34
As an aspect of jurisdiction and justiciability, standing requires
that a litigant have such a personal stake in the outcome of a
controversy as to warrant invocation of a court’s jurisdiction
and justify the exercise of the court’s remedial powers on the
32
In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010).
33
Id. at 723-24, 790 N.W.2d at 209.
34
Field Club v. Zoning Bd. of Appeals of Omaha, 283 Neb. 847, 814 N.W.2d
102 (2012).
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Cite as 293 Neb. 646litigant’s behalf.35 Even after a finding of abandonment under
§ 43-104(2)(b), a parent in adoption proceedings continues
to have a personal stake in the outcome of the litigation and
standing to contest the pending issue of whether the adoption
is in the child’s best interests, because an evidentiary finding
on best interests affects whether the parent retains his or her
parental rights.36
A somewhat similar situation was recently presented in In
re Adoption of Douglas,37 wherein the Massachusetts Supreme
Judicial Court explained that until parental rights have been
terminated by entry of a decree, parents have the right to par-
ticipate in the proceedings, including the “best interests” hear-
ing. The court explained that deferring the entry of a termina-
tion decree until after completion of a best interests hearing on
issues such as adoption and visitation permits the proceedings
to be expedited, while preserving a parent’s right to participate
in the hearing and maintaining the parent’s standing to chal-
lenge the resulting adoption or similar order on appeal.38
[22] There are only limited exceptions to the general rule
prohibiting immediate appeals from orders that fail to finally
determine the rights of the parties in the action. The general
rule prohibiting interlocutory appeals is based in significant
part upon the fact that immediate appeals from interlocutory
orders unnecessarily prolong the ultimate resolution of the
case. Allowing interlocutory appeals from findings of abandon-
ment under § 43-104(2)(b) would only delay adoption proceed-
ings, which ultimately is to the detriment of the child who is
the subject of the adoption petition.
[23] To the extent that In re Adoption of David C. recognized
jurisdiction over an interlocutory appeal of an abandonment
35
Hawkes v. Lewis, 255 Neb. 447, 586 N.W.2d 430 (1998).
36
See In re Guardianship of Sain, supra note 1. See, also, e.g., In re L. Y. L.,
101 Cal. App. 4th 942, 124 Cal. Rptr. 2d 688 (2002).
37
In re Adoption of Douglas, 473 Mass. 1024, 45 N.E.3d 595 (2016).
38
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IN RE ADOPTION OF MADYSEN S. ET AL.
Cite as 293 Neb. 646determination under § 43-104(2)(b), we overrule that deci-
sion.39 We also disapprove of In re Guardianship of T.C.W.40 to
the extent that, by entertaining an appeal from the district court
that had reviewed an order finding abandonment before finally
determining the adoption petition, we implicitly held the inter-
locutory order was a final, appealable order. We expressly
hold that a finding under § 43-104(2)(b) that the consent of
the parent who has abandoned the child is not required is not
a final, appealable order. Such an order does not finally decide
the rights of the parent. It is the decree of adoption that finally
decides the rights of the parent in such circumstances.
Accordingly, we hold that the order of the county court
finding that Jeremy had abandoned his children and that his
consent to the adoptions was not required was not a final,
appealable order. The current appeal must be dismissed for
lack of jurisdiction.
CONCLUSION
The county court’s order finding, under § 43-104(2)(b), that
Jeremy’s consent would not be required for the adoptions under
consideration does not fall under one of the limited exceptions
to the general rule that interlocutory orders are not immediately
appealable. We conclude our finding will ultimately reduce
any delay in adoption proceedings. Because the order appealed
from was not a final order, we, as did the Court of Appeals, lack
jurisdiction over this appeal. We reverse the order of the Court
of Appeals and remand the cause with directions to vacate its
opinion and dismiss the appeal for lack of jurisdiction.
R eversed and remanded with directions.
39
See In re Adoption of David C., supra note 32.
40
In re Guardianship of T.C.W., 235 Neb. 716, 457 N.W.2d 282 (1990).