In re Adoption of Chase T.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/23/2016 09:09 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ADOPTION OF CHASE T.
Cite as 295 Neb. 390
In re A doption of Chase T., a minor child.
Jennifer T., appellant, v. Lindsay P.
and Jessica P., appellees.
___ N.W.2d ___
Filed December 23, 2016. No. S-15-1145.
1. Jurisdiction. Statutory authority to exercise subject matter jurisdiction
may be raised sua sponte by a court.
2. Statutes: Appeal and Error. Statutory interpretation presents a question
of law. When reviewing questions of law, an appellate court resolves the
questions independently of the conclusions reached by the trial court.
3. Jurisdiction: Appeal and Error. Before deciding the merits of an
appeal, an appellate court must determine if it has jurisdiction.
4. ____: ____. If the court from which a party appeals lacked jurisdiction,
then the appellate court acquires no jurisdiction. But 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.
5. Adoption. The matter of adoption is statutory, and the manner of proce-
dure and terms are all specifically prescribed and must be followed.
6. Adoption: Courts: Jurisdiction. Neb. Rev. Stat. § 43-104 (Reissue
2016) mandates that certain consents be filed in the county court before
an adoption can proceed, including the consent of any district court in
Nebraska having jurisdiction of the custody of the minor child.
7. Adoption: Statutes. Before holding hearings and ruling on matters in
an adoption proceeding, the county court should first consider whether
it has statutory authority to proceed with the adoption.
8. Adoption: Courts: Jurisdiction. Failure to file the consents required
by Neb. Rev. Stat. § 43-104 (Reissue 2016) is a procedural defect that is
jurisdictional in nature.
9. ____: ____: ____. Without the consents required by Neb. Rev. Stat.
§ 43-104 (Reissue 2016), a county court lacks authority, or jurisdiction,
to entertain an adoption proceeding.
- 391 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ADOPTION OF CHASE T.
Cite as 295 Neb. 390
10. Statutes: Appeal and Error. The rules of statutory interpretation require
an appellate court to give effect to the entire language of a statute, and
to reconcile different provisions of the statutes so they are consistent,
harmonious, and sensible.
11. ____: ____. The language of a statute is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
12. Adoption: Statutes. The requirement of Neb. Rev. Stat. § 43-102
(Reissue 2016) that necessary consents must be on file “prior to the
hearing” is designed to ensure that before the county court entertains a
decision on the merits in an adoption proceeding, all those required to
consent to the adoption proceeding have done so.
13. ____: ____. Although the adoption statutes no longer require that
necessary consents be filed “together with” the adoption petition, the
statutes still require that such consents be filed before a county court
holds hearings and entertains the merits of any issue in the adoption
proceeding.
14. Statutes: Presumptions: Legislature: Intent. When construing a stat-
ute, appellate courts are guided by the presumption that the Legislature
intended a sensible rather than an absurd result in enacting a statute.
15. Jurisdiction: Appeal and Error. When a lower court lacks the author-
ity to exercise its subject matter jurisdiction to adjudicate the merits of
a claim, issue, or questions, an appellate court also lacks the power to
determine the merits of the claim, issue, or question presented to the
lower court.
Appeal from the County Court for Douglas County:
Lawrence E. Barrett, Judge. Judgment vacated, and cause
remanded for further proceedings.
Angela Lennon, of Koenig Dunne Divorce Law, P.C., L.L.O.,
and George T. Babcock, of Law Offices of Evelyn N. Babcock,
for appellant.
Desirae M. Solomon, and Terry M. Anderson, of Hauptman,
O’Brien, Wolf & Lathrop, for appellees.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ADOPTION OF CHASE T.
Cite as 295 Neb. 390
Stacy, J.
NATURE OF CASE
Jennifer T. appeals from an order of the county court dis-
missing her complaint to intervene in an adoption proceeding
and denying her request to stay the adoption. We conclude
the county court lacked statutory authority to exercise subject
matter jurisdiction over the adoption proceeding, and we thus
vacate the order from which Jennifer appeals and remand the
cause to the county court for further proceedings consistent
with this opinion.
BACKGROUND
Lindsay P. and Jennifer were involved in a committed
relationship from 2001 until 2012. They never wed. In 2010,
Lindsay gave birth to a son, Chase T., conceived by artificial
insemination using an anonymous donor. Chase’s biological
father is unknown and is not a party to the adoption proceed-
ing. After Chase’s birth, Jennifer stayed home to care for him
while Lindsay worked outside the home.
In 2012, Lindsay and Jennifer separated. They continued
to coparent Chase, and agreed to a parenting schedule under
which Lindsay had Chase on Mondays and Tuesdays, Jennifer
had Chase on Wednesdays and Thursdays, and they alternated
weekend parenting time. Jennifer continued to provide daycare
for Chase while Lindsay worked. Sometime in 2015, Lindsay
married Jessica P.
On August 12, 2015, Jennifer filed a complaint against
Lindsay in the district court for Douglas County seeking to
establish custody of Chase. Jennifer alleged she stands in
loco parentis to Chase and requested that she and Lindsay be
awarded his joint legal and physical custody. According to the
parties’ attorneys, the district court custody action remains
pending and trial has been scheduled.
Approximately 1 month after the custody action was filed,
Lindsay and her wife filed a petition for stepparent adoption
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ADOPTION OF CHASE T.
Cite as 295 Neb. 390
in the county court for Douglas County. A few weeks later,
Jennifer sought to intervene in the adoption proceeding based
on her purported status as in loco parentis. Jennifer also moved
to stay the adoption proceeding pending resolution of the dis-
trict court custody action. Lindsay and Jessica objected to the
intervention and opposed the stay. After an evidentiary hear-
ing, the county court concluded Jennifer did not have standing
to intervene in the adoption based on her purported status as
in loco parentis. In an order entered November 17, 2015, the
county court dismissed Jennifer’s complaint to intervene and
overruled her motion to stay the adoption proceeding. Jennifer
timely appealed.
After perfecting the appeal, Jennifer filed a motion asking
the Nebraska Court of Appeals to stay the adoption proceed-
ing pending the outcome of her appeal. The Court of Appeals
sustained the motion and ordered the adoption proceeding
stayed. Thereafter, we moved the case to our docket on our
own motion pursuant to our statutory authority to regulate the
caseloads of the appellate courts of this state.1
ASSIGNMENTS OF ERROR
Jennifer assigns, restated and renumbered, that the county
court erred in (1) concluding it had jurisdiction over the adop-
tion, (2) exercising jurisdiction in violation of the doctrine
of jurisdictional priority, and (3) dismissing the complaint to
intervene based on a finding that she lacked standing to inter-
vene in the adoption.
STANDARD OF REVIEW
[1] Statutory authority to exercise subject matter jurisdiction
may be raised sua sponte by a court.2
1
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
2
In re Adoption of Kassandra B. & Nicholas B., 248 Neb. 912, 540 N.W.2d
554 (1995).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ADOPTION OF CHASE T.
Cite as 295 Neb. 390
[2] Statutory interpretation presents a question of law.3
When reviewing questions of law, we resolve the questions
independently of the conclusions reached by the trial court.4
ANALYSIS
[3,4] 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 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.7
Jennifer argues the county court lacked jurisdiction over
the adoption proceeding when it dismissed her complaint in
intervention and denied her motion to stay. She bases this
argument in part on Lindsay’s failure to obtain the consents
required by the adoption statutes. Specifically, Jennifer asserts
that because she had previously invoked the jurisdiction of the
district court to determine the custody of Chase, the county
court lacked authority, absent the district court’s consent, to
exercise its subject matter jurisdiction over the later-filed
adoption proceeding.
[5,6] We have long recognized that in Nebraska, the mat-
ter of adoption is statutory, and the manner of procedure and
terms are all specifically prescribed and must be followed.8
Nebraska’s adoption statutes mandate that certain consents
be filed in the county court before an adoption can proceed,
including the consent of any district court in Nebraska having
3
In re Adoption of Corbin J., 278 Neb. 1057, 775 N.W.2d 404 (2009).
4
Id.
5
In re Adoption of Jaelyn B., 293 Neb. 917, 883 N.W.2d 22 (2016).
6
Id.
7
Id.
8
In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ADOPTION OF CHASE T.
Cite as 295 Neb. 390
jurisdiction of the custody of the minor child.9 Specifically,
§ 43-104(1) provides in relevant part: “[N]o adoption shall be
decreed unless written consents thereto are filed in the county
court . . . by . . . (b) any district court . . . in the State of
Nebraska having jurisdiction of the custody of a minor child
by virtue of proceedings had in any district court.” A district
court’s written consent is shown by “a duly certified copy of
order of the court required to grant such consent.”10
[7] Our record on appeal does not contain a certified
order of the district court granting consent to proceed with
the adoption, and it is apparent from the parties’ filings and
arguments below that no such consent was obtained. Among
the arguments Jennifer presented to the county court was the
argument that the court lacked jurisdiction to proceed with the
adoption because Lindsay and Jessica had not obtained and
filed the written consent of the district court, which had pend-
ing before it a custody action involving Chase. The record
demonstrates the county court was aware the custody case
involving Chase was filed in the district court before Lindsay
and Jessica filed their adoption petition, and the parties’
pleadings and arguments in county court should have alerted
the county court to a possible jurisdictional issue. Under such
circumstances, before holding hearings and ruling on mat-
ters in the adoption proceeding, the county court should first
consider whether it has statutory authority to proceed with
the adoption.
[8,9] In In re Adoption of Kassandra B. & Nicholas B.,11
we explained that the failure to file the consents required
by § 43-104 is “a procedural defect that is jurisdictional in
nature.”12 We held that “[w]ithout requisite consents, a county
9
See Neb. Rev. Stat. § 43-104 (Reissue 2016).
10
Neb. Rev. Stat. § 43-106 (Reissue 2016).
11
In re Adoption of Kassandra B. & Nicholas B., supra note 2.
12
Id. at 920, 540 N.W.2d at 559.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ADOPTION OF CHASE T.
Cite as 295 Neb. 390
court lacks authority, or jurisdiction, to entertain an adoption
proceeding.”13 We reasoned such a conclusion was required
by the plain language of the adoption statutes and by our prior
decisional law.14 And we cautioned that “[t]he consent filing
requirements imposed [by statute] are not mere procedural
matters which can be easily disregarded or waived.”15
In In re Adoption of Kassandra B. & Nicholas B., we con-
strued the adoption statutes to require that all necessary con-
sents must be filed “‘together with’”16 the adoption petition.
And we concluded the failure to file statutory consents simulta-
neously with the adoption petition was a procedural defect that
was “jurisdictional in nature”17 and required dismissal.
After our decision in In re Adoption of Kassandra B. &
Nicholas B., Neb. Rev. Stat. § 43-102 (Reissue 2016) was
amended. Now, instead of providing that consents must be
filed “together with” the adoption petition, it provides that
consents “shall be filed prior to the hearing required in section
43-103.”18 Neb. Rev. Stat. § 43-103 (Reissue 2016) requires
the court to set a hearing on the petition for adoption within
a certain timeframe (not less than 4 weeks nor more than 8
weeks after the petition is filed), but does not expressly refer-
ence preliminary hearings. We have not previously construed
this statutory amendment or considered its impact on the rule
announced in In re Adoption of Kassandra B. & Nicholas B.
[10,11] The rules of statutory interpretation require an
appellate court to give effect to the entire language of a
13
Id. at 921, 540 N.W.2d at 559.
14
See Klein v. Klein, 230 Neb. 385, 431 N.W.2d 646 (1988) (holding
that consent granted by district court permits county court to entertain
jurisdiction over adoption proceeding).
15
In re Adoption of Kassandra B. & Nicholas B., supra note 2, 248 Neb. at
922, 540 N.W.2d at 560.
16
Id. at 919, 540 N.W.2d at 558, quoting § 43-102 (Reissue 1988).
17
Id. at 920, 540 N.W.2d at 559.
18
See 1993 Neb. Laws, L.B. 16, § 1, and 1998 Neb. Laws, L.B. 1041, § 6.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ADOPTION OF CHASE T.
Cite as 295 Neb. 390
statute, and to reconcile different provisions of the statutes so
they are consistent, harmonious, and sensible.19 The language
of a statute is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to ascer-
tain the meaning of statutory words which are plain, direct,
and unambiguous.20
[12-14] Construing the provisions of §§ 43-102, 43-103,
and 43-104 together, the requirement that necessary consents
must be on file “prior to the hearing” is designed to ensure
that before the county court entertains a decision on the merits
in an adoption proceeding, all those required to consent to the
adoption proceeding have done so. We conclude that although
the adoption statutes no longer require that necessary consents
be filed “together with” the adoption petition, the statutes still
require that such consents be filed before a county court holds
hearings and entertains the merits of any issue in the adoption
proceeding. To hold otherwise would permit a county court
to exceed its statutory authority and exercise jurisdiction over
preliminary issues in an adoption case where it may never
obtain jurisdiction to proceed to decree. When construing a
statute, appellate courts are guided by the presumption that the
Legislature intended a sensible rather than an absurd result in
enacting a statute.21
We have observed that the consent of the court “does noth-
ing more than permit the [county or juvenile] court to entertain
the adoption proceedings,”22 but the present appeal illustrates
that the district court’s consent serves another important pur-
pose: to ensure that when a custody case involving the child
is being litigated in district court, an adoption proceeding
19
Hoppens v. Nebraska Dept. of Motor Vehicles, 288 Neb. 857, 852 N.W.2d
331 (2014).
20
Huntington v. Pedersen, 294 Neb. 294, 883 N.W.2d 48 (2016).
21
In re Adoption of Luke, 263 Neb. 365, 640 N.W.2d 374 (2002).
22
Id. at 372, 640 N.W.2d at 380.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE ADOPTION OF CHASE T.
Cite as 295 Neb. 390
involving the same child does not proceed until the district
court gives consent to proceed with the adoption. In that sense,
requiring necessary court consents to be filed before entertain-
ing the merits of an issue in the adoption proceeding serves to
promote judicial efficiency and prevent an adoption court from
issuing inconsistent or premature rulings on matters affecting
the best interests of the child.
As discussed earlier, the record before us does not reflect
the district court’s consent. Absent the district court’s consent
as required by §§ 43-102 and 43-104(1)(b), the county court
lacked the statutory authority to exercise jurisdiction over the
adoption proceeding and also lacked authority to rule on the
merits of Jennifer’s intervention claim.
[15] When a lower court lacks the authority to exercise its
subject matter jurisdiction to adjudicate the merits of a claim,
issue, or question, an appellate court also lacks the power to
determine the merits of the claim, issue, or question presented
to the lower court.23 As such, our disposition of this case does
not permit us to reach the merits of whether Jennifer has the
right to intervene in the adoption proceeding.
CONCLUSION
For the foregoing reasons, we vacate the county court’s
order of November 17, 2015, and remand the cause for further
proceedings consistent with this opinion.
Judgment vacated, and cause remanded
for further proceedings.
23
State ex rel. Lamm v. Nebraska Bd. of Pardons, 260 Neb. 1000, 620
N.W.2d 763 (2001).