understanding adoption procedures in nebraska - … · web viewin light of the obergefell v. hodges...

2017 NSBA Annual Meeting

Family Law Section SeminarAdoption Issues in the Modern World; The Ethics of

Representing a Stressed Out, Difficult Client

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

October 13, 2017Embassy Suites La Vista

UPDATES IN NEBRASKA ADOPTION LAW

October 2017

Susan K. Sapp, J.D.CLINE WILLIAMS

WRIGHT JOHNSON & OLDFATHER, L.L.P.Attorneys at Law

233 South 13th Street Sterling Ridge1900 U.S. Bank Bldg. 12910 Pierce Street, Suite 200Lincoln, NE 68508 Omaha, NE 68144

1207 M Street Northern Heights Professional PlazaP.O. Box 510 416 Valley View Drive, Suite 304Aurora, NE 68818 Scottsbluff, NE 69361

330 South College AvenueSuite 300

Fort Collins, CO 80524

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

SUSAN K. [email protected]

(402) 474-6900

Practice Areas:

Administrative Litigation Business Litigation Employment Litigation Health Care Labor and Employment Personal Injury and Wrongful Death Professional Liability and Licensing

Admitted to Practice:

NebraskaIowa United States District Court for the

District of NebraskaUnited States Court of Appeals for the

Eighth Circuit

Education:University of Nebraska, J.D., with high

distinction, 1989University of Nebraska, B.S., 1986

SUSAN K. SAPPPractice Emphasis:Susan has a general civil trial practice which includes labor and employment issues, medical and legal malpractice defense and insurance defense. She represents school districts, hospitals, doctors, employers and insurance companies in all aspects of legal representation. She also handles all aspects of adoption proceedings, and was the legislative drafter for LB 712 (1995), LB 1014 (1998), LB 247 (2007) and LB 744 (2016) adoption legislation. In addition, Susan serves as mediator in personal injury and employment cases.

Other Experience/Achievements:

Fellow, American Academy of Adoption Attorneys

Associate, American Board of Trial Advocates

Listed: Best Lawyers in America (Woodward/White, Inc.) (Employment Law-Management)

Named: Best Lawyers' 2013 Lincoln Labor Law - Management Lawyer of the Year

Listed: Chambers USA, America's Leading Lawyers for Business (Chambers & Partners Publishing) (Litigation: Insurance)

Listed: Great Plains Super Lawyers (Personal Injury-Medical Malpractice Defense; Personal Injury General Defense; Schools & Education)

Fellow, Litigation Counsel of America Fellow, Nebraska State Bar Foundation Past President and Member, Nebraska

Council of School Attorneys Member, American Trial Lawyers

Association Member, National Association of Trial

Attorneys Vice-Chair, Nebraska State Bar

Association Continuing Legal Education Section

Past Chair, District One Committee on

http://www.clinewilliams.com/practice-areas/health-care

http://www.clinewilliams.com/practice-areas/professional-liability-and-licensing/

http://www.clinewilliams.com/practice-areas/personal-injury-and-wrongful-death/

http://www.clinewilliams.com/practice-areas/labor-and-employment/

http://www.clinewilliams.com/practice-areas/employment-litigation/

http://www.clinewilliams.com/practice-areas/business-litigation/

http://www.clinewilliams.com/practice-areas/administrative-litigation/

mailto:[email protected]

Inquiry for Attorney Discipline Board Member, Child Guidance Center Research and Case Note Editor,

Nebraska Law Review, 1987-1988 Order of the Coif

ADOPTION BASICS

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

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

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

43-101. Children eligible for adoption.

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

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

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jurisdiction of a juvenile court, jurisdiction remains in that county, irrespective of where the adoptive parents reside.

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

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

43-104. Adoption; consent required; exceptions.

(1) Except as otherwise provided in this section and in the Nebraska Indian Child Welfare Act, no adoption shall be decreed unless written consents thereto are filed in the county court of the county in which the person or persons desiring to adopt reside or in the county court in which the separate juvenile court having jurisdiction over the custody of the child is located and the written consents are executed by (a) the minor child, if over fourteen years of age, or the adult child, (b) any district court, county court, or separate juvenile court in the State of Nebraska having jurisdiction of the custody of a minor child by virtue of proceedings had in any district court, county court, or separate juvenile court in the State of Nebraska or by virtue of the Uniform Child Custody Jurisdiction and Enforcement Act, and (c) both parents of a child born in lawful wedlock if living, the surviving parent of a child born in lawful wedlock, the mother of a child born out of wedlock, or both the mother and father of a child born out of wedlock as determined pursuant to sections 43-104.08 to 43-104.25. On and after April 20, 2002, a written consent or relinquishment for adoption under this section shall not be valid unless signed at least forty-eight hours after the birth of the child.

f. Was the child born in or out of wedlock? Will the other biological parent consent to the adoption? If so, obtain the name and address of the other biological parent for

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

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

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

i. Obtain the following information from the clients:

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

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

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

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

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

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

Birth Father Issues

Remember this is sometimes sensitive or uncomfortable, and it is best

if you have taken the time to get to know your clients before asking about

either partner’s sexual relationships. Ask early on if the child knows he or

she is being adopted and address any special issues to determine if what the

client wants to do is feasible—e.g, doesn’t want to tell the child he or she is

being adopted. The next step is determining what categorie(s) of birth

father you are dealing with and set your strategy. Most step-parent

adoptions deal with older children and older children adoptions are the most

difficult kind of adoption in Nebraska at this time.

1. Non-Adjudicated Birth Fathers

Non-adjudicated/putative birth father(s) have the right to claim

paternity of the child by filing with Health and Human Services a Notice of

Objection to Adoption and Intent to Obtain Custody anytime during the

pregnancy and as late as five business days after the birth of the child, or if

notice occurs after birth, within five business days of his receipt of the

earliest notice. See § 43-104.02.

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

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

The statutes provide that the rights of any putative biological father to object

to the adoption shall not be recognized in any court unless he first files with

Health and Human Services, on a form provided by the Department, a Notice

of Objection to Adoption and Intent to Obtain Custody. A notice post-marked

within the five business day period will satisfy the provisions of the statute.

Unless the specific Notice of Objection to Adoption and Intent to Obtain

Custody form is filed within five business days, the birth father’s right to

object to the adoption is not further recognized. If this claim is filed,

however, this does not mean the birth father automatically obtains custody

of the child or even the right to custody of the child. His filing triggers the

right of himself, the birth mother, or an agent specifically designated by the

birth mother to file a petition in the county court of the county where the

child was born for an adjudication of the Objection to Adoption. See Neb.

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Rev. Stat. § 43-104.05. (If the child was born out of state, the customary

rules regarding venue would apply, in my opinion, so the petition could be

filed where the child resided or where one or both birth parents reside.)

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

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

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

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

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

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

An adjudication of the claim is essentially a proceeding to see if he can

block the adoption and take custody of the child himself. He has to file in

county court (or any juvenile court with jurisdiction), or there is no subject

matter jurisdiction. See Armour v. L.H., 259 Neb. 138, 608 N.W.2d 599

(2000), Bohaboj v. Rausch 272 Neb. 394, 721 N.W. 2d 655. He has 30 days

to do so and will lose his right to object to the adoption if he fails to meet

that deadline. See Neb. Rev. Stat. § 43-104.22 and 43-105.04.

If the birth mother contests the claim of paternity, i.e. the paternity

itself, the court shall order DNA testing. If the claimant father seeks to

oppose the proposed relinquishment of the child by the birth mother, there is

a trial on the putative father’s fitness, his ability to properly care for the

child, and whether the best interests of the child will be served by granting

custody to him. See § 43-104.22 specifically and generally see §§ 43-104.04

through 43-104.24.

Always keep in mind that the underlying goals of the adoption

practitioner or legal representative in an adoption should be “due diligence”

and “substantial compliance.” Each adoption is different; so if the

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circumstances of a case do not permit literal compliance, document it and

explain it in the Affidavit of Due Diligence. Judges will likely look to the

reasonableness of your efforts under the circumstances in determining “due

diligence,” even if literal compliance could not be achieved for some reason.

Trying to take a short-cut or being cute or clever will almost always doom the

process and damage your professional credibility. The statutory scheme has

been held constitutional, but careful compliance is the key to future

holdings of constitutionally. See In Re Adoption of Baby Girl H, Armour v.

KGG and TSG, 262 Neb. 775, 635 N.W.2d 256 (2001) (holding 43-104

constitutional). Additionally, to bolster the strength of our notice statute, I

believe additional information for the birth father or putative father is wise --

specifically, the time frame he has to file and your offer to let him know of

the birth. See Sample Letter to Birthfather Enclosing Notice.

2. Recent Case Law Regarding Birth Fathers and Legislative Change

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

(1) Facts Biological mother (Rausch) gave birth to a child out of wedlock. Four

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

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The district court found that the biological mother intended to relinquish the child for adoption (there had been no actual relinquishment). Based on that finding, the court determined that the case was an adoption case and not a paternity case, and dismissed the case for lack of jurisdiction.

The Nebraska Supreme Court held that a biological father who failed to file a petition under § 43-104.05 for adjudication of his notice of intent to claim paternity and obtain custody is not precluded from seeking to establish paternity in district court under paternity statutes, if there has been no consent or relinquishment by the mother and no adoption proceeding is pending (see § 43-1411). Under Nebraska paternity statutes (§ 43-1411), a biological father of a child born out of wedlock has four years from the birth of the child to commence a paternity action in district court. The court said that the intent to relinquish is not the same as actually making the relinquishment.

(2) Problem

Bohaboj created uncertainty and delay in finalizing adoptions if a biological father has four years from the birth of the child to file a paternity action. If the biological mother had filed a relinquishment of her parental rights and consented to the adoption of the child, the biological father, under § 43-1411, would have been precluded from filing the separate paternity action in district court, and the adoption could have proceeded. Bohaboj placed biological mothers in the untenable position of having to relinquish their rights to an agency or privately without knowing the final status of the biological father’s rights.

(3) Solution

The Legislature amended §§ 43-104.05 and 43-1411 to clarify jurisdictional and other issues in the relationship between adoption proceedings and paternity proceedings, and to clarify when a paternity action is precluded by pending adoption proceedings.

b. In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006)

(1) Facts

Child (Jaden) was born out of wedlock. Almost three years later, the biological father (Brian) filed a paternity action in district court. The court determined that Brian was Jaden’s biological father, awarded him visitation,

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and ordered him to pay child support. There were factual disputes regarding abandonment and payment of child support. About a year after the action was filed, the biological mother (Tracey) was remarried to Ronald. Tracey’s attorney notified Brian that Tracey planned to consent to Jaden’s adoption by Ronald. After receiving notice, Brian did not file with the biological father registry under § 43-104.02, nor did he file a petition to adjudicate a claim of paternity under § 43-104.05. Tracey and Ronald filed an adoption petition in county court, and Brian objected. Tracey asked the district court to give its consent to the adoption, which it did, and allowed the adoption to proceed in county court. The county court determined that Brian’s consent to the adoption was not required and entered an adoption decree, because Brian had failed to file a petition to have the notice adjudicated under § 43-104.05.

The Nebraska Supreme Court overturned the adoption decree and held that the biological father registry statutes (§§ 43-104.01 to 43-104.05) do not apply to a putative father who has previously been adjudicated to be the biological father of a child born out of wedlock. The court also held that § 43-104.22(7) does not apply to a father who has been adjudicated to be the child’s father. Applying § 43-104.22, said the court, would infringe on the biological father’s protected parental rights. “Because he has provided support and established familial ties with his biological child, his interest in personal contact with his child has acquired substantial protection.... His rights must therefore be determined under the considerations delineated in § 43-104.22, apart from subsection (7).”

(2) Problem

Jaden M. clarified when determination of a biological father to be the adjudicated or legal biological father affects application of Nebraska birth father registry statutes. The key to addressing the parental rights of adjudicated biological fathers are proper notice and judicial review.

(3) Solution

The Legislature added new provisions relating to adjudicated biological fathers to provide for a judicial determination of rights of such fathers and whether such fathers’ consent is required for an adoption. Adjudicated biological fathers are now exempt from the 5-business day filing requirement with the biological father registry maintained by Health and Human Services.

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c. In re Adoption of Corbin J., 278 Neb. 1057 (2009), 775 N.W.2d 204

(1) Facts

Stepparent and biological mother petitioned for stepfather to adopt. Biological father was never adjudicated to be the legal father. Notice was provided of the intended adoption and no objection was filed. County court granted the adoption based on the biological father’s failure to timely file an Objection with Health and Human Services. Supreme Court reversed on the basis that the registry could not be used when a biological father had established a “familial relationship” with the child.

(2) Problem

Something more than registry notice is required if a “familial relationship” was established, but no definition of familial relationship was provided. Cannot use § 43-104.25 procedure because there was no adjudication.

(3) Solution

File a motion to determine the necessity of the biological father’s consent under § 43-104.22.

d. Jeremiah J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820 (2015)

(1) Facts

In an unwed parent case, putative father was properly notified under the statute of the planned adoption and his right to object to the adoption and the procedures he needed to follow. He told the agency caseworker, at that time, that he opposed the adoption. Two and one-half months later, when the child was born, birth mother talked to birth father on the telephone four days after the birth but did not tell the birth father that the child had already been born. At trial, she explained she did not tell him the child had been born because she did not want him to know about the child’s birth during the timeframe he had to object to the adoption. The county court found that birth mother had intentionally hidden the child’s birth from the

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birth father and was equitably estopped from relying on the five-day time limit for objections.

The birth mother also presented evidence of abandonment but the court found that it was not established by clear and convincing evidence. Birth mother also alleged that the birth father was not a fit, proper and suitable parent because of an unstable work history, a history of drug abuse, a history of verbal and physical abuse and a criminal record. The court found these allegations were not supported by clear and convincing evidence. The court on appeal held that the birth father’s consent was necessary because even though he had received formal notice of the intended adoption, the birth had been hidden from him and his ability to timely file his objection to the adoption was thereby frustrated.

At the time of the Jeremiah case, the statute regarding the timeframe in which a birth father has to file his objection read that it had to be filed “within five business days after the birth” or within five business days after notice, whichever is later. The Supreme Court seemed to interpret that language to mean that there was only a five-day window for a birth father to file an objection. In other words, the court and counsel seemed to agree, erroneously in my opinion, that an objection to the adoption could not be filed with HHS until after the child had been born. Historically, the legislative history made it clear that a birth father could file an objection to the adoption any time during the pregnancy and as late as five business days after the birth, but revisions in 2007 intended to clarify that provision did not in fact do so.

(2) Problem

If a birth parent or an agency or an attorney working on behalf of a birth parent seeks to hide the birth of a child to frustrate a birth father’s ability to file his objection in the registry, it threatens the validity of the adoption. The 2007 version of the statutes created a lack of clarity which has now been rectified.

(3) Solution

The Legislature revised § 43-104.02 in 2014 to clarify that a birth father has the entirety of the pregnancy and up to five business days after the birth to file an objection, or up to five business days after receiving the required notice, whichever is later. Additionally, as a practice pointer, to strengthen the constitutionality of the registry statute, I recommend that additional information be placed in the notice

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letter to the birth father beyond that required in the statute. Specifically, I recommend that each putative father be informed of the requirement that he file an objection to the adoption any time during the pregnancy and as late as five business days after the birth, or after receiving notice, whichever is later, and that he must do so with the Department of Health and Human Services. I also recommend telling him that if he wants to be informed of the date of the actual birth of the child, that he should contact me as the author of the notice letter to him as to where he wants to be contacted to be given that information. If he does not do so, he would be hard pressed to claim that the birth had been hidden from him having not availed himself of the opportunity provided in the notice letter.

e. Monty S. and Teresa S. v. Jason W. and Rebecca W., 290 Neb. 1048, 863 N.W.2d 484 (2015)

(1) Facts

Biological parents and adoptive parents were friends. Adoptive parents were unable to have children so biological parents agreed to have a child on their behalf. Biological parents were not represented by counsel. Attorneys acting on behalf of the adoptive parents took relinquishments without explaining to the biological parents that any agreement to have communication and contact after the placement was legally unenforceable under McCormick v. State, 218 Neb. 338, 354 N.W.2d 160 (1984). The evidence was that the biological parents “felt sorry” for the adoptive parents and intended to serve as a surrogate but essentially intended to co-parent in a manner which operated to set up an expectation of shared parenting. After the placement, the adoptive parents did not allow the biological parents to take the child to a family reunion and the biological parents felt that the contact they had been promised was not being provided. Biological parents were not informed that “open adoptions” were essentially unenforceable in Nebraska. They testified had they known they would not have been able maintain contact with the child, they would not have signed the relinquishment forms.

The court found that a natural parent relinquishes his or her rights to a child by a valid written instrument giving up all rights to the child at the time of the relinquishment and that such a valid relinquishment is irrevocable. The only right retained by the natural parent is the right to commence an action seeking return of the child, but the natural parents’ rights are no longer superior to those of the prospective adoptive parents. A simple

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change of mind will not make a relinquishment revocable; however, duress and coercion can invalidate a relinquishment. The court found that there is no statute allowing communication and contact agreements or “open adoptions,” except in foster care situations; therefore, open arrangements were not endorsed by the Legislature. The Supreme Court thereafter concluded that it will not recognize open adoptions and will instead hold that relinquishments signed with the promise of such an open adoption are invalid.

(2) Problem

How are expectations for post-placement communication and contact to be managed if their mere existence can serve as a basis of coercion or duress? Can there be no more “open” adoptions in Nebraska? The facts of this case were unfortunate and created temporary legal instability for adoptions in Nebraska. LB 744, which was passed during the 2016 Legislature and goes into effect July 20, 2016, will address this issue, however.

(3) Solution

See LB744 (2016) effective date July 20, 2016.

(f) In re Adoption of Jaelyn B., 293 Neb. 917, ___ N.W.2d ___ (June 24, 2016), and Jesse B. v. Tylee H., ____ N.W.2d ___, 293 Neb. 973 (June 24, 2016).

(1) Facts

In this case of a child born out of wedlock, at the time of birth the birth mother and Jesse B. signed an acknowledgement of paternity and Jesse B.’s name went on the child’s birth certificate. What transpired over the next few months was in dispute, but birth mother and Jesse B. and child lived together for some relatively short period of time in the home of Jesse’s mother. The birth mother contended that Jesse was abusive to her and she left the state of Ohio, which was the state of the child’s birth, and returned to Nebraska to live with her parents. A short time thereafter, she determined it was in the child’s best interest to place the child for adoption.

The child was placed for adoption and in connection thereto, Jesse B. and another potential biological father, Tyler T., were notified under the notice-plus-registry statutes. Neither potential father filed an objection with HHS or a county court proceeding under 43-104.05. Rather, five months after

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the placement, Jesse B. filed a habeas corpus proceeding in District Court. Two months later, the adoptive parent filed an adoption in county court. Subsequent to the adoption being filed, DNA evidence showed that Jesse B. was not in fact the biological father. Tyler T. signed a waiver of rights and the adoption proceeded. Jesse B. sought to intervene in the adoption and his intervention was denied because DNA showed that he was not in fact the biological father. Jesse B. appealed the denial of his motion to intervene. The adoption was finalized and Jesse B. appealed the final order of adoption, as well. Subsequently, the habeas corpus proceeding was dismissed and also appealed.

On appeal, the Nebraska Supreme Court found in the two consolidated appeals regarding the adoption and the appeal of the habeas corpus proceeding that there exists a new category of birth father, which the court identified as “an acknowledged father” and that under some circumstances that makes him a “legal father” akin to a married father. The court drew from paternity case law, in particular, Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011), to hold that a paternity acknowledgement operates as a legal finding of paternity after the rescission period has expired. The Court also found that the District Court and County Court were required to give full faith and credit to Ohio’s paternity statutes and a “determination of paternity made by any other state, whether established through voluntary acknowledgement, genetic testing, or administrative or judicial processes.” In short, because Jesse B. acknowledged paternity at the time of the child’s birth, the genetic testing was irrelevant to whether his consent was necessary for the adoption to proceed.

(2) Problem

In the context of adoption of older children, especially those born in states other than Nebraska, adoption practitioners will have to be well versed in the legal standing of not only putative biological fathers, but adjudicated biological fathers and now “acknowledged fathers,” whether said individuals are the biological father of the child or not.

(3) Solution

In regard to the adoption of older children, practitioners will have to be diligent in ascertaining the legal standing of not only biological fathers, but individuals who were married to the birth mother, have been adjudicated to be the child’s father, or have acknowledged paternity and been placed on the birth certificate. DNA testing should occur as quickly as possible, and state statutes in the state of birth and state of adoption should be followed

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to rescind acknowledgements of paternity within the statutory time frames. Relinquishments and consents should be sought from all categories of birth fathers, and proceedings to dis-establish paternity may need to be utilized in the event of a non-biological father who has status as a “legal” father, i.e., married, adjudicated or acknowledged.

f. Carlos H. v. Lindsey M, 283 Neb. 1004, 813 N.W.2d 168 (2012)

(1) Facts

In this case of a child born out of wedlock, the birth parents were both 15 years of age at the time. Birth father was notified under the statute and filed an objection to the adoption. At issue was whether or not his petition to adjudicate the claim of paternity was filed within thirty days after filing the objection to the adoption.

The county court found that the petition for adjudication was not filed within thirty days of the filing of the notice of the objection to the adoption. The court also found that because the birth father was 15 years of age, he was not a proper party, because any action filed by him should have been maintained by a guardian or next friend pursuant to Neb. Rev. Stat. § 25-307.

On appeal, the court found that the birth father did not have capacity to sue and the 15-year-old birth mother did not have capacity to be sued. Therefore, the county court lacked jurisdiction over the action and the Supreme Court lacked jurisdiction over the appeal.

(2) Problem

In the case of birth parents who are minors, how are the notice provisions interpreted and how are birth parents to proceed to pursue a petition for adjudication or otherwise challenge an adoption? Further, are relinquishments by 15-year-olds valid?

(3) Solution

If lawsuits have to be filed to adjudicate claims of paternity or objections to adoptions, birth parents who are under 19 years of age should have a next friend or guardian appointed to prosecute or respond to

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adoption-related litigation. As far as relinquishments of birth parents who are under 19, whenever possible, have one or more legal parent sign the relinquishment with the birth parent and list them as natural guardian, legal parent and next friend of the minor birth parent.

STEP-PARENT ADOPTION

A. Recognition of Same Sex Marriages and the Effect on Adoption

1. Supreme Court Decision.

On June 26, 2015, the U.S. Supreme Court found that same-sex marriage is a Constitutionally-protected right in its decision in Obergefell v. Hodges. Nebraska must now issue marriage licenses to people of the same sex and must recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.

2. History of same sex adoptions in Nebraska.

In 2002, our Nebraska Supreme Court held that only legally married couples could jointly adopt, meaning an unmarried couple (same sex or different sex) could not jointly adopt, nor could an unmarried couple do a step parent or "second parent" adoption without a lawful marriage. See In Re the Adoption of Luke, 263 Neb. 365, 640 N.W. 2 374 (2002). The Court relied on the language of Neb. Rev. Stat. § 43-101 to preclude adoption by any two unmarried people and it further forbid second parent adoption by anyone other than a lawfully married step-parent.

3. Everything has changed.

Application of Section 43-101 has now changed. § 43-101 still states:

(1) Except as otherwise provided in the Nebraska Indian Child Welfare Act, any minor child may be adopted by any adult person or persons and any adult child may be adopted by the spouse of such child's parent in the cases and subject to sections 43-101 to 43-115,

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except that no person having a husband or wife may adopt a minor child unless the husband or wife joins in the petition therefor. If the husband or wife so joins in the petition therefor, the adoption shall be by them jointly, except that an adult husband or wife may adopt a child of the other spouse whether born in or out of wedlock.

4. Adult adoptions will be affected as well.

Neb. Rev. Stat. § 43-101 allows adult adoptions and step parent adoptions. Petitioners may now be married couples of same or different gender and lawfully married step-parents.

B. Key Practice Pointers.

1. Assessing the legal relationships between the parties seeking to adopt or file a step parent adoption.

When you do intake, you need to ask very thorough questions and get copies of marriage certificates, birth certificates and family and child history that is fairly exhaustive in nature.

2. Ascertaining parentage of the child

You need to be well versed in understanding the different assisted reproduction technologies in order to ask the right questions. It is not enough to gather information that a child was born by “sperm donation.” In professional gamete donation cases (sperm donation and egg donation) and in gestational carrier cases, the organization supplying the genetic material will have obtained waivers of rights from the donors; those are important documents to obtain. If the donation was not professionally done, there is likely no such waiver of rights, so you need to legally address the rights of the biological parent or parents in traditional fashion.

The key point in ascertaining the parentage of a child is determination of the identity of the biological or possible biological parents of the child. DNA is helpful but often unavailable. In connection with unwed fathers, one of the base line considerations is the identity of all possible biological fathers. Section 43-104.22, however, states that one of the reasons a "father's" consent would not be required is if he is not, in fact, the biological father. See Neb. Rev. Stat. § 43-104.22 (11).

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C. Practice Pointers in Addressing the Rights of Biological Fathers (and

Sometimes Biological Mothers).

1. Newborns and the putative father registry.

Nebraska's putative father registry (known as a notice plus registry) found primarily in Neb. Rev. Stat. §43-104.02, 43-104.04 and 43-104.05, has been held constitutional and still applies in newborn placements.

In light of the Obergefell v. Hodges decision, same sex married couples can now jointly adopt, but adoption practitioners must still address the rights of the biological parents in the same fashion as always. The birth mother's consent is always key, but the second step is to ascertain the appropriate information from the birth mother and others as to the identity of the putative father(s) and provide the notice(s) required by statute. The putative father(s) then have the entirety of the pregnancy and up to as late as five business days after the birth to file an objection with Health and Human Services. If they do not do so, their rights are not recognized thereafter and they cannot take action to block the adoption. If they file an objection with HHS, they then have to follow up by filing a legal action in the county court where the child was born (or if the child was born out of state, in the county court that would have appropriate venue under venue statutes), seeking custody of the child and asking the court to determine whether their consent is necessary under 43-104.22.

2. Adjudicated putative fathers.

Neb. Rev. Stat. § 43-104.25 sets forth the process for addressing the rights of a biological father who has been adjudicated to be the father of the child in a court of competent jurisdiction in Nebraska. (If the child was born out of state, you may need to file a motion to transfer the case from the other state to Nebraska or you may need to have a

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motion for consent to the adoption filed in the other state by an attorney licensed to practice in that state.)

The rights of an adjudicated father are given more weight than a putative father in a newborn scenario. See In re Adoption of Jaden M., 272 Neb. 789, 725 N.W. 2d 410 (2006). Therefore, since 2007, the statutes have required the adjudicated father has to be served with the same form notice of the intended adoption as you send to a putative father in a newborn placement, but the adjudicated father is not held to the five business day deadline to file an objection, nor must he file a paternity action in county court thirty days thereafter as required in section 43-104.05.

The adjudicated father may choose to consent to the adoption (which is the reason that you send him the notice of the intended adoption and include in the notice draft consents and a waiver of rights that you ask him to sign). If he does not respond to the letter and/or does not consent or waive his rights, then you will need to file a motion in the court that adjudicated him seeking the court’s consent to the adoption and seeking the court’s determination regarding whether or not the birth father’s consent is necessary under the criteria set forth in 43-104.22. (Note: If he does not show up at the hearing on that motion, that is one of the reasons his consent would not be necessary). See Neb. Rev. Stat. § 43-104.22 for all of the criteria the adjudicating court would use.

Sometimes there will be two courts involved. For example, sometimes a birth father is adjudicated in district court and ordered to pay child support and/or receives visitation, but the child is later placed in a guardianship in county court or juvenile court. In such a case, you will need to file in both courts and give the adjudicated father notice in both venues.

Section 43-104.25 (2)(c) requires the adjudicating court to determine the birth father’s rights and whether there is a need for his consent to the adoption. Neb. Rev. Stat. § 43-104 also requires the consent of any court having jurisdiction over the child (which would be the guardianship court in the above scenario). Once there has been a determination of whether the birth father's consent is required by the adjudicating court, many county courts will simply grant an informal request to consent to the adoption after sending the court a copy of the order from the adjudicating court letting the court know that the adoption is on file or will be filed, and sending the court a draft order

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granting verified consent of that court to proceed with the adoption. See attached sample forms.

The statutes do not have a definition of “adjudicated” and there is some lack of agreement about whether adjudication means an order to pay child support, an order for visitation, juvenile court findings, etc. To err on the side of caution, I consider an adjudication any time a court states in an order that a certain individual is the birth father, biological father or legal father of a child. It is my opinion that being the birth father named on a birth certificate through voluntary acknowledgement is not sufficient to constitute an adjudication. In my opinion, any man listed on the birth certificate as the father would be entitled to notice under the putative father registry, but would not be considered an adjudicated father. He might be considered a father with a familial relationship, however. See Section C below.

3. Familial relationships

In 2009, In In re Adoption of Corbin J., 278 Neb 1057, 775 N.W. 2d 404, our Nebraska the Supreme Court stated that a biological father with a "familial relationship" with a child could not be held to compliance with Nebraska's notice plus registry statute and that his need for consent would be determine under section 43-104(2). The court did not define what “familial” means, either in duration, age of the child, whether they ever lived together, whether he paid child support, etc. Therefore, it is very important when you do a step- parent adoption or older child adoption to ascertain whether the biological father ever lived with the child and mother, ever provided support, for how long, etc.

If an argument can be made that a familial relationship existed at some point in time, you should still notify the birth father in the same manner as a putative father in a newborn placement. I send him a letter and ask for his cooperation and often times he is willing to consent or sign a waiver of rights. If I get no response and I believe there is danger of the birth father coming back later and claiming a familial relationship, I go ahead and notify him by service of the filing of the adoption petition and give him notice of the date of the adoption hearing and I plead and prepare to prove abandonment, if the facts are sufficient to support it. 99% of the time, the biological father gets served with the adoption petition but does not appear at the hearing. If he appears and contests the adoption, proves he is he biological father, and claims he had a familial relationship with the child, then

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you should file a motion asking the adoption court to hold a separate hearing on the issues of consent and abandonment.

4. Legal Dads, Acknowledged Dads, Married dads, Married Moms and Abandoning Moms.

2016 case law discussed above created a new category/exception to the putative father notice plus registry statutes. The new category can be called “legal” dad or “acknowledged” father. The section 43-104.22 criteria for whether a man’s consent is necessary or not apparently does not apply to a man who is on the birth certificate, having acknowledged paternity at the hospital, even if he is not the biological father. That means that until the statutes are revised, obtaining his consent or pleading abandonment are the only methods to address his rights, regardless of his lack of biological connection to the child. So, essentially, if a man is on the birth certificate and the applicable time has passed to remove his name based on DNA showing he is not the father, he will have to be treated as if he has the same right to object to an adoption as a married father.

When biological parents are or were married, the unwed birth father statutes do not apply. Referring to Neb. Rev. Stat. § 43-104, if the couple is married, then you will need to get consent from both, unless the criteria in 43-104(2) apply.

If termination of one or both married parents has occurred, you will want to attach a certified copy of the termination order to the petition for adoption and plead that no consent is necessary as a result. If one of the married parents is deceased, you attach a certified copy of the death certificate. If they are incapacitated and are unable to consent or they have abandoned or cannot be located, you will need to ask the court to appoint a guardian ad litem to give substitute consent under section 43-105.

The same is true with an abandoning mom. The unwed birth father statutes to do not apply to a biological (married or unmarried) mother who cannot be found, or who can be found but has abandoned the child and will not cooperate with the adoption process. This scenario will arise in step-parent adoptions from time to time, and proving abandonment, getting a guardian ad litem appointed to give substitute consent, and proceeding by making service (actual or constructive) on the birth mom is the only way to proceed.

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D. Cautionary Tales in Nebraska Adoption Law.

1. Openness, Counseling and Legal Representation.

Our Nebraska Supreme Court has recently reinforced the fact that open adoptions do not exist in Nebraska, except in the case of the adoption of state wards, in which case there is a specific statute governing communications and contact agreements. In Monty S. and Theresa S. v. Jason W. and Rebecca W., ___ N.W. 2d ___ (May 29, 2015) (No. S-14-879), the court held that a consenting biological parent can challenge the validity of a relinquishment of a child for adoption on the basis that their relinquishment was not voluntarily given if there was an agreement between the adopting parents and the biological parents to retain any category of rights, including those to communication, contact or visitation. In the Monty and Theresa case, there was only one attorney (which is a practice pointer I want to emphasize--both sides to a private adoption should always be separately represented by attorneys) and the attorney involved did not explain to the parties that they could not proceed with an adoption under the circumstances they envisioned. The evidence showed that the couples agreed for Monty and Theresa to have a baby specifically for the purpose of placing the child for adoption with Jason and Rebecca, who were unable to have children, and that they did so with an explicit agreement to have an open adoption, which involved visitation and what was essentially a “co-parenting” arrangement. Co-parenting is completely inconsistent with the concept and effect of adoption.

The Monty and Theresa decision followed the decision in McCormick v. State, 218 Neb. 338, 354 N.W.2d 160 (1984), in which the Supreme Court held that “a relinquishment conditioned upon the retention of some parental rights is invalid.” The court held that this agreed upon retention of parental rights, “however slight,” was sufficient to invalidate Theresa's and Monty’s relinquishments. The Supreme Court essentially invited the legislature to create an open adoption statute, as it has done in connection with the adoption of state wards, and held that until the legislature acts to approve open adoptions, the court will continue to hold that relinquishments signed with the promise of an open adoption are invalid.

Communication and Contact Agreements

LB 744 allows written communication and contact agreements to permit continuing communication and contact between an adoptee

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and the adoptive parents and between the relinquishing parents and adoptive parents. A sample communication and contact agreement is found at page 284 in this Manual.

If the adoptee is 14 years of age or older at the time of the placement, the adoptee must consent to the communication and contact in writing. The court may approve a communication and contact agreement, but enforcement is not contingent on court approval.

The existence of, or the failure of a party to comply with, a communication and contact agreement is not grounds for setting aside an adoption decree, revoking a relinquishment, claiming duress or coercion, or challenging the adoption on the basis that it retains some aspects of parental rights.

LB 744 allows civil action to enforce a communication and contact agreement or to modify or terminate the agreement. The court must find that enforcement, modification or termination is necessary to serve the best interests of the adoptee; that mediation was attempted prior to filing the civil action; and when a party requests modification or termination, they have to prove a material change in circumstances.

The main practice pointer is that every communication and contact agreement entered into must bear the following language:

NO ADOPTION SHALL BE SET ASIDE DUE TO THE FAILURE OF THE ADOPTIVE PARENT OR PARENTS OR THE RELINQUISHING PARENT OR PARENTS TO FOLLOW THE TERMS OF THIS AGREEMENT OR A LATER ORDER MODIFYING OR TERMINATING THIS AGREEMENT. DISAGREEMENT BETWEEN THE PARTIES OR A SUBSEQUENT CIVIL ACTION BROUGHT TO ENFORCE, MODIFY, OR TERMINATE THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OF THE ADOPTION AND SHALL NOT SERVE AS A BASIS FOR ORDERS AFFECTING THE CUSTODY OF THE CHILD. THE COURT SHALL NOT ACT ON A PETITION TO ENFORCE, MODIFY, OR TERMINATE THIS AGREEMENT UNLESS THE PETITIONER HAS PARTICIPATED IN, OR ATTEMPTED TO PARTICIPATE IN, MEDIATION IN GOOD FAITH OR PARTICIPATED IN OTHER APPROPRIATE DISPUTE RESOLUTION PROCEEDINGS IN GOOD FAITH TO RESOLVE THE DISPUTE PRIOR TO FILING THE PETITION.

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Unlike communication and contact agreements for state wards, there is no timing requirement as to when a communication and contact agreement can be executed by the parties. In other words, it does not have to be signed before relinquishments are signed nor within a certain amount of time after. The parties are free to renegotiate the communication and contact agreement at any time; the communication and contact agreement is also just a minimum, not a maximum. Therefore, if the relationship between the adoptive parents and the birth parents so dictates, there can be more communication and contact than set forth in the agreement. The agreement can define itself by its own terms, including the time period for which it is effective; the specific terms of the communication and contact; what happens if parties move out of state; who can be present for visitation, etc. The agreement essentially can include any term which the parties find to be in the best interests of the child and appropriate under the circumstances of their relationship.

Mandatory Offer of Counseling and Legal Representation for Relinquishing Parents

In addition to establishing a statutory basis for communication and contact agreements, LB 744 also changed two important aspects of the law. First, in both agency and private adoptions, birth parents contemplating relinquishment of a child for adoption shall be offered, at the expense of the adoptive parent or parents or the agency, at least three hours of professional counseling prior to executing a written relinquishment of parental rights or written consent to adoption. The relinquishment or consent must state whether the relinquishing parent or parents received or declined the counseling.

Second, in private adoptions (not agency adoptions), birth parents who relinquish a child for adoption shall be provided legal counsel of their choice, independent of counsel for the adoptive parents, at the expense of the adoptive parents, prior to signing a written relinquishment and consent to adoption or a communication and contact agreement, unless specifically waived in writing.

As a practice pointer, the fact of the offer of independent legal counsel should appear in the relinquishment and consent and should also appear in the communication and contact agreement. There should be a specific line identifying the attorney who is representing the parent or parents and that he or she was provided at the expense of the adoptive parent. If either birth parent refuses the offer of independent legal counsel, that waiver should be very specifically stated in writing

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and the parent should affirm that he or she understands the legal risk of the decision.

2. Reimbursable expenses.

Nebraska does not have a statute regarding reimbursable expenses. All Nebraska has is Gray v. Maxwell, 206 Neb. 385, 293 N.W. 2d 20 (1980), which held that any compensation to a birth parent in excess of ordinary expenses of the birth and confinement can be considered to be duress and coercion and potentially used to invalidate the relinquishment. This has developed into the “but for” rule in Nebraska, as commonly practiced. Birth mothers are commonly reimbursed for things like medical bills not paid by insurance or Medicaid; legal bills in connection with the adoption; maternity clothes; lost wages if verified by a physician as being caused by the pregnancy and confinement and verified by pay stubs; transportation to and from doctor visits; a cell phone for safety and health issues, etc. Careful documentation is key, and under no circumstances should expenses be withheld as a way to incentivize birth parents to sign relinquishments; that would likely lead to claims of duress and coercion.

In the step parent context, a biological parent who consents to an adoption by a step parent will be relieved of child support obligations on a go-forward basis. Agreeing also to forgive the arrearage owed was approved of by our Supreme Court in In re Adoption of CLR, 218 Neb. 319, 352 N.W.2d 916 (1984), but I question whether our current court would find it appropriate, as it could be considered an inappropriate payment, inducement or coercion, so I caution against it.

The natural consequence of a birth father or birth mother (who has been ordered to pay child support) relinquishing a child for adoption is that the relinquishing parent will be relieved of future child support obligations, beginning with the month after the month in which the decree of adoption is entered.

Because adoption records are confidential by statute, I do not file copies of relinquishments or decrees of adoption in the court file of the district court ordering child support. Rather, I send a letter to the judge indicating that a decree of adoption was entered on a certain date and offer to provide a copy of the decree for an in-camera review. Typically, the court enters an order terminating child support effective

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the next month without an in-camera review, although I have had a few ask me to send over a copy of the decree for them to review.

3. ICWA

A new mini-ICWA was enacted in Nebraska during the 2015 legislative session. If you have a case that meets the definition of “Indian Child,” you need to acquaint yourself with the new version of ICWA as well as the currently-pending BIA Guidelines that were instituted on the federal level. There are serious questions as to whether or not these guidelines are enforceable as regulations, as the BIA purports. Regardless, an ICWA adoption is not to be taken lightly, as there are numerous areas in which mistakes can be made and malpractice can occur.

The most important thing a practitioner can do is ascertain whether any of the biological parents involved in an adoption are members of a Native tribe and whether the child is eligible for enrollment. When and how to notify the tribe is an issue of concern and disagreement. Generally speaking, the tribe has the right to define who its members are, so there is often a need to contact the tribe to determine eligibility, but there are privacy considerations and confidentiality concerns in notifying the tribe without the client’s permission and/or without their understanding of the ramifications of providing or not providing the notice.

4. Interstate Compact Act.

Any time a child crosses state lines for purposes of adoption, it triggers the Interstate Compact Act. It is a misdemeanor not to comply with the Act. Approval needs to be obtained from the Interstate Compact Office in the sending and receiving state before the child can cross state lines. Adoption laws in each state have to be satisfied to obtain approval. Sometime there are difficult choice of law issues and complications in meshing the laws of the two states. Interstate placements are not to be undertaken lightly and if you have never done one, getting some assistance is advised.

There is an exception to the Interstate Compact Act if the child is an immediate family member of the adopting parents, i.e., parent, brother, sister, aunt, uncle, grandparents, but the exception does not apply if the adopting parents are the great-aunt or great-uncle or great-grandparents.

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PREPARATION OF THE FORMS

The following sections will walk you through preparation of forms for a

typical adoption and the hearing procedures. Again, you must closely check

the statutes and court rules, together with the case law, to determine how

your pleadings and court procedures will need to vary from the examples set

forth in this manual.

A. The Petition

1. If the adoption is a married couple, both spouses join in the

petition for adoption. This is true even if the adoption is a step-

parent adoption. § 43-101.

2. Set forth the names and birth dates of the adoptive children.

3. Allege that the adoptive children have resided with the adoptive parents for at least six months before the granting of the decree. § 43-109.

4. All necessary consents must be filed with the court prior to the hearing but I attach them to the petition at the time of filing whenever possible. If you are alleging that a consent is not necessary, you must allege facts in support of your contention.

5. You must allege that the adoptive parents reside in the county. § 43-102, § 43-102.01. If the child is a State ward, the adoptive parents do not have to be Nebraska residents. See § 43-101.

6. If you are asking to have the child’s name changed, you must allege the proposed new name of the adoptive child in the petition. § 43-109.

7. Finally, the petitioners must sign the petition under oath. § 43-102.

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B. Consents

1. Child’ s Consent . You will need to have the child to be adopted sign a consent if the child is over the age of 14. This means that if the minor is age 14 or older, he or she must consent to the adoption. § 43-104(l).

2. Private Placement Consents.

3. District (or other) Court Consent/Motion. You will need to file a motion to obtain the district court’s or juvenile court’s consent to adoption As stated earlier, this consent is necessary if the natural parents were earlier divorced in Nebraska or if a paternity, guardianship or juvenile proceeding is already on file. If so, the court in which the action was filed retains jurisdiction over the issue of the custody of the child until the child is of the age of majority. § 43-104 makes consent of any Nebraska court having jurisdiction over the child a necessary component of the adoption filing. If the unwed birth father was adjudicated by a court, then you will also be asking that court to determine the necessity of the birth father’s consent under § 43-104.22.

C. Substitute Consent

Although any substitute consent required under § 43-105 is

substantively the same as any other consent required by the adoption

statutes, the procedures involved in obtaining a substitute consent can be

somewhat complicated. Therefore, the procedures will be considered

separately in this subsection.

In any case where the parents̓ consent is not required or cannot be

obtained because of the provisions of § 43-104(3), a substitute consent must

be obtained. See Neb. Rev. Stat. § 43-105. The usual case in which this

arises is one where the absent parent has allegedly abandoned the child.

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Note, however, that § 43-105 specifically states that substitute consent for

an unwed birth father is not required if the birth father’s consent would not

be required under § 43-104.22.

Section 43-101 provides that a guardian of the minor child or a

guardian ad litem can give consent to the adoption in such a case. The

simplest way to go about obtaining a substitute consent is to ask the court to

appoint a guardian ad litem for this purpose, if the court is willing. If not,

then an actual guardianship will be necessary. The guardianship provisions

are now found at §§ 30-2601 to 30-2616, and address the appointment of a

guardian for a minor. Each of the forms you will need to prepare in

connection with your petition for appointment of a guardian will be discussed

in this subsection. There are several general matters of which you need to

be aware:

1. The guardianship petition will carry a separate filing fee.

2. If more than one child is involved, all of the children can be combined in a single petition for appointment of guardian. Thus, there will be only one filing fee no matter how many children are involved.

3. The court will designate a local attorney to be appointed as guardian ad litem for purposes of granting consent.

4. In addition to the filing fees, the client needs to be advised that there will probably be publication costs. The procedure involved in giving notice by publication is discussed below.

a. Petition for Appointment of Guardian. Prepare a petition for the appointment of a guardian for each minor child involved in the adoption for whom substitute consent is

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necessary. Although the statute does not require that the petition be verified, it is good practice to have the petition verified by the petitioner.

b. Nomination of Guardian of Minor. You should obtain a nomination of guardian by any minor age 14 or over. The effect of getting the nomination of the guardian by such a minor is to require the court to appoint the person nominated by the minor unless the court finds the appointment would be contrary to the minor’s best interests. § 30-2610.

c. Order for Hearing and for Publication. This date will likely be the same date as the date on which the adoption proceedings will be heard. Check with your local county court clerk to see if the guardianship and adoption hearings can be scheduled at the same time.

d. Notice of Hearing. The notice of the adoption hearing must be served on the adoptive child, if age 14 or over; the natural parents; and any other person the court directs you to notify. § 43-103. Publication is also required once a week for three weeks in the newspaper most likely to provide actual notice to the parent who has abandoned the child.

D. Filing the Forms

After you have prepared all of the necessary forms, they must be filed

with the clerk of the appropriate court.

1. In an adoption where no substitute consent is necessary, you

should have the following forms:

a. Petition for adoption with all necessary consents and affidavits attached;

b. Order for hearing;

c. Notice of hearing (unless notice of hearing has been waived by all necessary parties consenting to the adoption

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or unless not required;) See § 43-103.

d. Complete medical history of child and biological parents; and

e. Affidavit(s) signed by relinquishing parent(s) regarding nonconsent forms.

f. All documents required by statute to give notice of the adoption to the birth father, including Affidavit of Identification and Affidavit of Due Diligence.

g. Certified copy of any consent order from another court proceeding regarding § 43-104 consent of the court or the issue of an adjudicated father’s consent under § 43-104.25.

2. Take the originals of these pleadings to the clerk of the court. If

substitute consent will be necessary, then file a motion to appoint guardian

ad litem. If that is not granted, then file the following pleadings:

a. Petition for appointment of guardian;

b. Nomination of guardian by minor over age 14 (if applicable);

c. Order for guardianship hearing; and

d. Notices of guardianship hearing (both one which will be mailed to interested parties and one which will be sent to the newspaper for published notice).

Take all necessary forms, together with the filing fees, to the clerk of

the court and file the papers.

E. Preparing for the Hearing

Before the hearing, there are several pleadings to prepare which will

be needed at the hearing.

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1. Decree

You will need to prepare a decree of adoption, to present to the judge

at the time of the hearing. If there is more than one child being adopted,

you will need to prepare a separate decree for each child, despite the fact

that all children can be combined into one adoption petition. The decree

may not refer to the child being born out of wedlock.

2. Report of Adoption

You will also need to prepare a report of adoption. The Bureau of Vital

Statistics will only accept reports of adoption which are filled in on the

original purple forms supplied by the clerk of the court’s office. It is also

important to remember that the information should be typewritten on the

forms, and not printed. Another frequent problem is failure to have one of

the parents verify the form. Note that you need the full middle name of all

persons identified on the form -- middle initials are not enough. You will

notice that question 20 on the report of adoption requires the signature of a

parent verifying the data in Part II of the form.

3. Guardianship Forms (if required)

If your adoption hearing will also involve a guardianship hearing due to

the necessity of substitute consent and the court refuses for some reason to

appoint a guardian ad litem, you should also prepare a motion for discharge

of guardian and order granting the discharge of the guardian. It is the usual

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practice for these pleadings to be presented to the court at the time of the

hearing on both the guardianship and adoption.

4. Client Preparation

Finally, you may want to schedule a time to meet with your clients to

review with them the questions you will be asking of them at the hearing.

This is generally not necessary in the case of infant adoptions or step-parent

adoptions, however.

F. The Hearing

You should stress to your clients that all adoptive children need to

appear at the hearing in person.

When you arrive at the courthouse on the day of the hearing, you

should locate the courtroom in which the hearing will be taking place and

check to make certain of the time of the hearing. Usually, there will be a

schedule of hearings posted on the door of the courtroom. The names of the

adoption hearings may not appear on the list; instead, the attorney’s name

may appear next to the time scheduled for the adoption hearing. This is due

to the confidentiality of adoption hearings.

The actual adoption hearing itself is usually informal. The judge may

sit at the table with you and your clients; he or she may not wear a robe.

The judge often asks you how you wish to proceed. You should state to the

judge that you wish to have your clients sworn and testify. The judge will

then administer an oath to your clients.

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Once the judge has administered the oath, you should ask the court to

take judicial notice of the petition and all exhibits to the petition, then begin

your clients’ testimony. The questions you ask your clients will vary

depending upon the circumstances of your case. However, a boilerplate list

of questions includes:

1. Please state your name and address for the record.

2. How long have you been a resident of Lancaster County, Nebraska?

3. Are you presently married? To whom? When were you married?

*4. Are you the natural mother of ___________________?

5. What is the child’s date of birth?

6. Where was the child born?

7. How long has [the adoptive child] resided with you and your husband?

*8. You have joined in the adoption petition action in this action with your husband, is that correct? Do you wish to have your husband adopt [the child]?

*9. Do you realize that if the court grants this adoption your husband will have all the rights of a natural father? Have we visited before the hearing today about such rights and do you understand what those rights will be?

*10. Do you believe that your husband is a suitable, fit and competent person to adopt [the child] and provide for his/her support?

11. Do you agree to bestow upon [the child] all of the rights and privileges of a child born to you and do you understand that from this day forward the usual relationship of parent and child shall exist between you and [the child] with all of the rights, duties

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and legal consequences of the natural relation of parent and child?

12. Do you believe the adoption will be in the best interests of [the child]?

13. Do you request that the court grant the adoption and approve the name change of [the child] from ______________________ to __________________?* Step-parent adoptions

If the issue of abandonment is before the court, you will need to

carefully structure questions regarding the abandonment issue to elicit clear

and convincing evidence of the abandonment.

You should then examine the other spouse and ask him/her the same

general questions you have asked the first parent. One additional question I

usually ask the adopting step-parent is why he/she wishes to adopt the child.

I usually ask this question at the very end of my questioning of the step-

parent to give him/her a chance to relate a short narrative answer to the

court about his/her reasons for wanting to adopt. I also confirm his/her

understanding that if the couple should divorce he/she will have the same

obligations of child support and the same rights of visitation as if the child

had been born to their marriage or was his/her natural born child.

Once you have finished your questions, the judge may ask any

questions he or she has. At the end of the hearing, the judge will generally

sign the decree for adoption and return it to you. The judge excuses you and

you leave. The hearing is over.

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After the hearing you will need to take the court file, the adoption

decree, and the report of adoption into the clerk of the county court’s office.

Your clients should accompany you to make certain that all necessary

information has been supplied to the clerk. You should make a written

request for several (i.e., 3 to 5) certified copies of the adoption decree. I ask

the judge to sign an order approving it.

G. Post-Hearing Matters

After the decree has been returned to the clerk, along with the report

of adoption, you will need to check on two things before closing the file. The

clerk will send a signed report of adoption to the Bureau of Vital Statistics.

You need to give the clerk the fee after the hearing. The Bureau will then

send a corrected birth certificate to you, reflecting the child’s new name. If

the birth certificate is on file in another state, you will need to discover the

cost of amending the birth certificate, and the address to which to send the

fee and report of adoption.

You may wish to provide a copy of the adoption decree to the district

court if it was necessary to get the district court’s consent to adoption. Such

a filing will notify the judge that the adoption has taken place, and that the

biological parent’s child support obligation has ended (if this is an issue).

Don’t file the decree in district court. It’s a confidential, non-public

document. Write to the judge, let her or him know it was entered, offer in

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camera review of the decree, and send a proposed order terminating child

support.

Upon receipt of the new birth certificate, you should mail it to your

clients, along with any unused fees, and inform them that the file is being

closed. At the hearing, you need to ask for (the certified copies of the

adoption decree that your client will need.

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IN THE COUNTY COURT OF LANCASTER COUNTY, NEBRASKA

IN THE MATTER OF THE ADOPTION ) AD___-_____OF )

____________________________, ) PETITION FOR ADOPTIONa minor child. ) [step-parent]

1COME NOW, _______________ and _________________, husband and wife,

petitioners herein, and respectfully represent to the Court as follows:

1. Petitioners are residents of ______________, _____________

County, Nebraska. [Always confirm with all Omaha clients whether

they are in Sarpy County or Douglas County. Some Omaha

addresses are in Sarpy County.]

2. ___________________ is a minor child who has resided with

the petitioners for more than six months next preceding the filing of this

petition. Petitioner, _________________, is ____________’s step[father] [mother]

by virtue of [his] [her] marriage to ___________________,

_______________________’s [mother] [father], on ___________, _____.

3. ________________ was born [out of wedlock] [in wedlock] to

___________________ and to ________________________, on ___________________,

_____, in ____________________.

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4. [ ] Counsel for ___________________ has made numerous

attempts to contact __________________ [and successfully reached him via

telephone on _______________ and _________________. In both conversations,

Mr. ____________ stated that he intended to sign relinquishment papers so

that the child could be adopted but first wanted to speak with ______________

privately]. Refer to the Affidavit of ______________ attached hereto as Exhibit

“1” and incorporated herein by reference regarding his/her attempts to

contact Mr. ________________. In spite of a final attempt to contact

Mr. ____________, he has not been heard from again and has abandoned

______________________ as he has made no attempt to see or communicate

with the minor child since his/her birth.

5. [ ] Pursuant to Neb. Rev. Stat. § 43-105(1)(c), when consent

cannot be given as otherwise provided in Neb. Rev. Stat. § 43-104, consent

shall be given by the guardian or guardian ad litem of such minor child

appointed by a court, which consent shall be authorized by the court having

jurisdiction of such guardian or guardian ad litem. As the minor child was

abandoned by his biological father [at birth] and has neither responded to

attempts to obtain a relinquishment nor made any effort to parent the child,

substitute consent is required as no other consent can be given.

6. Pursuant to Neb. Rev. Stat. §43-104.10, Mrs.

______________________ was informed of the legal and medical need to

determine, whenever possible, the paternity of the child prior to an adoption,

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and that her failure or refusal to accurately identify the biological father or

possible biological fathers could threaten the legal validity of any adoptive

placement of the child. (See attached Exhibit 1 at #22.)

7. Pursuant to Neb. Rev. Stat. §43-104.09, attached hereto as

Exhibit “1” and incorporated herein by reference, is the biological mother’s

Affidavit of Identification, which identified [only one possible biological

father, ______________________]. [No individual has been adjudicated to be the

legal father of the child nor has any individual ever established a familial

relationship with the child as putative father.]

8. Pursuant to Neb. Rev. Stat. §43-104.16, counsel for Mrs.

____________ executed an affidavit stating that due diligence was used to

identify and give actual or constructive notice to the biological father or

possible biological fathers of the child, and stating the methods used to

identify and give actual or constructive notice to those persons. The

Affidavit of Due Diligence is attached hereto as Exhibit “2” and is

incorporated herein by reference.

9. Pursuant to Neb. Rev. Stat. §43-104.08 and Neb. Rev.

Stat. §43-104.15, on ______________, ____, by certified mail, return receipt

requested, the biological father, ____________________, was notified at his last

known address of Mrs. ________________’s plan to consent to the adoption of

__________________ by her husband, ____________________. The notice, which

was titled “In Re Relinquishment of __________________________ For Adoption”,

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informed Mr. ___________________ of his rights. (See attached Exhibit 2-__.)

Counsel for Mrs. ____________________ also reviewed the categories of possible

biological fathers in Neb. Rev. Stat. §43-104.12, and determined that neither

Mrs. ___________________ nor counsel have any information about any other

possible biological fathers of ____________________, other than

__________________ identified by Mrs. ______________ and, therefore, Mr.

___________’s notice was the only notice required under the statute.

[Warning: If notice was published, was a copy of the notice mailed

to birthfather’s last known address?]

10. Attached to Exhibit 2-___ is the green, return receipt,

restricted delivery card signed by Mr. ______________ on ________________,

_____, indicating that Mr. _____________ received the official notice mailed to

him on ________________, _____.

11. [ ] On ____________________, _____, ______________________

signed a Denial of Paternity and Waiver of Parental Rights, in which Mr.

_________________ expressly waived further notice of any hearings related to

____________________________. The Denial of Paternity and Waiver of Parental

Rights is attached hereto as Exhibit “___” and is incorporated herein by

reference.

[ ] On ___________________, ________________________ relinquished the

minor child and consented to the minor child’s adoption by adopting

parent’s name only . The Consent and Relinquishment for Adoption is

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attached hereto as Exhibit “ ” and is incorporated herein by reference. Mr.

__________________ also executed an Affidavit Regarding Nonconsent Form as

required by Neb. Rev. Stat. § 43-106.02, on ______________________. The

Affidavit is attached hereto as Exhibit “ ” and is incorporated herein by

reference. On __________________, Mr. _____________________ completed a

Nebraska Adoption Medical History attached hereto as Exhibit “ ” and


12. Petitioners specifically allege substantial compliance with

Neb. Rev. Stat. §43-104.08 through Neb. Rev. Stat. §43-104.16. [Petitioners

specifically allege substantial compliance with Neb. Rev. Stat. §43-104.08

through Neb. Rev. Stat. §43-104.16, in that all procedures complied with the

laws of the state of __________ which is equivalent to substantial compliance

with the laws of the state of Nebraska.]

13. No putative father has filed a Request for Notification of

Intended Adoption nor a Notice of Objection to Adoption and Intent to Obtain

Custody with the Nebraska Department of Social Services regarding

__________________________. An Affidavit from the Department of Social

Services attesting to the fact that no Request for Notification of Intended

Adoption and no Notice of Objection to Adoption and Intent to Obtain

Custody have been filed with the Nebraska Department of Social Services is

attached as Exhibit “___” and incorporated herein by reference. [Affidavit

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required even when baby born out of state or when birthfather signs

Relinquishment.]

14. ___________________________ and __________________________

were [divorced] [parties to a paternity proceeding] on ________________,

20___, in ____________ County, Nebraska. [A Motion to Consent to Adoption

and for determination of birthfather’s consent pursuant to Neb. Rev. Stat. §

43-104.22 and § 43-104.25, has been filed with the ___________ County

District Court, as such consent is required by Neb. Rev. Stat. § 43-104(1)(b),

and upon receiving such consent to the adoption, counsel for the Petitioners

will file a certified copy of such consent with this Court prior to the court

hearing hereon.] [Use the following for a divorce: A Verified Motion for

Consent to Adoption, as such consent is required by Neb. Rev. Stat. § 43-

104(1)(b), has been filed with the Lancaster County District Court and upon

receiving such consent to the adoption, counsel for the Petitioners will file a

certified copy of such consent with this Court prior to the court hearing

hereon.]

15. Pursuant to Neb. Rev. Stat. § 43-107(1)(b)(ii), a federal

criminal history record information check and a Nebraska Department of

Health and Human Services central register check, both on

_____________________ are attached hereto as Exhibits “___” and “___” and

are incorporated herein by reference.

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16. Petitioner, adopting parent’s name only is willing and

anxious to adopt ________________, and biological parent’s name

consents to the adoption of ________________ by ______________________

because it is in the best interests of the child that she/he be adopted by

__________________________. The Consent to Adoption signed ______________,

_____, is attached hereto as Exhibit “___” and is incorporated herein by

reference.

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WHEREFORE, Petitioners pray:

1. That this matter be set for hearing at a time certain fixed by the Court.

2. [ ] That a Guardian Ad Litem be appointed to give substitute consent to the adoption of _________________ on behalf of ___________________, pursuant to to Neb. Rev. Stat. § 43-105.

3. That notice of the adoption hearing be given as required by law.

4. That a decree of adoption be entered in conformity with the provisions of law.

5. That the Court decree a change of name of the minor child to: _______________________. [That the name of the minor child remain _________.]

6. For such other and further relief as may be appropriate.

Dated this ___ day of _______________, _____.

Petitioners

By: Cline Williams WrightJohnson & Oldfather, L.L.P.233 South 13th Street1900 U.S. Bank Bldg.Lincoln, Nebraska 68508-2095402-474-6900

By: Susan K. Sapp #19121

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ACKNOWLEDGMENT

STATE OF NEBRASKA ) ) ss.

COUNTY OF LANCASTER )

__________________________________, being first duly sworn upon oath, deposes and states that he appeared before me this _____ day of ________________, _______, a duly authorized notary public, known to be the identified person described above and who has executed the foregoing Petition and acknowledge the same to be his free and voluntary act and deed.

WITNESS:

Subscribed and sworn to before me this _____ day of ___________________, _______.

Notary Public



__________________________________, being first duly sworn upon oath, deposes and states that she appeared before me this _____ day of ________________, _______, a duly authorized notary public, known to be the identified person described above and who has executed the foregoing Petition and acknowledge the same to be her free and voluntary act and deed.

WITNESS:


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Notary Public

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____________________________, ) ORDER FOR HEARING ANDa minor child. ) FOR NOTICE

IT IS ORDERED that the hearing requested in the Petition for Adoption

be held on ____________, 20___, at ________________ __.m. in this Court, and

that notice of such hearing be given to all interested persons in the manner

provided by law.

Dated ___________________, 20___.

BY THE COURT:

County Court Judge

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____________________________, ) MOTHER’S CONSENTa minor child. ) TO ADOPTION

1. 1I, ____________________________, being first duly sworn, state as

follows:

2. I am a petitioner in this adoption action.

3. I am the mother of [____________________, a minor child, born [out

of wedlock] on ______________________, to me and __________________________]

[an adult child born on _________________, 20___]. The child was born as issue

of the marriage of me and my former husband, __________________________.

4. My marriage to __________________________ was terminated by the

District Court of Lancaster County, Nebraska on or about __________________,

20___. [Paternity was determined by the _________ Court of ___________

County on or about _______, 2___.] The decree awarded legal and physical

custody of _____________________ to me.

5. I am presently married to ________________________, who desires

to adopt ____________________________.

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6. I believe that __________________________ is a fit and proper person

to adopt __________________________, and that the adoption would be in the

best interests of _______________________.

7. I hereby freely and voluntarily, without duress or coercion, and

do not as a result of any threat or promise, consent to the adoption of my

child, _____________________________, by _________________________.

8. I voluntarily enter my appearance in this matter and waive any

further right to notice of the adoption hearing to which I am entitled under

law.

Dated: ___________________, 20___.

Witness __________________

STATE OF NEBRASKA )) ss.


On this ____ day of ____________, 20___, before me, a duly authorized notary public in and for the State of Nebraska, County of Lancaster, personally appeared ____________________, known to me to be the identical person described in and who executed the above and foregoing instrument in the presence of a witness, and she acknowledged the same to be her voluntary act and deed for the purposes therein mentioned.

IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year last above mentioned.

Notary Public

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[Central Registry Check forms must be obtained from http://dhhs.ne.gov/children_family_services/Pages/nea_cr.aspx]

You will need to click on “In-State Adoption” and “In-State Adoption Instructions”. You should complete the Agency Name and Address section with the name and address of your law firm. Please note that if the step-parent does not have any “other names previously used”, you need to write “None” in that section.

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http://dhhs.ne.gov/children_family_services/Pages/nea_cr.aspx

[Step-Father]____________________________

RE: Step-parent Adoption of _____________

Dear [Step-Father]:1Nebraska law requires a national criminal history check on step-

parents as part of the adoption process. The Nebraska State Patrol now provides fingerprint services by appointment only. ___________, please call (402) 479-4971 to make an appointment at the Lincoln State Patrol Office at 3800 NW 12th St., Ste. A (near the airport) to schedule a time to be fingerprinted. They will charge a fee of $32.00. Please try to arrange this as soon as possible as it can sometimes take anywhere from two to six weeks (or more) for the FBI to process the prints. You should inform the State Patrol that you are requesting fingerprinting for a step-parent adoption and that the results should be sent to the Lancaster County Court Probate office. The Lincoln State Patrol office will send your prints to the FBI office for the background check and then they will file the results directly with the County Court.

[For Scottsbluff step-parent adoptions: The step-father needs to get printed at his local state patrol office but he should take the fingerprint cards with him and mail them to you. You will then need to mail them to the Lincoln office:

Nebraska State PatrolAttn: Melinda (phone #479-4971)3800 NW 12th St., Suite ALincoln, NE 68521

Along with a check for $32 payable to NE State Patrol. Tell them it’s for a step-parent adoption and to send the FBI background check results directly with the County Court.]In the interim, please return the enclosed documents to me as soon as

possible in the enclosed postage-paid envelope.

If you have any questions about the documents, please feel free to call me or my paralegal, Tami Rager, at any time. Best regards!

Very truly yours,

SUSAN K. SAPPFor the Firm

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IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA[Warning: District Court rules do not allow social security numbers or dates of birth to be included in their pleadings.]

___________________________________, ) Docket ____ Page _______ )

Petitioner, )) [MOTION FOR DISTRICT COURT’S

v. ) CONSENT TO ADOPTION) AND DETERMINATION OF

___________________________________, ) BIRTH FATHER’S CONSENT) UNDER § 43-104.22]

Respondent. ) [For a divorce use: VERIFIED) MOTION FOR CONSENT) TO ADOPTION]



COMES NOW _________________, [formerly known as __________________,]

and, being first duly sworn, states as follows:

1. On the ____ day of ___________________________, 19/20___,

this Court decreed [paternity] [a dissolution of marriage] between the

petitioner and respondent.

2. As a result of the above-mentioned decree, this Court has

continuing jurisdiction over the issue of welfare of the parties’ minor child,

_______________, born in __________________, 19/20__. [Do not include full

DOB.]

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3. This Court awarded custody of _________________, currently

age _____, to the petitioner, ___________________, as a result of its

_________________, 19/20___, decree.

[ ] 4. On ________________, 19/20___, petitioner married her present

husband, _____________.

[ ] 5. Petitioner and her present husband reside at _____________,

______________, Nebraska.

[ ] 6. Petitioner’s current husband has been employed by

______________ since ____________, 19/20___, and has adequate income to

support the minor child, _____________.

[ ] 7. Petitioner’s current husband has supported, carried for, and

loved _____________ as his own child since he and the petitioner married.

8. The minor child has lived with petitioner [and her current

husband] since [_________________] [the date of their marriage].

9. [Petitioner’s husband is a] [adoptive father and adoptive mother

are] fit and proper person[s] to adopt __________________ and assume all

parental responsibilities relative to the minor child.

10. The proposed adoption of _______________ by [petitioner’s current

husband] [adoptive father and adoptive mother] is in the best interests of

the child.

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11. [____________________, petitioner’s current husband is] [adoptive

father and adoptive mother are] willing and anxious to adopt

_________________ and assume all parental responsibilities relative to him/her.

[ ] 12. Petitioner [has given] [will be giving] her consent to the proposed

adoption.

13. [Respondent has given his consent to the proposed adoption of

____________ by ____________________. A copy of the Consent and

Relinquishment to Adoption is attached hereto as Exhibit “A” and

incorporated herein by reference.] [OR] [Respondent’s consent is not

necessary for the proposed adoption because one or more of the following

are true: [Plead applicable subsections of § 43-104.22.]

[If a Relinquishment for Adoption is attached an exhibit, be sure to

redact the date of birth from the document before attaching.]

14. [Service on Respondent of this Motion and Notice of Hearing was

provided pursuant to Neb. Rev. Stat. § 43-104.25.] [Respondent has waived

notice of further hearings on this adoption.]

15. In the event that this Court consents to the proposed adoption

and in the event the proposed adoption is decreed by the County Court of

Lancaster County, Nebraska, petitioner waives all claim against the

respondent for future child support as of the month in which the adoption is

decreed by the County Court of Lancaster County, Nebraska.

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WHEREFORE, [for divorce: pursuant to Neb. Rev. Stat. § 43-104(1)

(b),] petitioner moves the Court to grant its consent to the proposed

adoption of ____________________ by [_________________, her current husband]

[adoptive father and adoptive mother]. [Petitioner prays that the Court

determine that _____________’s consent to the proposed adoption is not

required pursuant to Neb. Rev. Stat. § 43-104.22.] Petitioner further prays

that in the event the adoption is granted, this Court terminates the

respondent’s duty to pay future child support as of first of the month

following the date on which the adoption is decreed by the County Court of

Lancaster County, Nebraska.

[Still need to file additional documents after the Adoption Decree is

entered in order to terminate child support.]

__________, formerly known as ,Petitioner

SWORN AND SUBSCRIBED to before me this ____ day of ____________, 20___.

Notary Public

By: Cline WilliamsWright Johnson & Oldfather, L.L.P.233 South 13th Street1900 U.S. Bank Bldg.Lincoln, Nebraska 68508-2095402-474-6900

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______ By: Date Susan K. Sapp #19121

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[ ] NOTICE OF HEARING

Please be advised that the above and foregoing Motion for District Court’s Consent to Adoption and Determination of Birth Father’s Consent Under § 43-104.22, will be called for hearing before the Honorable ____________, on ___________, 20___, at _____ a.m./p.m., Lancaster County District Court, 575 S. 10th Street, Lincoln, Nebraska, or as soon thereafter as the same may be heard.

Susan K. Sapp - #19121

[ ] CERTIFICATE OF SERVICE

I, Susan K. Sapp, hereby certify that a true and correct copy of the foregoing was served upon [birthfather], __________________, and _______________, Lancaster County Attorney’s Office, 575 S. 10th St., Lincoln, NE 68508-2866, by United States Mail, sufficient postage prepaid, this _____ day of _______________, 20__.


[Warning: Need to serve notice on the county attorney if it was a paternity action involving child support enforcement.]

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IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA[Warning: District Court rules do not allow social security numbers or dates of birth to be included in their pleadings.]

___________________________________, ) Docket ____ Page _____)

Petitioner, )) ORDER FOR CONSENT

v. ) TO ADOPTION)

___________________________________, ))

Respondent. )

Now on this _____ day of __________________, 20___, this matter comes

on for hearing upon the application of _____________________, [now known as

__________________,] for an order of this Court consenting to the adoption of

___________________, a minor child, by ______________. Petitioner[s] appeared

by and through [their] [her] attorney, Susan K. Sapp. Respondent did not

appear. [Proof of service on Respondent is found in the court file.]

WARNING: Only use the following and references to “testimonial

evidence” in cases where someone actually will testify: The Court [,

after having heard the testimonial evidence, reviewing its file, and being

otherwise fully advised in the premises] finds as follows: [The petitioner,

___________________, [and her current husband,] ___________________, [and the

minor child, _____________________,] presented testimonial evidence on behalf

of Petitioner. [The Respondent was called and sworn and presented

evidence on behalf of Petitioner.] [The minor child, _________________, is over

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the age of ____ years old and was called and sworn and presented testimony

on behalf of Petitioner.]

1. [Petitioner’s Motion for District Court’s Consent to Adoption

and Determination of Birth Father’s Consent Under § 43-104.22 has been

made pursuant to Neb. Rev. Stat. § 43-104(1)(b) and § 43-104.25 (2007).]

[Petitioner’s Verified Motion for Consent to Adoption has been made

pursuant to Neb. Rev. Stat. § 43-104(1)(b).]

2. This Court entered a decree of [divorce] [paternity] on

______________, 19/20___, in which it awarded custody of the minor child,

__________________, to the Petitioner, ________________, now known as

________________.

[ ] 3. The Respondent, ________________, signed a Consent and

Relinquishment for Adoption and gave his consent to the proposed adoption

of ___________ by ____________ on _____________, 20___.

4. ____________________ has been living with ___________________ and

________________, since [their marriage on] _____________, 19/20___.

_____________ desires to adopt _____________________.

5. It would be in the best interests of ______________ to be adopted

by ______________.

6. The Court gives its consent to the proposed adoption.

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7. The Court finds that the consent of ______________ is not required

pursuant to Neb. Rev. Stat. § 43-104.22 because _____________________. [List

applicable subsections of § 43-104.22 that have been proven.]

IT IS THEREFORE ORDERED that this Court consents to the proposed

adoption of __________, the minor child, by ___________________. This consent

is given pursuant to Neb. Rev. Stat. § 43-104(1)(b) in order that adoption

proceedings may commence in the County Court of Lancaster County,

Nebraska. [The Court further declares that the consent of _______________ to

the adoption of ____________ is not required under Neb. Rev. Stat. § 43-

104.22.]

IT IS FURTHER ORDERED that Respondent’s duty to pay child support is

terminated effective the first day of the month following the decree of

adoption entered by the County Court of Lancaster County, Nebraska.

IT IS FURTHER ORDERED that a certified copy of this order be provided

to ___________, Petitioner, for purposes of being presented to the County

Court of Lancaster County, Nebraska, in connection with the proposed

adoption proceedings therein.

[Still need to file additional documents after the Adoption Decree is

entered in order to terminate child support.]

Dated: __________________, 20___.

BY THE COURT:

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District Judge1COMMUNICATION AND CONTACT AGREEMENT

This Agreement is made pursuant to LB 744 (2016) between [Birth Parent] (hereinafter “_______________”), natural __________ of _________________ (hereinafter “_______________”) and [Adoptive Parents], of _______________. The purpose of this Agreement is to facilitate an understanding of and an agreement to post placement communication and contact between ____________ [Birth Parent] and _____________ [Adoptive Parents] and ________________ [Child]. The following terms will remain in effect until ________________ until the Agreement is modified or terminated by agreement of the parties or by court order. The parties specifically agree that the following communication and contact terms are in the best interest of the child:

1. [Birth Parent] is the biological _________ of _______________, date of birth ___________________________. [Adoptive Parents] are a married couple who are adopting or have adopted _______________ [child].

2. All of the parties to this Agreement are making this Agreement according to their own voluntary wishes and desires and not because of any threats or coercion.

3. The primary purpose of this Communication and Contact Agreement is to provide the guidelines for allowing contact between _______________ [child] and [Birth Parent] following adoption.

4. This Agreement may be approved by the court, but court approval is not required. Enforceability of this Agreement is not contingent upon court approval nor is it contingent on incorporation of this document into the final decree of adoption.

5. Prior to both execution of this Communication and Contact Agreement and execution of a written consent and relinquishment for adoption, ________________ [Birth Parent] was offered legal counsel of his/her choice independent from that of the adoptive parents, at the expense of the adoptive parents, and ________________ [Birth Parent] had the opportunity to obtain legal advice regarding this Communication and Contact Agreement before signing it.

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____ [Birth Parent] specifically waives the right to be represented by legal counsel in connection with the signing of this Communication and Contact Agreement.

OR (check one)

____ [Birth Parent] was represented by legal counsel of his/her choice, independent from that of the adoptive parent or parents, at the expense of the adoptive parent, and the identify of that attorney is ___________________.

6. Prior to executing a consent and relinquishment of the child for adoption, ________________ [Birth Parent] was offered, at the expense of the adoptive parents or agency, at least three hours of professional counseling.

____ [Birth Parent] received ____ hours of professional counseling.

OR (check one)

____ [Birth Parent] declined professional counseling.

7. The parties hereby agree to the following communication and contact after the placement for adoption:

(a) The prospective adoptive parents will provide __________ [Birth Parent] by and through their legal counsel, Susan K. Sapp, or by and through Facebook, or by and through text messages, photographs of _______________ and update letters, including, but not limited to, information regarding [his/her] health and school progress, a minimum of _____ times each year, at a time to be selected by the adoptive parents.

(b) [Birth Parent] shall have two (2) visitations with _______________ per year, upon a written request from [Birth Parent] to be received by the prospective adoptive parents no less than two weeks prior to the requested visitation date. These visits shall occur in or around ____________ and ___________ each calendar year and shall be a maximum of ______ (__) hours and a minimum of ______ (__) hours in length. [Birth Parent] shall attend these visitations alone, without any

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other friends or family, unless [Birth Parent] has requested the attendance of another individual in his/her visitation request and [Adoptive Parents] have given approval for such other individual to attend. The visitations shall be supervised by [Adoptive Parents] or someone designated by them, and shall take place at an appropriate site selected by [Adoptive Parents]. The parties further agree and understand that these visitations shall continue to occur on this schedule and on these terms as long as these visits are in the best interest of the child as determined by a licensed mental health care practitioner and are desired by the child. If the child does not desire to attend a visitation, said child is under no obligation to do so.

(c) If a visit needs to be cancelled because of illness or emergency, either on the part of [Birth Parent] or [Adoptive Parents], the parties agree to notify one another to set an alternate date. If [Birth Parent] is late for a visit by one-half hour, the visit will be terminated and not rescheduled. If [Birth Parent] fails to appear for a prearranged visit, and does not notify [Adoptive Parents] prior to the visit, the visit shall not occur nor be rescheduled. If [Birth Parent] fails to appear for ______ scheduled visits, the visitation schedule will terminate and not resume.

(d) If three consecutive visitations authorized by this Agreement are not exercised by [Birth Parent], or if [Birth Parent] brings any unauthorized individuals to the visitations, the right to visitation under this Agreement shall terminate.

(e) [Birth Parent] and any friends or family shall not make contact, nor attempt to make contact, with _______________ or [Adoptive Parents] at [his/her] home, school, in the community, through social media, by phone or by text, or at any other location or through any means, without the express knowledge and permission of [Adoptive Parents]. If [Birth Parent] or any friends or family do attempt to make contact with _______________ [child] at [his/her] home, school, in the community, through social media, by phone or by text, or at any other location or through any means, without the knowledge and permission of [Adoptive Parents], this Agreement will terminate in its entirety.

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(f) If [Birth Parent] should move out of the country or state, it would be at his/her own cost to come back for visitation. Additionally, if for any reason, [Adoptive Parents] should choose to relocate to another state, they will not be held responsible to bring _______________ back to Nebraska for a visit. However, [Adoptive Parents] do not foresee such a move and would not deliberately move out of state to avoid or inconvenience [Birth Parent]’s visits. [Birth Parent] would have to come to that state, however, at his/her own cost.

(g) [Adoptive Parents] and [Birth Parent] agree that all parties will refer to him/her as “[________]”, not mom or mommy or dad or daddy. Additionally, [Adoptive Parents] may choose to change _______________’s [child] name and [Birth Parent] agrees to refer to _______________ [child] by [his/her] new name if [Adoptive Parents] choose to change it.

(h) ____________ and ____________ agree to keep each other informed of their addresses and phone numbers. They will each notify the other of any serious injury or illness involving one another or the child as soon as reasonably possible thereafter.

(i) ____________ is encouraged to write letters to ____________ on a regular basis and ____________ may write to ____________ as often as he or she wishes.

(j) Telephone and text contact will be reasonable in both its frequency and the time frame in which it occurs. Unless urgent, telephone and text contact will be made between 9:00 a.m. and 8:00 p.m.

(k) The parties may change any or all of the terms of this agreement as they mutually agree. The parties may change the terms of this agreement without the consent of the court or the attorneys or agencies involved, if the parties determine that the communication and contact contemplated in this agreement is no longer indicated or necessary or becomes contrary to the best interests of ____________.

8. Neither the existence of, nor the failure of any party to comply with the terms of, a communication and contact agreement entered

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into under this section shall be grounds for (a) setting aside an adoption decree, (b) revoking a written relinquishment of parental rights or written consent to adoption, (c) challenging the adoption on the basis of duress or coercion, or (d) challenging the adoption on the basis that the agreement retains some aspect of parental rights by the relinquishing parent or parents.

9. If the child being adopted is 14 years of age or older at the time of placement, this Communication and Contact Agreement shall not be valid unless consented to in writing by the adoptee.

10. This Communication and Contact Agreement may be enforced by civil action. The court may enforce, modify or terminate this Agreement if it finds that (a) enforcing, modifying or terminating the Agreement is necessary to serve the best interests of the adoptee, (b) the party seeking to enforce, modify or terminate the Agreement participated in, or attempted to participate in, mediation in good faith or participated in other appropriate dispute resolution proceedings in good faith to resolve the dispute prior to filing the petition, and (c) when seeking to modify or terminate the Agreement, a material change in circumstances has arisen since the parties entered into the Agreement that justifies modifying or terminating the Agreement.

NO ADOPTION SHALL BE SET ASIDE DUE TO THE FAILURE OF THE ADOPTIVE PARENT OR PARENTS OR THE RELINQUISHING PARENT OR PARENTS TO FOLLOW THE TERMS OF THIS AGREEMENT OR A LATER ORDER MODIFYING OR TERMINATING THIS AGREEMENT. DISAGREEMENT BETWEEN THE PARTIES OR A SUBSEQUENT CIVIL ACTION BROUGHT TO ENFORCE, MODIFY, OR TERMINATE THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OF THE ADOPTION AND SHALL NOT SERVE AS A BASIS FOR ORDERS AFFECTING THE CUSTODY OF THE CHILD. THE COURT SHALL NOT ACT ON A PETITION TO ENFORCE, MODIFY, OR TERMINATE THIS AGREEMENT UNLESS THE PETITIONER HAS PARTICIPATED IN, OR ATTEMPTED TO PARTICIPATE IN, MEDIATION IN GOOD FAITH OR PARTICIPATED IN OTHER APPROPRIATE DISPUTE RESOLUTION PROCEEDINGS IN GOOD FAITH TO RESOLVE THE DISPUTE PRIOR TO FILING THE PETITION.

Dated this ____ day of ________________, 20___.

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___________________________________

__________________, Prospective Adoptive Father

___________________________________

__________________, Prospective Adoptive Mother



Subscribed and sworn to before me, a Notary Public, by ______________ and ________________ this ____ day of ____________, 20_____.

____________________________________Notary Public

Dated this ____ day of _________________, 20____.

____________________________________[Biological Parent], Natural Parent



Subscribed and sworn to before me, a Notary Public, by [Birth Parent] this ____ day of ______________, 20____.

____________________________________Notary Public

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GUARDIAN AD LITEM/SUBSTITUTE CONSENT

The forms in this section only apply when substitute consent must be

obtained for a birth parent who has abandoned his or her child. Most

commonly, this situation only arises in step-parent adoptions and when the

birth parents were married at the time of the child’s birth. Refer to the

section on Adoption Procedures for a further discussion of these documents.

You should typically send notice of the adoption hearing to the birth parent

at his or her last known address as a last attempt to make contact.

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____________________________, ) PETITION FOR ADOPTIONa minor child. ) [containing motion for GAL]

COME NOW, _______________ and _________________, husband and wife,

petitioners herein, and respectfully represent to the Court as follows:

1. Petitioners are residents of ______________, _____________

County, Nebraska.

2. ___________________ is a minor child who has resided with

the petitioners for more than six months next preceding the filing of this

petition. Petitioner, _________________, is ____________’s step[father] [mother]

by virtue of [his] [her] marriage to ___________________,

_______________________’s [mother] [father], on ___________, _____.

3. ________________ was born [out of wedlock] [in wedlock] to

___________________ and to ________________________, on ___________________,

_____, in ____________________.

[ ] 4. Counsel for ___________________ has made numerous attempts to

contact __________________ [and successfully reached him via telephone on

_______________ and _________________. In both conversations, Mr. ____________

stated that he intended to sign relinquishment papers so that the child could

be adopted but first wanted to speak with ______________ privately]. Refer to

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the Affidavit of ______________ attached hereto as Exhibit “1” and

incorporated herein by reference regarding his/her attempts to contact Mr.

________________. In spite of a final attempt to contact Mr. ____________, he

has not been heard from again and has abandoned ______________________ as

he has made no attempt to see or communicate with the minor child since

his/her birth.

[ ] 5. Pursuant to Neb. Rev. Stat. § 43-105(3), when consent cannot be

given as otherwise provided in Neb. Rev. Stat. § 43-104, consent shall be

given by the guardian or guardian ad litem of such minor child appointed by

a court, which consent shall be authorized by the court having jurisdiction of

such guardian or guardian ad litem. As the minor child was abandoned by

his biological father [at birth] and has neither responded to attempts to

obtain a relinquishment nor made any effort to parent the child, substitute

consent is required as no other consent can be given.

6. Pursuant to Neb. Rev. Stat. §43-104.10, Mrs.

_____________________ was informed of the legal and medical need to

determine, whenever possible, the paternity of the child prior to an adoption,

and that her failure or refusal to accurately identify the biological father or

possible biological fathers could threaten the legal validity of any adoptive

placement of the child. (See attached Exhibit 1 at #22.)

7. Pursuant to Neb. Rev. Stat. §43-104.09, attached hereto as

Exhibit ”1” and incorporated herein by reference, is the biological mother’s

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Affidavit of Identification, which identified [only one possible biological

father, ______________________]. [No individual has been adjudicated to be the

legal father of the child nor has any individual ever established a familial

relationship with the child as putative father.]

8. Pursuant to Neb. Rev. Stat. §43-104.16, counsel for Mrs. _________

executed an affidavit stating that due diligence was used to identify and give

actual or constructive notice to the biological father or possible biological

fathers of the child, and stating the methods used to identify and give actual

or constructive notice to those persons. The Affidavit of Due Diligence is

attached hereto as Exhibit “2” and is incorporated herein by reference.

9. Pursuant to Neb. Rev. Stat. §43-104.08 and Neb. Rev. Stat. §43-

104.15, on ______________, ____, by certified mail, return receipt requested,

the biological father, ____________________, was notified at his last known

address of Mrs. ________________’s plan to consent to the adoption of

__________________ by her husband, ____________________. The notice, which

was titled “In Re Relinquishment of __________________________ For Adoption”,

informed Mr. ___________________ of his rights. (See attached Exhibit 2-__.)

Counsel for Mrs. ____________________ also reviewed the categories of possible

biological fathers in Neb. Rev. Stat. §43-104.12, and determined that neither

Mrs. ___________________ nor counsel have any information about any other

possible biological fathers of ____________________, other than

__________________ identified by Mrs. ______________ and, therefore, Mr.

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___________’s notice was the only notice required under the statute.

[Warning: If notice was published, was a copy of the notice mailed

to birthfather’s last known address?]

10. Attached to Exhibit 2-___ is the green, return receipt, restricted

delivery card signed by Mr. ______________ on ________________, _____,

indicating that Mr. _____________ received the official notice mailed to him on

________________, _____.

[ ] 11. On ____________________, _____, ______________________ signed a

Denial of Paternity and Waiver of Parental Rights, in which Mr.

_________________ expressly waived further notice of any hearings related to

____________________________. The Denial of Paternity and Waiver of Parental

Rights is attached hereto as Exhibit “___” and is incorporated herein by

reference.

[ ] On ___________________, ________________________ relinquished the minor

child and consented to the minor child’s adoption by adopting parent’s

name only . The Consent and Relinquishment for Adoption is attached

hereto as Exhibit “ “ and is incorporated herein by reference. Mr.

__________________ also executed an Affidavit Regarding Nonconsent Form as

required by Neb. Rev. Stat. § 43-106.02, on ______________________. The

Affidavit is attached hereto as Exhibit “___” and is incorporated herein by

reference. On __________________, Mr. _____________________ completed a

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Nebraska Adoption Medical History attached hereto as Exhibit “___”and


12. Petitioners specifically allege substantial compliance with Neb.

Rev. Stat. §43-104.08 through Neb. Rev. Stat. §43-104.16. [Petitioners

specifically allege substantial compliance with Neb. Rev. Stat. §43-104.08

through Neb. Rev. Stat. §43-104.16, in that all procedures complied with the

laws of the state of __________ which is equivalent to substantial compliance

with the laws of the state of Nebraska.]

13. No putative father has filed a Request for Notification of Intended

Adoption nor a Notice of Objection to Adoption and Intent to Obtain Custody

with the Nebraska Department of Social Services regarding

__________________________. An Affidavit from the Department of Social

Services attesting to the fact that no Request for Notification of Intended

Adoption and no Notice of Objection to Adoption and Intent to Obtain

Custody have been filed with the Nebraska Department of Social Services is

attached as Exhibit “___” and incorporated herein by reference. [Affidavit

required even when baby born out of state or when birthfather signs

Relinquishment.]

14. ___________________________ and __________________________ were

[divorced] [parties to a paternity proceeding] on ________________, 20___, in

____________ County, Nebraska. [A Motion to Consent to Adoption and for

determination of birthfather’s consent pursuant to Neb. Rev. Stat. § 43-

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104.22 and § 43-104.25, has been filed with the ___________ County District

Court, as such consent is required by Neb. Rev. Stat. § 43-104(1)(b), and

upon receiving such consent to the adoption, counsel for the Petitioners will

file a certified copy of such consent with this Court prior to the court hearing

hereon.] [Use the following for a divorce: A Verified Motion for Consent

to Adoption, as such consent is required by Neb. Rev. Stat. § 43-104(1)(b),

has been filed with the Lancaster County District Court and upon receiving

such consent to the adoption, counsel for the Petitioners will file a certified

copy of such consent with this Court prior to the court hearing hereon.]

15. Pursuant to Neb. Rev. Stat. § 43-107(1)(b)(ii), a federal criminal

history record information check and a Nebraska Department of Health and

Human Services central register check, both on _____________________ are

attached hereto as Exhibits “___” and “___” and are incorporated herein

by reference.

16. Petitioner, adopting parent’s name only is willing and anxious

to adopt ________________, and biological parent’s name consents to the

adoption of ________________ by ______________________ because it is in the

best interests of the child that she/he be adopted by

__________________________. The Consent to Adoption signed ______________,

_____, is attached hereto as Exhibit “___” and is incorporated herein by

reference.

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WHEREFORE, Petitioners pray:

1. That this matter be set for hearing at a time certain fixed by the Court.

[ ] 2. That a Guardian Ad Litem be appointed to give substitute consent to the adoption of _________________ on behalf of ___________________, pursuant to Neb. Rev. Stat. § 43-105.

3. That notice of the adoption hearing be given as required by law.

4. That a decree of adoption be entered in conformity with the provisions of law.

5. That the Court decree a change of name of the minor child to: _______________________. [That the name of the minor child remain _________.]

6. For such other and further relief as may be appropriate.

Dated this ___ day of _______________, _____.

Petitioners

By: Cline WilliamsCline Williams

Wright Johnson & Oldfather, L.L.P.233 South 13th Street1900 U.S. Bank BuildingLincoln, Nebraska 68508-2095


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ACKNOWLEDGMENT



__________________________________, being first duly sworn upon oath, deposes and states that he appeared before me this _____ day of ________________, _______, a duly authorized notary public, known to be the identified person described above and who has executed the foregoing Petition and acknowledge the same to be his free and voluntary act and deed.

WITNESS:


Notary Public



__________________________________, being first duly sworn upon oath, deposes and states that she appeared before me this _____ day of ________________, _______, a duly authorized notary public, known to be the identified person described above and who has executed the foregoing Petition and acknowledge the same to be her free and voluntary act and deed.

WITNESS:


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Notary Public

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)

[Although you may choose to use this separate form, you should typically include your motion within the Petition.]


IN THE MATTER OF THE ADOPTION ) AD__-_____OF: )

____________________________, ) MOTION FOR APPOINTMENT OFa minor child. ) GUARDIAN AD LITEM

COME NOW petitioners, __________________________ and move this Court to appoint a guardian ad litem herein for the sole purpose of obtaining a substitute consent to adoption as required by Neb. Rev. Stat. § 43-105(3) when consent cannot be given as otherwise provided in Neb. Rev. Stat. § 43-104. Petitioners request that the guardian ad litem investigate the whereabouts of the biological father of the prospective adoptive child, __________________, to determine whether substitute consent is appropriate in this case, and further to determine whether it is in the best interests of this child to be adopted by the petitioners.

WHEREFORE, petitioners request that this Court appoint a guardian ad litem for the sole purpose of investigating and obtaining a substitute consent to adoption in the above entitled matter.

Dated this ____ day of _____________.

Petitioners

By: Cline WilliamsCline Williams

Wright Johnson & Oldfather, L.L.P.233 South 13th Street1900 U.S. Bank BuildingLincoln, Nebraska 68508-2095


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IN THE MATTER OF THE ADOPTION ) AD___-_____OF: ) ORDER APPOINTING

____________________________, ) GUARDIAN AD LITEMa minor child. ) [AND ORDER FOR HEARING]

[ ] On this ______ day of __________________, 20____, this matter comes

before the Court on the Motion of petitioners to appoint a guardian ad litem

for the sole purpose of considering and providing a substitute consent to

adoption as required by Neb. Rev. Stat. § 43-105 (2004).

[ ] IT IS THEREFORE ORDERED that ___________________________ is

appointed guardian ad litem in this adoption matter.

[ ] IT IS ORDERED that the hearing requested in the Petition for Adoption

be held on ______________________, 20___, at ________ a.m./p.m. in this Court,

and that notice of such hearing be given to all interested persons in the

manner provided by law.

[ ] That ______________________, attorney at law, is hereby appointed

Guardian ad Litem to give substitute consent to the adoption of

____________________ on behalf of _______________________ pursuant to Neb.

Rev. Stat. § 43-105.

Dated ___________________, 20___.

BY THE COURT:

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County Court Judge

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IN THE MATTER OF THE ADOPTION ) AD___-___OF )

________________________, ) NOTICE OF HEARINGa minor child. )

You are hereby notified that:

1. A hearing regarding the adoption of ______________________ will be

held on __________________, 20___, at _____ a.m./p.m., in the County Court of

Lancaster County, Lincoln, Nebraska, located at 575 South 10th Street.

2. The Court has appointed _________________, attorney at law, as

Guardian Ad Litem, and he/she will represent the minor child in these

proceedings.

Dated this _____ day of _________________, 20___.

CLINE, WILLIAMS, WRIGHT, JOHNSON & OLDFATHER, L.L.P.233 South 13th Street1900 U.S. Bank Bldg.Lincoln, Nebraska 68508-2095Telephone: (402) 474-6900Attorneys for Petitioners

By:


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IN THE MATTER OF THE ADOPTION ) AD___-____OF )

_________________________________, ) AFFIDAVIT OF MAILINGa minor child. ) NOTICE OF HEARING



Affiant, deposes and says:

1. Affiant is the attorney for ______________________, Petitioners.

2. Publication of notice of the above proceeding was waived by court order.

3. On ___________________, 20___, affiant sent by [Federal Express] [certified mail, return receipt requested] a copy of the notice required in this proceeding to ____________________ at ________________________________________.

Further, your affiant states that, after diligent investigation and inquiry, the Petitioners and affiant were unable to ascertain and are not aware of the post office address of any other party appearing to have a direct legal interest in the above-entitled action or proceeding other than those to whom affiant has mailed in writing, and other than those who have waived in writing such notice as evidenced by the files herein.

Dated this ____ day of ___________________, 20___.


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SUBSCRIBED AND SWORN to before me this _____ day of ______________, 20___, by Susan K. Sapp.

Notary Public

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IN THE MATTER OF THE ADOPTION ) AD___-_____OF: ) GUARDIAN AD LITEM’S REPORT

____________________________, ) AND APPLICATION FORa minor child. ) AUTHORITY TO CONSENT TO

) ADOPTION

On the ___ day of ___________, 20__, the undersigned, the duly appointed

Guardian ad Litem of the above referenced minor child, visited the home of

_______________ and _________________, located at ___________________, Lincoln,

Nebraska. ________________, _________________, and ______________________

were all present. The minor child appeared to be well cared for and well

behaved.

(Adoptive Parent) is _______ years of age and is a (profession) .

[His] [Her] income is adequate for [him] [her] to properly care for the minor

child. [He and his wife] [She and her husband] have been residents of

Lincoln, Nebraska in excess of _________ years.

______________________ is the step[father][mother] of ____________________

and the minor child has continuously resided with __________________ and

____________________ since their marriage on _____________________, 19/20___.

Since the time of [his] [her] marriage to ___________________,

___________________ has cared for the minor child as [his] [her] own and [he]

[she] desires to adopt the minor child.

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The natural [father] [mother] of the child, _____________________, has not

contributed to the minor child’s support nor been in contact with the child

[for a period of __________ years before the commencement of these

proceedings] [since the child’s birth].

It is my opinion that _______________________ is a fit and suitable person to

adopt _____________________ and it is my recommendation that the adoption is

in the best interests of _________________, the minor child, and that the

adoption take place.

WHEREFORE, your Guardian ad Litem prays that the Court authorize and

direct [him][her] to execute a consent to the adoption of the minor child by

_________________, pursuant to Neb. Rev. Stat. § 43-105(3).

Dated ___________________, 20___.

___________________, Guardian ad Litem

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IN THE MATTER OF THE ADOPTION ) AD___-_____OF: ) ORDER AUTHORIZING

____________________________, ) GUARDIAN AD LITEM’S CONSENTa minor child. ) TO ADOPTION

On this _____ day of _________________, 20___, this matter comes on for

hearing upon the report of the Guardian ad Litem and application of the

Guardian ad Litem for the approval of this Court of [his][her] consent to the

adoption of ___________________ by __________________. From the evidence

adduced, the Court finds and determines:

1. That there is clear and convincing evidence that

_________________, the natural [mother] [father] of __________________________

has abandoned _____________________ for at least six months preceding the

filing of the petition for adoption.

2. That it is in the best interests of __________________________ that

pursuant to Neb. Rev. Stat. § 43-105(3), the Guardian ad Litem herein should

be authorized and directed to execute a consent to the adoption of the child

by ________________________, and that the same be approved by this Court.

IT IS THEREFORE ORDERED that __________________________, the Guardian

ad Litem herein, be authorized and directed to execute [his] [her] consent to

the adoption of __________________________ by __________________________, and that

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such consent is hereby approved by this Court having jurisdiction of such

adoption.

IT IS FURTHER ORDERED that Guardian ad Litem fees are hereby

authorized in the amount of $_____________________ payable to

____________________.

Dated: __________________, 20___.

BY THE COURT

County Court Judge

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IN THE MATTER OF THE ADOPTION ) AD___-_____OF: ) GUARDIAN AD LITEM’S

____________________________, ) CONSENT TO ADOPTIONa minor child. )

COMES NOW _____________________, Guardian ad Litem herein, and

states as follows:

1. I am the duly-appointed Guardian ad Litem of

____________________ and pursuant to application made to this Court, I have

been authorized to give substitute consent to the adoption of

___________________________ by _________________________, pursuant to Neb.

Rev. Stat. § 43-105(3).

2. I have personally visited and observed the home of

________________ and __________________.

3. I believe _____________________________ to be a fit and

proper person to adopt _________________.

4. The proposed adoption is in the best interests of

_____________________.

5. I hereby freely and voluntarily consent to the adoption of

_________________ by _________________________________.

Dated ___________________, 20___.

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Witness _________________, Guardian ad Litem



On this _____ day of ___________, 20___, before me, a duly authorized notary public in and for the State of Nebraska, personally appeared ________________, known to me to be the identical person described in and who executed the above instrument in the presence of a witness, who acknowledged the same to be his voluntary act and deed for the purposes therein mentioned.

IN WITNESS WHEREOF I have hereunto set my hand on the day and year last above mentioned.

Notary Public

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TOP 20 WAYS TO MAKE A CRITICALERROR IN AN ADOPTION CASE

1. Failing to take time to talk to and get to know the birth mother; failing to understand the difficulties of her situation and why she might not understand your role, what confidentiality means, and why she might not want to tell you the whole truth on tough issues.• Your role is advocate; you work for her.• Your role is not to get baby for adoptive couple.

2. Being afraid to ask hard or uncomfortable questions on important issues.• drug, alcohol exposure - Birth Mother Interview• birth father issues• promises made to her - money, contact• pressure she is under• prior attorney/agency, prior couples

3. Matchmaking.• don’t!• emotional involvement

4. Not at least trying to make it mandatory that the birth mother have counseling— a real counselor, not just you. Help her get connected with someone experienced and make arrangements for payment.• agencies provide experienced, affordable counseling - use them• help her make connections

5 Allowing an adoption plan to proceed without a completed home study for the adoptive parents. National registry check is now mandatory. Don’t try to strong arm an agency into doing a quick and dirty study.• purpose of home study

6. Dual representation of birth parent(s) and adoptive parents.• don’t!• never appropriate• if anyone needs an attorney, it is the birth mother• insist

7. Not having communication with the hospital before delivery and during the hospital stay; relying on nurses and social workers to manage contact and relationship between birth parents and adoptive parents.

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• send a letter ahead to the hospital• send release of information• send authorization for 3rd party care• call the social worker or charge nurse• go there!

8. Taking a relinquishment before birth mother is truly ready or on someone else’s schedule; and in all cases the law says NO SOONER THAN 48 HOURS after birth; time should be written on the documents.• adoptive parents’ plans don’t dictate timing• your schedule doesn’t dictate timing

9. Not following ICWA; not following the Interstate Compact laws when a baby crosses state lines for purposes of adoption.

10. Not cooperating with the hospital rules and not expecting to need to be there at time of dismissal.• partner with the hospital• follow hospital policy

11. Not having a separate person be a witness and the notary; being the notary yourself.• statute requires separate person• notary is third person to ask questions in front of

12. Not getting a signed non-consent form and medical history from an available birth father, even one who denies paternity.• if birth father is available, get his nonconsent form and medical and

social history, etc.

13. Not reading the statutes in their entirety and understanding each section. Not reading the supplements before every adoption you handle.• In the last two years, changes to when a consent is needed from

another court, 48 hours, national criminal history check.

14. Allowing improper payment of reimbursable expenses.• “but for” rule• interstate

15. Not addressing expectations about communication and contact post-placement; instead just assuming that is something between the adoptive parents and birth parents.

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16. Pleading more than you have to prove in your petition. Example: pleading abandonment in a case where the birth father was properly noticed and failed to file his five day notice with HHS.

17. Treating a married birth father like an unmarried birth father–and vice versa.

18. Using substitute consent in § 43-105 unnecessarily; asking for a GAL unnecessarily.

19. Not going into sufficient detail in the petition, affidavit of identification and affidavit of due diligence.• tell judge everything

20. Failure to comply with the unwed birth father statutes.

a. Lack of due diligence (getting whole truth, finding birth father, using internet, private investigator, sheriff)

b. Improperly signed green card (post offices delivers improperly)c. Not getting verification of Request for Notification of Intended

Adoption before birthd. Not checking the registry after 5 business days, plus mailing timee. Relying on Bureau of Vital Statistics employees to tell you the

lawf. Delaying or procrastinating in noticing birth fatherg. Not making sure you have notice to ALL possible birth fathers;

not checking and re-checking conception dates, etc.h. Not giving careful thought to when, where and how to notice

birth father; trying to be cute, clever or sneakyi. Publishing without also sending regular mail notice to last known

address (recent case)j. Publishing in wrong place or wrong paper (be able to support

your publication)

4824-3470-8267, v. 1

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understanding adoption procedures in nebraska - … · web viewin light of the obergefell v. hodges...

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