Adoption of Kassandra B., In re

• Citation: 540 N.W.2d 554,248 Neb. 912
• Decision Date: 08 December 1995
• Docket Number: No. S-94-101,S-94-101
• Parties: IN RE ADOPTION OF KASSANDRA B. and Nicholas B. Timothy L. SAVAGE and Karen M. Savage, Appellants, v. Martin GOMEZ, Intervenor-Appellee.
• Court: Supreme Court of Nebraska

Page 554

540 N.W.2d 554

248 Neb. 912

IN RE ADOPTION OF KASSANDRA B. and Nicholas B Timothy L. SAVAGE and Karen M. Savage, Appellants, v. Martin GOMEZ, Intervenor-Appellee.

No. S-94-101.

Supreme Court of Nebraska.

Dec. 8, 1995.

Syllabus by the Court

1. Jurisdiction. Statutory authority to exercise subject matter jurisdiction may be raised sua sponte by a court.

2. Adoption: Statutes. The matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed.

3. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties.

4. Adoption: Pleadings. Neb.Rev.Stat. § 43-102 (Reissue 1988) demands that certain consents or substitute consents be filed with the adoption petition.

5. Adoption: Parent and Child. Neb.Rev.Stat. § 43-104(3) (Reissue 1993) provides that consent to an adoption is required from both parents if living, subject to certain exceptions.

6. Adoption: Parent and Child. When a biological parent's consent is not required by Neb.Rev.Stat. § 43-104(3) (Reissue 1993), the prospective adoptive parents must obtain substitute consent as specified by Neb.Rev.Stat. § 43-105 (Reissue 1993).

7. Statutes: Legislature: Intent. A court must give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense and, if possible, discover the Legislature's intent from the language of the statute itself.

8. Adoption: Courts: Jurisdiction. Without requisite consents, a county court lacks authority, or jurisdiction, to entertain an adoption proceeding.

9. Jurisdiction: Appeal and Error. When a lower court lacks the authority to exercise its subject matter jurisdiction so as to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.

10. Judgments: Jurisdiction: Collateral Attack. A judgment entered by a court which lacks subject matter jurisdiction is void. It is the longstanding rule in Nebraska that such a void judgment may be raised at any time in any proceeding.

Herbert K. Elworth and Roger K. Johnson, of Casey, Elworth & Johnson, Plattsmouth, for appellants.

Catherine Mahern, of Creighton Legal Clinic, Houston, TX, for intervenor-appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

PER CURIAM.

Martin Gomez, the father of Kassandra B. and Nicholas B., children born out of wedlock, contests their adoption by appellants, Timothy L. Savage and Karen M. Savage. The birth mother, Anita Bechtold, had given custody of the two children to an adoption agency, K.E.S.I.L., for the purpose of adoption. Bechtold falsely told K.E.S.I.L. that she did not know the identity of the children's father(s). K.E.S.I.L. placed the children in the Savages' home, and the Savages eventually filed an adoption petition in the county court for Cass County. Gomez discovered the pending adoptions, entered his opposition, and sought custody of the children. After a hearing, the county court terminated Gomez' and Bechtold's parental rights and placed custody of the children in K.E.S.I.L. for placement with a suitable adoptive family. No adoption decree was either entered or denied. The district court for Cass County reversed the county court's order terminating Gomez' rights. The Court of Appeals affirmed the district court and granted Gomez immediate custody of the children because Bechtold had relinquished her parental rights. We granted further review. Our review of the record reveals that the county court was without statutory authority to exercise subject matter jurisdiction so as to entertain the adoption proceedings in which parental rights were terminated. A judgment entered by a court which lacks the authority to exercise subject matter jurisdiction is void. We therefore vacate the orders of the county court terminating parental rights and placing custody in K.E.S.I.L. and remand the cause to the Court of Appeals with directions to remand to the district court for further remand to the county court to dismiss.

BACKGROUND

Gomez and Bechtold met when they were teenagers. They began dating, and on July 23, 1982, they had a child, Jamie. Although they never married, Gomez and Bechtold began living together in 1984. The couple had two more children, Kassandra, born May 4, 1986, and Nicholas, born July 17, 1989. Gomez was not identified as the father on any of the children's birth certificates, but the parties have stipulated that he is the biological father.

In or about 1986, Gomez left Bechtold and the then two children for about 6 months and moved to another state. During that time, he provided no support for his children and did not contact them or their mother. However, Gomez and Bechtold reunited in December 1987.

During the time that Gomez and Bechtold lived together, both worked at various jobs with some periods of unemployment. Gomez partially supported Bechtold and the children with his wages, unemployment income, and a workers' compensation settlement. Bechtold attended cosmetology school for 14 months and began a career in hairstyling in 1989.

Gomez and Bechtold separated on August 10, 1990, after Bechtold asked Gomez to leave. Gomez maintained some contact with his children but provided little financial support. During 1990, Gomez gave Bechtold about $400 to $500 and earned approximately $7,500. Gomez talked with his children once or twice a week by phone and took them for occasional excursions and visits.

Gomez has a history of alcohol abuse and has been arrested several times for driving while under the influence and for disorderly conduct. He has admitted to smoking marijuana in the past.

Bechtold testified that during the summer of 1991, she was having a difficult time financially. Bechtold did not think she could take care of the children by herself, and she concluded that she could not rely on Gomez for any financial support. Bechtold decided to place the two younger children for adoption.

Bechtold contacted an adoption agency in California and learned that she needed Gomez' consent before the children could be placed for adoption. Bechtold discussed adoption with Gomez, but he refused to give his consent.

In October 1991, Bechtold contacted the K.E.S.I.L. adoption agency. Knowing she needed Gomez' consent, Bechtold lied to K.E.S.I.L. and stated that she did not know the identity of the children's father(s). Bechtold placed Kassandra and Nicholas in K.E.S.I.L.'s custody on October 19. On November 2, Bechtold signed relinquishment forms for each child.

On the same day that Bechtold signed the relinquishment forms, Kassandra and Nicholas were placed with appellants, the Savages. The Savages signed a "Child Acceptance Agreement," in which they acknowledged that K.E.S.I.L. had advised them that "until finalization in Nebraska Courts, this adoptive placement is one they term 'legal risk' [sic] because the birth fathers of the children have not been named, identified on the child's birth records or signed a relinquishment of parental rights." K.E.S.I.L. was paid $7,500 by the Savages.

Gomez learned on November 11, 1991, that the two children had been placed for adoption, when he telephoned Bechtold to discuss the children's attendance at his upcoming wedding. Bechtold told Gomez that she had placed the children for adoption but refused to give him any further information. Gomez asked a friend of his mother, an attorney, for advice. At the attorney's suggestion, Gomez filed two "Notice of Intent to Claim Paternity" forms with the Department of Social Services (DSS) on November 12, 1991. It was not until July 1992 that an employee of K.E.S.I.L. informed the Savages of the existence of Gomez and his paternity claims.

On October 20, 1992, the Savages filed a petition for adoption in the county court for Cass County. In their petition, the Savages stated that Bechtold had relinquished the children to the care, custody, and control of K.E.S.I.L. As required by Neb.Rev.Stat. § 43-102 (Reissue 1988), the Savages attached to the petition consents from K.E.S.I.L. and the mother. Their petition further alleged that a notice of intent to claim paternity was filed with DSS by Gomez claiming paternal rights to the children. Their petition further alleged that the claim of paternity should not be recognized by the court pursuant to the provisions of Neb.Rev.Stat. § 43-104.02 (Reissue 1993) for the reason that such claim is barred by not having been filed within 5 days after the birth of each of the children.

By order of the county court, Gomez received notice of the Savages' adoption petition. Gomez filed a motion in opposition to the adoption and a request for custody citing Neb.Rev.Stat. § 43-104.06 (Reissue 1993). On July 20 and 21, 1993, the county court conducted a hearing regarding the adoption petitions and Gomez' opposition.

By its order dated August 23, 1993, the county court held Bechtold's parental rights had been terminated by reason of her relinquishments. The county court, referring to Neb.Rev.Stat. § 43-292(2), (3), and (4) (Reissue 1993), of the Nebraska Juvenile Code, concluded Gomez was not a fit parent and terminated Gomez' parental rights. The county court placed custody of the children with K.E.S.I.L. for suitable placement with an adoptive family.

Gomez appealed to the district court for Cass County. The district court held that the county court was without jurisdiction to consider termination of Gomez' parental rights under the juvenile code. The district court reversed the holdings of the county court and remanded the matter for further proceedings.

The Savages appealed to the Nebraska Court of Appeals. In re...