In re Adoption of Luke

• Decision Date: 08 March 2002
• Docket Number: No. S-01-053.,S-01-053.
• Citation: 263 Neb. 365,640 N.W.2d 374
• Parties: In re ADOPTION OF LUKE. B.P. and A.E., Appellants, v. State of Nebraska, Appellee.
• Court: Nebraska Supreme Court

640 N.W.2d 374

263 Neb. 365

In re ADOPTION OF LUKE.

B.P. and A.E., Appellants, v. State of Nebraska, Appellee.

No. S-01-053.

Supreme Court of Nebraska.

March 8, 2002.

Amy A. Miller, Omaha, of American Civil Liberties Union Foundation of Nebraska, for appellants.

Don Stenberg, Attorney General, and L. Steven Grasz, Lincoln, for appellee.

David S. Buckel, Adam L. Aronson, Patricia M. Logue, and Susan Sommer, of Lambda Legal Defense and Education Fund, Inc., Robert F. Bartle, of Bartle & Geier, Lincoln, and G. Michael Fenner, Omaha, for amicus curiae Lambda Legal Defense and Education Fund.

Siegfried H. Brauer, of Brauer Law Office, Kearney, for amicus curiae Family Research Institute.

James D. McFarland, Lincoln, of McFarland Law Office, for amicus curiae Nonpartisan Family Coalition.

W. Craig Howell, of Domina Law, Omaha, and Nory Miller and Nichole G. Berner, of Jenner & Block, L.L.C., for amici curiae American Psychological Association et al.

Susan Ann Koenig, of Law Office of Susan Ann Koenig, P.C., L.L.O., for amici curiae The Alliance for Children's Rights et al.

David T. Bydalek, Lincoln, for amicus curiae Family First.

Rocky C. Weber, of Crosby Guenzel, L.L.P., Lincoln, and Robert J. Muise, of Thomas More Law Center, for amicus curiae The Nebraska Catholic Conference.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and INBODY, Judge.

PER CURIAM.

NATURE OF CASE

B.P. and A.E. (collectively appellants) appeal from the order of the Lancaster County Court which denied the adoption petition jointly filed by appellants, two nonmarried persons, in which A.E. sought to adopt Luke, the minor biological son of B.P. The outcome of this appeal is controlled by the provisions of the Nebraska adoption statutes, Neb.Rev.Stat. § 43-101 et seq. (Reissue 1998 & Cum.Supp.2000). The county court correctly concluded that on the record made in this case, Luke was not eligible for adoption due to the absence of a valid relinquishment by B.P. Accordingly, we affirm.

STATEMENT OF FACTS

B.P. is the biological mother of Luke, a minor child born on December 20, 1997. Luke was conceived by artificial insemination using semen from an anonymous donor from the University of Nebraska Medical Center's genetic semen bank. Accordingly, Luke's biological father is unknown and is not a party to this action. For purposes of the Nebraska adoption statutes, Luke was born "out of wedlock."

On October 2, 2000, appellants jointly filed a verified petition in which A.E. sought to adopt Luke. B.P. indicated her "consent" in the petition and in other supporting documents. B.P. did not file a relinquishment of her parental rights to Luke. To the contrary, she indicated on an affidavit attached to the petition that she did not intend to relinquish Luke. The only relief sought in this proceeding was the adoption of Luke by A.E.

A home study of appellants' household was conducted by an adoption specialist. The specialist recommended A.E.'s adoption of Luke be approved by the court.

On November 14, 2000, trial was held on the adoption petition. Appellants testified in support of the petition. A file, consisting of several documents including the home study, was admitted into evidence. No one entered an appearance, and no evidence was offered in opposition to the petition.

In an order filed December 1, 2000, the county court denied the petition for adoption. The county court concluded that Nebraska's adoption statutes do not provide for "two non-married persons to adopt a minor child, no matter how qualified they are." The county court also concluded that "the statu[t]es permit a single adult person to adopt a child after all necessary consents and relinquishments have been filed." Appellants timely appeal the county court's order denying the adoption petition.

ASSIGNMENT OF ERROR

On appeal, appellants have assigned three errors, which we consolidate and restate as one: The county court erred in denying the adoption petition jointly filed by appellants in which A.E. sought to adopt Luke.

STANDARD OF REVIEW

Appeals in adoption proceedings are reviewed by an appellate court for error appearing on the record. In re Guardianship of T.C.W., 235 Neb. 716, 457 N.W.2d 282 (1990); In re Adoption of Leslie P., 8 Neb.App. 954, 604 N.W.2d 853 (2000). The matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed. In re Adoption of Hemmer, 260 Neb. 827, 619 N.W.2d 848 (2000); In re Adoption of Kassandra B. & Nicholas B., 248 Neb. 912, 540 N.W.2d 554 (1995). Interpretation of a statute presents questions of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the lower court. Foote v. O'Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).

ANALYSIS

CONSTITUTIONAL CLAIMS NOT AT ISSUE

Appellants and the State devote considerable analyses in their briefs to the potential federal and state constitutional issues which may be implicated in this case. The constitutional issues addressed by appellants and the State on appeal were neither presented nor ruled on in the county court. We have stated that when an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition. V.C. v. Casady, 262 Neb. 714, 634 N.W.2d 798 (2001); Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001). Accordingly, we do not consider the constitutional claims of appellants and the State and our analysis is limited to application of the Nebraska adoption statutes to this case.

POSITIONS OF APPELLANTS AND STATE

Contending that the county court erred, appellants argue that the plain language of the adoption statute at § 43-101(1), which provides that "any minor child may be adopted by any adult person or persons," permits adoption of the minor child, Luke, by A.E.; the biological parent B.P. need not relinquish her parental rights in order for A.E. to adopt Luke; and the proposed adoption is in Luke's best interests. Appellants advance various constitutional arguments not considered here for the reasons outlined above.

Contending that the county court was correct, the State argues that the adoption statutes read as a whole do not provide that two nonmarried persons may jointly adopt a minor child and that the adoption statutes only provide for adoption of a child without the relinquishment of a biological parent's rights in the case of a stepparent where a spouse is the adopting party. The State advances various constitutional arguments not considered here for the reasons outlined above.

ADOPTION IS STATUTORY

We have long recognized that "statutes providing for adoption are of civil and not common law origin.... Adoption proceedings were unknown to the common law." (Citations omitted.) In re Petition of Ritchie, 155 Neb. 824, 827-28, 53 N.W.2d 753, 755 (1952). The adoption laws were first codified in 1897 and have been amended in 1943, 1984, 1985, and 1999. See, § 43-101 et seq.; Neil v. Masterson, 187 Neb. 364, 191 N.W.2d 448 (1971). We have stated that "the matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed." In re Adoption of Kassandra B. & Nicholas B., 248 Neb. 912, 918, 540 N.W.2d 554, 558 (1995). We have recently noted that it is inappropriate for this court to "`extend the rights of adoption beyond the plain terms of the statutes.'" In re Adoption of Hemmer, 260 Neb. 827, 830, 619 N.W.2d 848, 851 (2000) (quoting In re Petition of Ritchie, supra). Although the numerous amendments to the adoption statutes could have been crafted with greater precision, the adoption statutes as a whole are cogent and workable. Accordingly, in the instant case, the plain terms and manner of procedure of the Nebraska adoption statutes must be followed.

APPLICATION OF STATUTES TO THIS CASE

For an adoption to be valid under Nebraska's adoption statutes, the record must show the following factors: (1) the existence of an adult person or persons entitled to adopt, (2) the existence of a child eligible for adoption, (3) compliance with statutory procedures providing for adoption, and (4) evidence that the proposed adoption is in the child's best interests. Neb.Rev.Stat. § 43-101 et seq. See In re Adoption of Kassandra B. & Nicholas B., supra. The absence of any one of the necessary factors will preclude the adoption. In this case, Luke was not eligible for adoption, the county court determined that his adoption by A.E. was precluded on this basis, and we affirm on this basis.

The county court stated that "the statu[t]es permit a single adult person to adopt a child after all necessary consents and relinquishments have been filed." On this record, B.P. did not relinquish her parental rights to Luke, and therefore, he was not eligible for adoption by A.E. The county court's denial of the petition due to an absence of a relinquishment was correct. The county court also stated that Nebraska's adoption statutes do not provide for "two non-married persons to adopt a minor child, no matter how qualified they are." Because A.E. alone sought to adopt Luke, the issue of whether two nonmarried persons are entitled to adopt was not presented to the county court in this case. Thus, that issue is not before this court on appeal, and we do not consider it.

Appellants argue that the county court erred in concluding that it could not grant the adoption of Luke by A.E. as an additional parent without a relinquishment of the parental rights of B.P. Appellants contend that "consent is an alternative to a relinquishment," brief for appellant at 12, and that where B.P. intended to preserve her parental rights upon the adoption of Luke by A.E., only B.P.'s consent, which was given, was required. Appellants refer the court...