Jeremiah J. v. Dakota D.
| Decision Date | 08 February 2013 |
| Docket Number | No. S–12–517.,S–12–517. |
| Citation | 826 N.W.2d 242,285 Neb. 211 |
| Parties | JEREMIAH J., appellant, v. DAKOTA D., appellee. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[285 Neb. 211]1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.
4. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.
5. Summary Judgment: Evidence: Proof. After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.
6. Summary Judgment. If a genuine issue of fact exists, summary judgment may not properly be entered.
7. Paternity: Adoption. A biological mother may not deliberately misrepresent or withhold information as to the date of a child's birth in order to prevent the biological father from timely objecting to the adoption of the child.
Mark Porto, of Shamberg, Wolf, McDermott & Depue, Grand Island, for appellant.
Rachel A. Daugherty, of Myers & Daugherty, P.C., L.L.O., for appellee.
Jeremiah J. appeals from the county court's determination that Jeremiah did not comply with the statutory requirement that to contest the adoption of his minor child, he had to file an objection within 5 business days of the child's birth. The court sustained Dakota D.'s motion for summary judgment and dismissed Jeremiah's “Amended Petition to Establish Necessity of Father's Consent to Adoption,” concluding there were no genuine issues as to the facts in this case. We reverse the judgment and remand the cause for further proceedings.
An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777, 826 N.W.2d 225, 2012 WL 6097326 (2012). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. Id.
Statutory interpretation presents a question of law, which we review independently of the lower court's determination. In re Interest of Erick M., 284 Neb. 340, 820 N.W.2d 639 (2012).
Jeremiah and Dakota began dating in 2008 and stopped seeing each other in 2011. In the middle of June 2011, shortly after she became aware of her pregnancy, Dakota told Jeremiah she was pregnant. Following an argument, Dakota told Jeremiah he was not the father and that she did not want Jeremiah to have anything to do with the pregnancy.
In October 2011, Dakota told an adoption agency that Jeremiah was the biological father of her expected child. Danessa Kenney, a caseworker with the agency, called Jeremiah sometime in November to inform him he had been identified by Dakota as a possible biological father for the unborn child. She told Jeremiah that Dakota wanted to place the child up for adoption.
Jeremiah visited with Kenney in person on November 30, 2011, and was given a letter describing his legal rights and responsibilities. The letter stated that the expected due date for the unborn child was February 18, 2012. The letter stated in part that if he wanted to file a notice of objection, he had to do so “within 5 business days after the birth of the child.” At that time, Jeremiah expressed to Kenney that he did not want the child put up for adoption.
After his meeting with Kenney, Jeremiah attempted to contact Dakota by telephone. He was unable to reach her, but he left her a voicemail message. Dakota did not return his telephone call. He again attempted to contact Dakota on December 14, 2011. Again, Dakota did not answer and did not return his telephone call.
The child was born on February 9, 2012, but Jeremiah was not told about the birth. Jeremiah attempted to contact Dakota two times on February 13. She did not answer either of those telephone calls. However, he did manage to speak with her that day. During their brief conversation, Dakota did not tell him that the child had already been born. At the summary judgment hearing, she testified that she did not tell him the child had been born because she did not want him to know about the birth during the time period he had to object to the adoption. Her testimony was, in part, as follows:
Q[.] Did you communicate directly with him [Jeremiah] on February 13th?
A[.] Yes, I did.
Q[.] Did you tell him that the baby had been born?
A[.] No, I did not.
....
Q[.] Isn't it true that you did not want him to know about the birth?
A[.] Within the five to 10 business days, no, I did not.
Q[.] Let me break this down. Within the five business days that he had to object to the [adoption], is that what you are referring to?
A[.] Yes, I am.
Q[.] You did not want him to know of the birth during that period of time[?]
A[.] That is correct.
After their telephone conversation on February 13, Dakota blocked Jeremiah's telephone number.
Jeremiah called and spoke with Kenney on February 13, 2012, and asked how Dakota's pregnancy was going. Kenney responded that she could not legally communicate with Jeremiah about the birth of the child. He asked Kenney what he needed to do to exercise his rights as a father. Kenney told Jeremiah to read the letter she had given him in November and the letter would explain to him what he needed to do. She directed Jeremiah to the Web site for the Bureau of Vital Statistics that would provide him access to the paperwork necessary to file an objection to the adoption. As of February 13, Jeremiah did not know that the child had already been born.
Jeremiah contacted a local hospital on February 15, 2012, in an attempt to discover if Dakota had been admitted to the hospital in anticipation of the child's birth. He was told she was not a patient at the hospital. He called the hospital again on February 17, attempting to discover if Dakota was a patient. He was again told she was not. On February 17, he again contacted Kenney who did not provide him with any information. Kenney testified that Jeremiah was angry during that telephone call because he could not get in contact with Dakota and Kenney would not give him any information about his child.
On February 17, 2012, Jeremiah attempted twice to contact Dakota, but was unable to reach her. As of February 17, the day before the child's original due date, Jeremiah was unable to acquire any knowledge that the child had been born and he sought legal help to file an objection. Jeremiah was never told, prior to the birth of the child, that he could file an objection to the adoption before the child was born, and he testified that he did not know it was an option.
On February 20, 2012, Jeremiah signed a “Notice of Objection to Adoption and Intent to Obtain Custody” with the Nebraska Department of Health and Human Services. On the form, Jeremiah noted that the child was due to be born on February 18, but that as of the date the form was signed, it was unknown to him if the child had been born. The notice was filed on February 21, the first business day after the February 18 expected due date. Sometime after he had filed his objection, Jeremiah was told by one of Dakota's coworkers that the child had been born and that it was a girl. He was told the incorrect birth date, and the child's name was incorrect.
On February 23, 2012, Jeremiah filed a “Petition to Establish Necessity of Father's Consent to Adoption” in the county court for Hall County, requesting the court to determine whether Jeremiah's consent was needed for the proposed adoption of the minor child. Dakota moved for summary judgment. At the hearing on Dakota's motion, the court determined that the notice given to Jeremiah on November 30, 2011, complied with the applicable statute because it advised Jeremiah to seek legal counsel immediately. It found that Jeremiah was aware of the pregnancy and that the due date was simply an estimate of when the child would be born and was not a guarantee of the birth date. It sustained Dakota's motion for summary judgment because Jeremiah failed to object to the adoption within 5 business days after the birth of the child, as required by law.
Jeremiah assigns as error, restated, that (1) summary judgment was improper because a genuine issue of material fact remains and (2) the county court erred in granting Dakota's motion for summary judgment because the 5–day filing requirement in Neb.Rev.Stat. § 43–104.02 (Reissue 2008) was unconstitutional as applied to him.
The party moving for summary judgment has the burden to show that no...
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