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06/19/2018 08:13 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     26 Nebraska A ppellate R eports
                                                     HELM v. HELM
                                                 Cite as 26 Neb. App. 30




                                        H arold Lucas Helm, appellant, v.
                                          Ashley Dawn Helm, appellee.
                                                     ___ N.W.2d ___

                                           Filed June 19, 2018.    No. A-17-737.

                1.	 Adoption: Appeal and Error. In an appeal from a denial of consent to
                     adoption, the appellate court’s review of a trial court’s judgment is de
                     novo on the record to determine whether there has been an abuse of dis-
                     cretion by the trial judge, whose judgment will be upheld in the absence
                     of an abuse of discretion, subject to the best interests of the children.
                2.	 Adoption: Statutes. The matter of adoption is statutory, and the man-
                     ner of procedure and terms are all specifically prescribed and must
                     be followed.
                3.	 Adoption: Parent and Child: Parental Rights. Consent of a biological
                     parent to the termination of his or her parental rights is the foundation of
                     our adoption statutes, and an adoption without such consent must come
                     clearly within the exceptions contained in the statutes.
                4.	 Divorce: Courts: Adoption. Consent from a district court that has
                     issued a dissolution decree concerning minor children is a prerequisite
                     for adoption of those children.
                5.	 Courts: Jurisdiction: Adoption. The consent for adoption given by a
                     district court is not a determination of the child’s best interests or any
                     other issue pertaining to adoption; such determination rests solely in the
                     county court’s exclusive jurisdiction.
                 6.	 ____: ____: ____. The consent provision of Neb. Rev. Stat. § 43-104(1)(b)
                     (Reissue 2016) contemplates that another court has jurisdictional prior-
                     ity over the custody of the child and that only with the other court’s
                     consent will the adoption be allowed to proceed.
                7.	 Courts: Adoption: Parental Rights. Neb. Rev. Stat. § 43-104 (Reissue
                     2016) gives the district court two opportunities to influence an adoption
                     proceeding. It may have already made determinations in past proceed-
                     ings which are decisive on the issue of adoption or the fitness of a
                     parent. Or, it may be in a position to make a significant contribution
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           Nebraska Court of A ppeals A dvance Sheets
                26 Nebraska A ppellate R eports
                              HELM v. HELM
                          Cite as 26 Neb. App. 30

     to the county court’s determination based on its prior experience with
     the parties.
 8.	 Courts: Adoption: Legislature. The Legislature has granted the dis-
     trict court the discretion to grant or deny a request for its consent
     for adoption.

  Appeal from the District Court for Sarpy County: Stefanie
A. M artinez, Judge. Reversed and remanded with directions.

   Kelly N. Tollefsen, of Kelly Tollefsen Law Offices, P.C.,
for appellant.

   Robin L. Binning, of Binning & Plambeck, for appellee.

   R iedmann, Bishop, and Welch, Judges.

   R iedmann, Judge.
   Harold Lucas Helm appeals from the order of the district
court for Sarpy County that denied his motion seeking the
district court’s consent to a stepparent adoption. As explained
more fully below, we find that the district court abused
its discretion in denying Harold’s motion on the basis that
abandonment was the only issue before the court. We there-
fore reverse the district court’s order and remand the cause
with directions.

                FACTUAL BACKGROUND
   Harold and Ashley Dawn Helm were married in 2007 and
had two children, born in 2007 and 2011. The parties were
divorced in February 2015, at which time Harold was granted
sole legal and physical custody of the children, subject to
Ashley’s supervised visitation.
   On April 18, 2017, Harold filed a “Motion for District
Court’s Consent to Adoption & Determination of Mother’s
Consent.” Harold alleged that he had married Lindsay Helm
in October 2015, that Lindsay was a fit and proper person to
adopt the minor children, and that he had given his consent
to the proposed adoption. Harold further alleged that Ashley
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         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                           HELM v. HELM
                       Cite as 26 Neb. App. 30

had abandoned the children and that her last contact with them
was in April 2015. Harold moved the court to grant its consent
to Lindsay’s adoption of the children, and he prayed that the
court determine that Ashley had abandoned them.
   The district court initially granted its consent for the adop-
tion in an order filed May 4, 2017. It also found that Ashley
had abandoned the children and that, therefore, her consent
was not required. However, that order was vacated on May 17,
because of “insufficient service” on Ashley. At a June 21 hear-
ing, Ashley testified as to her unsuccessful attempts to keep in
contact with the children and to her belief that most of those
attempts were deliberately thwarted by Harold. Nonetheless,
both parties acknowledged that the issue of abandonment was
not within the scope of the district court’s inquiry when consid-
ering a request for consent to adoption.
   On July 6, 2017, the district court denied Harold’s motion.
The court cited extensively from relevant statutes and case
law involving its authority to consider abandonment issues
in a consent to adoption proceeding. The court found that it
lacked the authority to consider the issue of abandonment, and
it further found that abandonment was the sole issue raised
in Harold’s motion. The court thus concluded that Harold’s
motion for consent to adoption must be denied. Harold timely
appealed from this order.
                 ASSIGNMENTS OF ERROR
    Harold asserts, summarized and restated, that the district
court erred in finding that abandonment was the only issue
raised in his “Motion for District Court’s Consent to Adoption
& Determination of Mother’s Consent” and in concluding that
it lacked authority to hear his motion.
                   STANDARD OF REVIEW
   [1] In an appeal from a denial of consent to adoption, the
appellate court’s review of a trial court’s judgment is de novo
on the record to determine whether there has been an abuse of
discretion by the trial judge, whose judgment will be upheld in
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          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                           HELM v. HELM
                       Cite as 26 Neb. App. 30

the absence of an abuse of discretion, subject to the best inter-
ests of the children. Smith v. Smith, 242 Neb. 812, 497 N.W.2d
44 (1993).

                           ANALYSIS
   [2,3] 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 Madysen S. et al., 293 Neb.
646, 879 N.W.2d 34 (2016). Consent of a biological parent to
the termination of his or her parental rights is the foundation
of our adoption statutes, and an adoption without such consent
must come clearly within the exceptions contained in the stat-
utes. Id.
   [4,5] As applicable to this case, Neb. Rev. Stat. § 43-104
(Reissue 2016) provides:
         (1) . . . [N]o adoption shall be decreed unless writ-
      ten consents thereto are filed in the county court of the
      county in which the person or persons desiring to adopt
      reside . . . and the written consents are executed by . . .
      (b) any district court . . . in the State of Nebraska having
      jurisdiction of the custody of a minor child by virtue of
      proceedings had in any district court . . . .
This includes district courts that have issued a dissolution
decree concerning the minor children. In re Adoption of
Madysen S. et al., supra. The consent granted by the district
court does nothing more than permit the county court, as the
tribunal having exclusive original jurisdiction over adoption
matters, to entertain such proceedings. Jennifer T. v. Lindsay
P., 298 Neb. 800, 906 N.W.2d 49 (2018). Such consent is
not a determination of the child’s best interests or any other
issue pertaining to adoption. Id. Because county courts have
exclusive jurisdiction over adoption, a nonadoption court lacks
authority to decide such matters. Id.
   [6] The Nebraska Supreme Court has reasoned the consent
provision of § 43-104(1)(b) contemplates that another court
has jurisdictional priority over the custody of the child and
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         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                           HELM v. HELM
                       Cite as 26 Neb. App. 30

that only with the other court’s consent will the adoption be
allowed to proceed. Jennifer T. v. Lindsay P., supra. The court
stated that the consent required under that statute can be under-
stood as a limited deferral to the adoption court of the first
court’s jurisdictional priority. Id. In the same vein, the court
has noted that the adoption statutes, including Neb. Rev. Stat.
§§ 43-102 and 43-103 (Reissue 2016) and § 43-104, require
that such consents be filed before a county court holds hearings
and entertains the merits of any issue in the adoption proceed-
ing. In re Adoption of Chase T., 295 Neb. 390, 888 N.W.2d
507 (2016). The court observed that requiring necessary court
consents to be filed before entertaining the merits of an issue
in the adoption proceeding serves to promote judicial effi-
ciency and prevent an adoption court from issuing inconsistent
or premature rulings on matters affecting the best interests of
the child. Id.
   In addition to requiring consent from a court having juris-
diction over a child, § 43-104(1)(c) also requires that prior to
adoption, consent from both parents of a child born in lawful
wedlock if living be given, but § 43-104(2) excepts from this
requirement any parent who has abandoned the child for at
least 6 months prior to the filing of the adoption petition.
   Given this background regarding the purpose and limita-
tions of the district court’s authority to grant or deny con-
sents, and the effect of abandonment on the need for paren-
tal consent, we turn to a discussion of the factors that may
be considered by a district court in granting or denying its
consent under § 43-104. Smith v. Smith, 242 Neb. 812, 497
N.W.2d 44 (1993), is the pivotal case with regard to these
factors. The parties in Smith had been divorced in the district
court, and subsequently, the mother, who had custody of the
children, moved the district court for its consent for her new
husband to adopt the children. The district court denied the
mother’s motion, determining that voluntary abandonment had
not occurred and that it was not in the children’s best interests
to permit the adoption. Id.
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          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
                            HELM v. HELM
                        Cite as 26 Neb. App. 30

   On appeal, the Smith court stated that consideration of the
issue of abandonment constituted plain error, noting that the
question of abandonment is to be addressed exclusively by the
county court. The court explained: “‘The consent of the dis-
trict court means only that the [opposing parent] must defend
against the adoption sought in the county court.’” Id. at 817,
497 N.W.2d at 49, quoting Klein v. Klein, 230 Neb. 385, 431
N.W.2d 646 (1988). The Smith court further noted that if a
county court grants an adoption, an opposing parent is free to
appeal that decision.
   [7] The Smith court observed that the factors to be consid-
ered by the district court in granting or denying its consent
under § 43-104 are not enumerated in the statute itself or in
the legislative history, but it rejected the appellant’s contention
that § 43-104 is only a “bookkeeping device” intended to keep
the district court informed of the status of parties over which it
had jurisdiction. Smith v. Smith, 242 Neb. at 818, 497 N.W.2d
at 49. Rather, the court held:
      [T]he statute gives the district court two opportunities to
      influence an adoption proceeding. First, the district court
      may have already made determinations within the dissolu-
      tion proceedings which are decisive on the issue of adop-
      tion or the fitness of a parent. If such is the case, it would
      be unnecessary for the county court to rehear these issues
      and the district court may deny consent based upon such
      findings. It should be understood, however, that a deter-
      mination of custody is not, on its face, determinative as to
      later petitions for adoption made by either the custodial or
      non-custodial parent. . . .
         Second, the district court may be in the position to
      make a significant contribution to the determination of
      the county court based on its experience from the par-
      ties’ dissolution proceedings. In addition to considering
      jurisdictional factors and prior determinations in decid-
      ing whether to grant consent to an adoption proceeding,
      the district court may, at its volition, make a written
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         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                           HELM v. HELM
                       Cite as 26 Neb. App. 30

      recommendation to the county court concerning the reso-
      lution of the proceedings in the context of knowledge
      obtained through the dissolution proceedings. This rec-
      ommendation should be accompanied by, whenever pos-
      sible, a reference to the record of the dissolution action.
      Such a recommendation would only be necessary when
      the district court has granted consent to the adoption
      proceedings.
Smith v. Smith, 242 Neb. 812, 818-19, 497 N.W.2d 44, 49
(1993) (citations omitted).
   In the instant case, Harold asked the district court to grant
its consent for his present wife, Lindsay, to adopt his minor
children, and he also sought a determination that Ashley had
abandoned the children. Among other allegations, his motion
stated that Lindsay was a fit and proper person to adopt the
children and to assume parental responsibilities for them. We
disagree with the district court’s assertion that abandonment
was the sole issue raised in Harold’s motion. Although Harold
indeed asserted that Ashley had abandoned the children, the
essence of the motion was Harold’s request that the court grant
its consent for a stepparent adoption.
   At the hearing, the parties and the court all recognized the
district court’s inability to adjudicate issues of abandonment.
Harold’s counsel stated, “[T]he only consent that the District
Court is giving is whether or not we can have the fight in
County Court on abandonment.” Ashley’s counsel contended
that the district court was uniquely positioned, having heard
the dissolution case, to determine whether Harold had vio-
lated provisions of the decree pertaining to Ashley’s access to
the children.
   During the hearing, the district court noted that a different
judge had presided over the parties’ dissolution proceedings
and stated that, with regard to those proceedings, “I don’t have
any information firsthand, nor do I see any information within
the court file [of determinations made during the dissolution
proceedings that may be decisive on the issue of adoption or
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         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                           HELM v. HELM
                       Cite as 26 Neb. App. 30

fitness of a parent].” The court noted that it was clear it could
not address the issue of abandonment in the present hearing,
but took the motion under advisement.
   In its order denying consent, the district court stated it was
without the authority to decide the issue of abandonment and
concluded that “[a]bandonment is the only allegation made
by [Harold] in his motion, and thus, based upon the evidence
adduced at trial, this Court finds that [Harold] failed to meet
his burden in this matter.” We disagree.
   [8] The Legislature has granted the district court the discre-
tion to grant or deny a request for its consent for adoption.
Smith v. Smith, supra, provides the factors a district court is
to consider in evaluating requests for consent for adoption.
Because the district court failed to consider those factors, it
abused its discretion in denying the motion for consent. We
therefore reverse the district court’s order and remand the
cause for a determination by the district court based upon the
factors set forth in Smith v. Smith, supra.
                          CONCLUSION
   Although the district court was correct in concluding it
lacked jurisdiction to address the issue of abandonment, it
abused its discretion in failing to consider the factors set
forth in Smith v. Smith, 242 Neb. 812, 497 N.W.2d 44 (1993),
in determining Harold’s motion for consent to adoption. We
therefore reverse the district court’s order and remand the
cause to the district court with directions to determine whether
or not to grant consent to adoption based upon the Smith v.
Smith factors.
                      R eversed and remanded with directions.
