Saturday, December 23, 2006
Nebraska Supreme Court allows father whom a court had earlier determined him to be the child's father to dispute exgirlfriend's adoption, cant decide whether its a case of statutory interpretation or constitutional lawIn re Adoption of Jaden M., 272 Neb. 789 Filed December 22, 2006. Earlier a court found the defedant to be the child's father and ordered support, which the defendant mostly paid. The mother/exgirlfriend then married and her new husband sought to adopt the child. MOther contended that since the father failed to register with father's registry and he appeared to not meet any other standard in 43-104.22 that require father's consent. Nebraska Supreme Court finds for the father's rights, finding that an adjudicated father is neither a claimed father(§ 43-104.02) or a "claimant-father" (§ 43-104.05.)But then even if Nebraska statute 43-104.22 somehow did exclude the defendant, it is unconstitutional to exclude an adjudicated father from those entitled to consent before adoption. We, however, conclude that § 43-104.22(7) does not apply to a father who has been adjudicated the child's father in a paternity action. Applying § 43-104.22(7) infringes upon Brian's constitutionally 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. In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272 (1987). His rights must therefore be determined under the considerations delineated in § 43-104.22, apart from subsection (7). As in White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987), Tracey and Ronald's argument fails because Brian is not "a person claiming to be the father of the child" under § 43-104.02 or a "claimant-father" under § 43-104.05--he is Jaden's biological father. The court erred in applying the registry statutes to circumvent the need for Brian's consent.