Nicole K. v. Jeremy S. (In re Madysen S.)

293 Neb. 646

879 N.W.2d 34

In re Adoption of Madysen S. et al., minor chiIdren

Nicole K. and William K., appellees,

v.Jeremy S., appellant.

No. S–15–032.

Supreme Court of Nebraska.

Filed May 27, 2016.

Todd M. Jeffers, of Brouillette, Dugan & Troshynski, P.C., L.L.O., for appellant.

Angela M. Franz and Patrick M. Heng, of Waite, McWha & Heng, North Platte, for appellees.

Heavican, C.J., Wright, Connolly, Miller–Lerman, Cassel, Stacy, and Kelch, JJ.

Wright, J.

NATURE OF CASE

This is an appeal from an interlocutory order of the county court in a stepparent adoption proceedings finding that the natural father abandoned his children and therefore his consent to the adoption would not be required. We find that the order appealed from is not a final order, and the Nebraska Court of Appeals and this court lack jurisdiction over the appeal.

BACKGROUND

Nicole K. and Jeremy S. were married, and three children were born of the marriage. Madysen S. was born in February 2001, Orion S. was born in January 2004, and Leo S. was born in November 2005. The family lived in Missouri.

In 2007, Madysen, who was then 6 years old, reported that Jeremy had been sexually abusing her for more than a year. Jeremy was arrested and charged with first degree statutory sodomy—deviate sexual intercourse with a person less than 14 years old and four counts of first degree child molestation.

Nicole moved with the children to Nebraska and filed for divorce. The decree of dissolution was entered in July 2007.

The decree granted sole custody of the children to Nicole and stated that Jeremy “shall not have any parenting time.” The court ordered Jeremy to pay $50 per month in child support.

In August 2009, pursuant to a plea agreement, Jeremy was convicted of three counts of child molestation. He was committed to a total term of 16 years' confinement in Missouri.

Nicole married William K. in 2013. In 2014, Nicole and William simultaneously filed in the county court for Lincoln County, the county where the children reside, a petition for adoption by a stepparent and a “Petition to Terminate Parental Rights” for each child. The petitions asked that the court approve the adoption of the children by William. Jeremy opposed the adoptions. He refused to voluntarily relinquish his parental rights and consent to the adoptions. The petitions asked the court to find that Jeremy had abandoned the children, as provided under Neb.Rev.Stat. § 43–104 (Reissue 2008), such that Jeremy's consent to the adoptions would not be required.

A hearing was held on the consolidated “Petition[s] to Terminate Parental Rights.” Nicole testified that she allowed the children to visit their extended family on Jeremy's side, but asked Jeremy's family not to allow any contact between the children and Jeremy. Jeremy indicated that he had not seen the children since he was arrested, approximately 7 years prior to the filing of the petitions. While incarcerated, he sent the children cards and letters. He also occasionally listened over the telephone to the children talk to his family members when they visited them. Jeremy consistently paid the $50 per month in child support ordered in the dissolution decree. The child support was paid by Jeremy's mother.

The county court issued an order on the consolidated “Petition[s] to Terminate Parental Rights.” However, the court acknowledged that in adoption proceedings, it is the adoption itself which terminates the parental rights, and that until the adoption is granted, the parental rights are not terminated.¹ And a “Petition to Terminate Parental Rights,” as such, is not a pleading provided for in the adoption statutes.

The county court's order found that Jeremy had abandoned his children for purposes of § 43–104. Accordingly, the court ordered that Jeremy's consent would not be required for the adoptions and that the guardian ad litem could provide all substitute consents as may be required by statute. The hearing on the adoptions was scheduled and is still pending.

In finding that Jeremy abandoned his children, the court stated that Jeremy was “unavailable to parent his children.” The court noted that this unavailability was due to incarceration stemming from “his depraved choice to sexually molest his own daughter multiple times over the course of several months.” The court also reasoned that Jeremy abandoned his children by virtue of the “negligible and supervised contact” with his children for the past 7 years. Jeremy had not acted as a “significant parental figure” for his children for most of their lives.

Jeremy appealed from the order finding that he abandoned his children and that his consent to the stepparent adoptions was not required. The Court of Appeals reversed.² The Court of Appeals explained that the only issue was whether Jeremy abandoned the children; i.e., whether he had acted in a manner evidencing a settled purpose to be rid of all parental obligations and to forgo all parental rights.

The Court of Appeals concluded that the record did not support a finding upon clear and convincing evidence that Jeremy had abandoned his children. It noted that although Jeremy was incarcerated, he had continually paid his child support obligation, had sent letters and cards to the children, and had adamantly refused to relinquish his parental rights.

We granted Nicole and William's petition for further review.

ASSIGNMENT OF ERROR

Nicole and William assign on further review that the Court of Appeals erred in determining that there was insufficient evidence to support the county court's finding of abandonment.

STANDARD OF REVIEW

A jurisdictional issue that does not involve a factual dispute presents a question of law.³

ANALYSIS

Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.⁴ For an appellate court to acquire jurisdiction over an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken.⁵

A judgment is the final determination of the rights of the parties in an action.⁶ We have said that a final judgment is one that disposes of the case either by dismissing it before hearing is had upon the merits, or after trial by rendition of judgment for the plaintiff or defendant.⁷ Conversely, every direction of a court or judge, made or entered in writing and not included in a judgment, is an order.⁸

The final judgment in proceedings under an adoption petition is an order granting or denying adoption. Such a final judgment is yet to be rendered in this case. Therefore, we must determine whether the order of the county court finding that Jeremy had abandoned his children and that his consent will not be required for the adoptions under consideration is a final order.

In general, this court prohibits immediate appeals from interlocutory orders so as to avoid piecemeal appeals arising out of the same set of operative facts, chaos in trial procedure, and a succession of appeals in the same case to secure advisory opinion to govern further actions of the trial court.⁹ There are only limited exceptions to the general rule that interlocutory orders are not immediately appealable.¹⁰ Because adoption proceedings are special proceedings,¹¹ the question presented is whether the order falls under the exception that it was “an order affecting a substantial right made in a special proceeding” under Neb.Rev.Stat. § 25–1902 (Reissue 2008).

A substantial right is an essential legal right, not a mere technical right.¹² It is a right of “substance.” But it is not enough that the right itself be substantial; the effect of the order on that right must also be substantial.¹³ We have said that an order “affects” a substantial right if it “ ‘affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is appealing.’ ”¹⁴ We have also said that “[w]hether the effect of an order is substantial depends upon ‘whether it affects with finality the rights of the parties in the subject matter.’ ”¹⁵

Having a substantial effect on a substantial right depends most fundamentally on whether the right could otherwise effectively be vindicated through an appeal from the final judgment.¹⁶ We have said that an order affects a substantial right when the right would be “ ‘significantly undermined’ ”¹⁷ or “ ‘irrevocably lost’ ”¹⁸ by postponing appellate review. The duration of the order is also relevant to whether there is substantial effect on the substantial right.¹⁹ Generally, an immediate appeal from an order is justified only if the right affected by the order would be significantly undermined or irrevocably lost by waiting to challenge the order in an appeal from the final judgment.

Having given the parties the opportunity to respond to jurisdictional issues raised sua sponte by this court, we conclude that the order appealed in this case concerned an important right, but there is no irreparable harm caused by postponing appeal of the order until the final judgment is entered in the adoption proceedings. We reach this conclusion based on our examination of the adoption procedures, which are set forth in chapter 43, article 1, of the Nebraska Revised Statutes.

The matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed.²⁰ 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.²¹ As relevant to a child born in lawful wedlock, § 43–104(2) provides that consent shall not be required of any parent who (a) has relinquished the child from adoption by written instrument, (b) has abandoned the child for at least 6 months next preceding the filing of the adoption petition, (c) has been deprived of his or her parental...