Adoption in Nebraska

• Publication year: 2021
• Citation: Vol. 76

76 Nebraska L. Rev. 856. Adoption in Nebraska

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Susan Kubert Sapp*

Easing the Delivery of Adoption Reform in Nebraska: L.B. 712

TABLE OF CONTENTS

I. Introduction 856
II. History 857
A. Review of United States Supreme Court Cases 858
B. Review of Nebraska Supreme Court Cases 859
III. L.B. 712 861
A. What L.B. 712 Did 861
B. What L.B. 712 Did Not Do 864
IV. Notable Decisions Since Enactment of L.B. 712 865
V. Conclusion 867

I. INTRODUCTION

In the Spring of 1995, the Nebraska Legislature passed a statutory procedure to protect the validity of adoptions in Nebraska. This procedure broke new ground in balancing the interests and rights of putative fathers with the predominate concern for legal stability in all adoptive placements. The former version of Nebraska's law required an unwed father to claim paternity within five days of the birth of his child.(fn1) Unfortunately, the law gave little protection to a father who did not know of his child's birth or the biological mother's adoption plan. As a result, the Nebraska Supreme Court warned in dicta that the five-day filing provision could be "constitutionally suspect" for failing to provide at least some degree of notice to a father that his poten

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tial parental rights could end with an adoptive placement of the child by the biological mother.(fn2)

After Shoecraft v. Catholic Social Services Bureau, Inc., adoptive parents, birth mothers, and their children began placing less trust in the legal finality of adoptions when the birth father was unaware of the child's birth or the mother's plan to place the child for adoption. Practitioners who dealt with adoption cases began formulating their own makeshift procedures to notify birth fathers, but there was no consistency among these practices. No one could be sure how much notice-or even what kind of notice-was sufficient to pass constitutional scrutiny.

One year after Shoecraft, the court held the five-day filing statute unconstitutional in In re S.R.S.(fn3) In that case, an adopted child in Ne-braska had his placement disrupted after he had lived with his adoptive family for four years.(fn4) The court found the five-day filing provision of section 43-104 unconstitutional because it failed to address the issue of notice and overall failed to provide a suitable procedural framework to handle adoptions involving older children.(fn5)Responding to the court's decision, the Nebraska Legislature moved to change the statutory rights of unwed fathers in the context of adoptions involving both infants and older children.

This Article will examine the history of unwed fathers' rights in adoption as set forth by the United States Supreme Court and the Ne-braska Supreme Court. This Article also will identify and discuss the changes L.B. 712 made in Nebraska law and how those changes improved the validity of Nebraska adoptions. Finally, this Article will analyze United States Supreme Court and Nebraska Supreme Court decisions reached after L.B. 712 went into effect in September 1995. Ultimately, this Article concludes that L.B. 712 and its related provisions can withstand both a due process and equal protection challenge under the reasoning and analysis employed by the courts at this time.

II. HISTORY

A. Review of United States Supreme Court Cases

The United States Supreme Court has recognized that unwed fathers have certain, albeit limited, potential parental rights when their minor children are placed for adoption.(fn6) For example, in Stanley v.

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Illinois,(fn7) the unwed father had lived with his three children and their mother sporadically for eighteen years, but failed to claim paternity under the procedures set forth under Illinois law. When the mother died, the state appointed guardians for the children.

The Stanley Court refused to deny the father's parental rights in the first instance and instead ordered the lower court to determine the father's parental fitness, ruling that putative fathers have a right to a hearing on their custodial claims.(fn8) According to Stanley, an unwed father possesses certain constitutional protections in relation to the custody of his children.(fn9) The Court further held that an unwed father deserved notice and a hearing in regard to an adoption and custody proceeding involving his children.(fn10) The Court's ruling, while affording some protections to unwed fathers, neither specifically stated those protections nor outlined a procedure to test a father's parental fitness. After Stanley, it appeared only that an unwed father deserved some kind of notice and some kind of hearing on his parental fitness.

Six years later, in Quilloin v. Walcott,(fn11) the Supreme Court again considered unwed fathers' rights, this time emphasizing the difference between an uninvolved biological father and a nurturing, supportive father. In Quilloin, the mother and father had never married or lived together. Instead, the mother married another man when the child was two years old. The child's father visited infrequently and rarely provided any financial or emotional support. The mother consented to the child's adoption by her husband when the child was eleven years old. The biological father objected when he learned of the pending adoption.

The issue decided in Quilloin was whether, as the biological father claimed, an unwed father had the same absolute veto power regarding the adoption of his child as a married or divorced father possessed. Because he had not nurtured or supported the child, Quilloin ruled that "in the best interests of the child," the father could not veto the adoption.(fn12) According to Quilloin, the rights of an unwed father were "readily distinguishable from those of a separated or divorced father."(fn13)A few years after Quilloin, the Supreme Court reaffirmed its prior approach when it again ruled in Caban v. Mohammed that once a father establishes a relationship with his children and takes an active role in supporting them, a state cannot summarily deny the father's

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power to veto an adoption.(fn14) In Caban, the father had lived with his children and their mother for two years before the father and mother separated. Caban emphasized this support and relationship in deciding that the New York statute could not deny the father an opportunity to object to the adoption of his children by another man.(fn15)

By 1983, when the Court heard Lehr v. Robinson,(fn16) it found a factual scenario involving unwed parents that differed from the cases the Supreme Court had heard previously. Unlike Quilloin and Caban, the father in Lehr had no opportunity to establish any kind of relationship with his child or to provide any financial support. While the father and mother lived together for a time prior to her pregnancy, the mother concealed the birth of their child for two years. When the father finally found out about his child, the mother refused his attempts to provide support. The mother's husband attempted to adopt the child at about the same time the biological father asked for a determination of paternity. Later claiming he had not been aware of the pending adoption at the time he questioned paternity, the biological father protested the adoption. After the county court granted the adoption, the biological father appealed.

Lehr ruled that the "mere existence of a biological link does not merit equivalent constitutional protection" to an unwed father as to a married, separated, or divorced father.(fn17) The Court noted that the father had failed to establish significant personal or custodial relationships with the child.(fn18) Consequently, the Court considered only whether the state statute protected the father's opportunity to form such relationships.(fn19) In the Court's view, the state statute provided for such opportunity.(fn20) The Court held, however, that if the statutory scheme "was likely to omit many responsible fathers and, if qualifications for notice were beyond the control of an interested putative father, it might be procedurally inadequate."(fn21)

Through Stanley, Quilloin, Caban, and Lehr, the United States Supreme Court partially clarified unwed fathers' rights in relation to the adoption of their toddler-aged and older children. Uncertainly still lies, however, in adoption scenarios in which the child is an infant at the time of the adoptive placement. An unwed father has little or no opportunity to establish the type of relationship that justifies giving the father a voice in the adoption of his child. This "gap" in the legal parameters surrounding adoption creates difficulty for attorneys,

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agencies, and biological and adoptive families because there are few clear standards governing adoptions involving newborns and infants, and these form the majority of adoptive placements each year.

B. Review of Nebraska Supreme Court Cases

In the mid-1970s...