In re Adoption of David C.

CONCLUSION
Because Choctaw was not served with summons and a copy
of the complaint within 6 months from the date the complaint
was filed, this action was dismissed by operation of law before
any issue was submitted to the district court. The judgment
entered in favor of Davis was therefore null and void. We
therefore reverse, and remand with directions to the district
court to vacate its judgment and to enter an order that Davis’
complaint stands dismissed under § 25-217.
R eveRsed and Remanded with diRections
to vacate and dismiss.
in Re adoption of david c.
misty R. and JeRemy R., appellees ,
v. JeRad f., appellant.
790 N.W.2d 205
Filed October 29, 2010. 	No. S-09-1044.
1. Adoption: Appeal and Error. Appeals in adoption proceedings are reviewed by
an appellate court for error appearing on the record.
2. Jurisdiction: Appeal and Error. 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.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the tribunal from
which the appeal is taken.
4. Final Orders: Appeal and Error. The three types of final orders which may be
reviewed on appeal are (1) an order which affects a substantial right and which
determines the action and prevents a judgment, (2) an order affecting a substantial
right made during a special proceeding, and (3) an order affecting a substantial
right made on summary application in an action after judgment is rendered.
5. Words and Phrases. A substantial right is an essential legal right, not a mere
technical right.
6. Final Orders: Appeal and Error. A substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing a claim or defense
that was available to an appellant prior to the order from which an appeal
is taken.
7. Adoption: Abandonment: Proof. The issue of abandonment in an adoption pro-
ceeding must be established by clear and convincing evidence.
8. Abandonment: Intent. The question of abandonment is largely one of intent to
be determined in each case from all the facts and circumstances.
IN re ADOpTION OF DAvID C. 	719
Cite as 280 Neb. 719
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

Appeal from the County Court for Lincoln County: K ent d.
tuRnbull, Judge. Affirmed.
Daniel W. ryberg for appellant.
r. Bradley Dawson, of Lindemeier, Gillett, Dawson &
Troshynski, for appellees.
heavican, 	c.J., 	wRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmacK, and milleR-leRman, JJ.
wRight, J.
NATUre OF CASe
The putative father, Jerad F., appeals from the finding of the
Lincoln County Court that he abandoned David C. The court
determined that a petition for stepparent adoption could pro-
ceed without Jerad’s consent.
SCOpe OF revIeW
[1] Appeals in adoption proceedings are reviewed by an
appellate court for error appearing on the record. In re Adoption
of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).
FACTS
David was born in Omaha, Nebraska, on September 30,
2005, to Misty r. and Jerad, who have never been married to
each other. There is no dispute that Jerad is David’s biologi-
cal father. After David’s birth, Misty moved to North platte,
Nebraska, to be near her family. On March 7, 2008, Misty mar-
ried Jeremy r., who seeks to adopt David.
On June 26, 2009, Misty and Jeremy filed a petition for
stepparent 	adoption. 	The 	petition 	alleged 	that 	Misty 	and
Jeremy were married and that Jeremy wanted to adopt David,
thereby “conferring upon [David] all of the rights and duties
as if [he] had been born to [Jeremy].” Misty identified Jerad
as David’s father in the “Affidavit of Identification” attached
to the petition.
The petition alleged that Jerad knew of David’s birth on
September 30, 2005, and had abandoned David for at least
6 months next preceding the filing of the petition, that Jerad
failed to provide reasonable financial support for the child and
720 	280 NeBrASkA repOrTS

did not establish any relationship with said child, and that Jerad
acted “in a manner evidencing a settled purpose to be rid of all
parental responsibilities and obligations” involving David. The
petition asked that Jeremy be allowed to adopt David and that
his last name be changed.
Jerad’s answer admitted that Misty was David’s natural
mother, that David was born to Misty and Jerad, and that
Misty had identified Jerad as the father in the “Affidavit of
Identification” attached to the petition. Jerad denied that he
abandoned David and claimed that his attempts to have a rela-
tionship with David were thwarted by Misty. He requested that
the petition for stepparent adoption be dismissed.
The county court found by clear and convincing evidence
that Jerad abandoned David and that Jerad’s consent was not
needed for the adoption. It concluded the evidence was undis-
puted that Jerad had no contact with David and had provided
no financial, emotional, or parental support from February
2006 until the filing of the petition on June 26, 2009. Jerad
voluntarily discontinued contact with Misty and David when
the child was no more than 6 months old.
The county court found no evidence of duress, fraud, or
subterfuge perpetrated by Misty against Jerad. It found by clear
and convincing evidence that Jerad had failed to demonstrate
any plan to fulfill his parental responsibilities and obligations
and that he had withheld his presence, care, love, concern,
protection, and maintenance of David without just cause or
excuse and failed to avail himself of any opportunity to display
parental affection.
The county court determined that Jerad was not a fit and
proper parent or suitable custodian for David because Jerad had
abandoned David; had no contact with David for more than 3
years; and had provided no financial, emotional, or parental
support even though he knew he had a son and the son’s loca-
tion. It concluded that the matter should proceed to adoption
without Jerad’s consent. We affirm.
ASSIGNMeNTS OF errOr
Jerad assigns the following errors: The county court (1)
lacked jurisdiction due to a failure to comply with prepetition
IN re ADOpTION OF DAvID C. 	721
Cite as 280 Neb. 719

notice requirements; (2) erred in deciding that the adoption
should proceed without the consent of the district court; (3)
erred in determining that Jerad had abandoned David; (4)
erred in bifurcating the proceedings and denying an eviden-
tiary hearing on the best interests of David, depriving Jerad of
his constitutional right to due process; and (5) erred in deter-
mining that it was in David’s best interests to proceed with
the adoption.
ANALYSIS
JuRisdiction
[2,3] The parties question whether this court has jurisdiction
because the order determining that Jerad had abandoned David
was not a final, appealable order. 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. Carmicheal v. Rollins, ante p. 59, 783 N.W.2d 763 (2010).
For an appellate court to acquire jurisdiction of an appeal, there
must be a final order entered by the tribunal from which the
appeal is taken. Id.
Neb. rev. Stat. § 43-112 (reissue 2008) provides that an
appeal may be taken from any final order, judgment, or decree
of the county court rendered under the adoption statutes to
the Nebraska Court of Appeals. In this case, no adoption
decree has been entered. rather, the county court found that
Jerad abandoned David, and Jerad has appealed from that
determination.
[4] The three types of final orders which may be reviewed
on appeal are (1) an order which affects a substantial right and
which determines the action and prevents a judgment, (2) an
order affecting a substantial right made during a special pro-
ceeding, and (3) an order affecting a substantial right made on
summary application in an action after judgment is rendered.
Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009).
Since the order in the case at bar did not determine the action
and prevent a judgment, nor was it made on summary applica-
tion in an action after judgment was rendered, we consider
whether the order was made during a special proceeding and
affected a substantial right.
722 	280 NeBrASkA repOrTS

This court has construed the term “special proceeding” to
include every special civil statutory remedy not encompassed
in the civil procedure statutes that is not in itself an action. Id.
“An action is any proceeding in a court by which a party pros-
ecutes another for enforcement, protection, or determination of
a right or the redress or prevention of a wrong involving and
requiring the pleadings, process, and procedure provided by
the statute and ending in a final judgment.” Id. at 128-29, 760
N.W.2d at 32. every other legal proceeding in which a remedy
is sought by original application to a court is a special proceed-
ing. Id.
The statutes regulating adoption in Nebraska are not con-
tained within the civil procedure statutes. Adoption proceed-
ings are governed by Neb. rev. Stat. § 43-101 et seq. (reissue
2008 & Supp. 2009). Thus, they are special proceedings. See,
e.g., In re Adoption of Krystal P. & Kile P., 248 Neb. 907, 540
N.W.2d 312 (1995).
[5,6] A substantial right is an essential legal right, not a
mere technical right. See Steven S., supra. A substantial right is
affected if the order affects the subject matter of the litigation,
such as diminishing a claim or defense that was available to
an appellant prior to the order from which an appeal is taken.
See id. “‘“[W]hether a substantial right of a parent has been
affected by an order in juvenile court litigation is dependent
upon both the object of the order and the length of time over
which the parent’s relationship with the juvenile may reason-
ably be expected to be disturbed.”’” Id. at 130, 760 N.W.2d at
34, quoting In re Interest of Borius H. et al., 251 Neb. 397, 558
N.W.2d 31 (1997), and In re Interest of R.G., 238 Neb. 405,
470 N.W.2d 780 (1991).
In the case at bar, the county court found that Jerad aban-
doned David and that Jerad was not a fit and proper parent due
to the abandonment. It concluded that Jerad’s consent to the
adoption was not required, and it ordered the matter to proceed
to adoption without Jerad’s consent.
This order affected a substantial right and was therefore final
and appealable. An order of abandonment disturbs the parent’s
relationship with the child forever because the parent no longer
has any right to be a part of the adoption proceedings. Once the
IN re ADOpTION OF DAvID C. 	723
Cite as 280 Neb. 719

relationship is terminated, the parent has no standing to object
to the adoption. Because the order affects Jerad’s substantial
right, it is final and appealable and this court has jurisdiction
to review it.
finding of abandonment
[7] We next consider the merits of the county court’s order,
in which the court found by clear and convincing evidence
that Jerad had abandoned David and that Jerad’s consent was
not needed for the adoption. The issue of abandonment in an
adoption proceeding must be established by clear and convinc-
ing evidence. See In re Guardianship of T.C.W., 235 Neb. 716,
457 N.W.2d 282 (1990), citing In re Adoption of Simonton, 211
Neb. 777, 320 N.W.2d 449 (1982).
Misty testified that Jerad made no attempt to establish a
relationship with David. She did not hear from Jerad during
her pregnancy even though she maintained the same telephone
number she had while she and Jerad were dating. He did not
ask to be informed of David’s birth and was not present when
David was born. Because Misty’s family was in North platte,
she decided to move there to raise David.
After David was born, Misty received a snowsuit for David
in the mail, but there was no name on the package, so she
did not know whether it came from Jerad. Jerad did not send
any other gifts for David or provide any financial support for
him. Jerad did not register with the biological father registry.
Misty denied Jerad’s claims that she refused to make arrange-
ments for visitation, that he offered money and clothing for
David, and that she thwarted his attempts to have a relationship
with David.
In May 2009, Misty contacted Jerad to inform him that her
husband, Jeremy, wanted to adopt David. Jerad gave Misty
his contact information so she could send the relinquishment
forms. A few days later, Jerad’s wife contacted Misty and said
she and Jerad wanted to be a part of David’s life. Jerad’s wife
offered to pay Misty $100 per month in child support. Misty
said she was surprised that Jerad wanted to start a relationship
with David at that time because Jerad had never sent cards or
724 	280 NeBrASkA repOrTS

gifts for David’s birthday or at Christmas and had never called
and asked to speak to David on the telephone.
Jerad testified that his relationship with Misty ended when
she learned she was pregnant. Jerad said Misty did not want
anything to do with him, in part because of religious differ-
ences. Jerad said that a friend called to let him know of David’s
birth and that he went to the hospital that day. Jerad claimed
he was not allowed to see David, but he did not contact social
services at the hospital for assistance.
Within the first months after David’s birth, Jerad saw David
on one occasion for about 11⁄2 hours at the home of a friend
who was related to Misty. Other visitations were scheduled, but
they were canceled by Misty because she had car trouble or her
daughter was sick.
Jerad said he contacted Misty by telephone in February
2006 and offered her health insurance and money but that
she refused to accept it. Misty denied that she had refused
Jerad’s offer to provide support or health insurance for David.
Around the same time, Jerad contacted an attorney for help
with visitation, but the attorney produced no results. Jerad
testified that he did not attempt to visit David after February
2006. Jerad said that in the 3 months prior to the hearing on
the adoption petition, he tried to negotiate with Misty so he
could be a part of David’s life, but Misty refused. After Misty
contacted Jerad at the end of May 2009 about the adoption,
Jerad contacted an attorney. The State filed a paternity action
in district court, and Jerad filed an answer requesting genetic
testing. An order for genetic testing was entered in the district
court, and it was pending at the time of the hearing in the
adoption case.
Jerad admitted that he had not seen David after February
2006 and had not sent any cards or letters. Jerad said he was
waiting until David was “old enough to know what was going
on.” He had Misty’s telephone number, which had not changed
since David was born. He was not “trying to be the bad guy”
but was trying to negotiate and “work things out.” He was not
aware that he could acknowledge paternity within the first days
after David’s birth.
IN re ADOpTION OF DAvID C. 	725
Cite as 280 Neb. 719

[8] “The question of abandonment is largely one of intent
to be determined in each case from all the facts and circum-
stances.” In re Guardianship of T.C.W., 235 Neb. 716, 720, 457
N.W.2d 282, 285 (1990).
“Willful abandonment has been defined as ‘a voluntary
and intentional relinquishment of the custody of the child
to another, with the intent to never again claim the rights
of a parent or perform the duty of a parent; or, second, an
intentional withholding from the child, without just cause
or excuse, by the parent, of his presence, his care, his love
and his protection, maintenance, and the opportunity for
the display of filial affection . . . .’ . . .”
In re Application of S.R.S. and M.B.S., 225 Neb. 759, 765, 408
N.W.2d 272, 276 (1987), quoting In re Adoption of Simonton,
211 Neb. 777, 320 N.W.2d 449 (1982).
Although § 43-104 specifies the 6 months preceding the fil-
ing of the petition as the critical period of time during which
abandonment must be shown, we have stated that this statutory
period need not be considered in a vacuum. See In re Adoption
of Simonton, supra. “One may consider the evidence of a par-
ent’s conduct, either before or after the statutory period, for this
evidence is relevant to a determination of whether the purpose
and intent of that parent was to abandon his child or children.”
Id. at 783, 320 N.W.2d at 453. The parental obligation “requires
continuing interest in the child and a genuine effort to maintain
communication and association with that child. Abandonment
is not an ambulatory thing the legal effects of which a parent
may dissipate at will by token efforts at reclaiming a discarded
child.” Id. at 784, 320 N.W.2d at 454.
The record supports by clear and convincing evidence that
Jerad abandoned David. Jerad had no contact with and offered
no parental support for David from February 2006 until the fil-
ing of the petition in June 2009. Misty moved to North platte
with David soon after his birth. She did not attempt to hide her
location from Jerad, and she retained the same telephone num-
ber she had when they were dating. She traveled to Omaha at
least once to allow Jerad to visit the child. There is no evidence
that Jerad made any attempt to visit David in North platte.
726 	280 NeBrASkA repOrTS

The last time Jerad attempted to contact David was in
February 2006. He took no further action until the petition was
filed in June 2009. No cards, letters, or gifts were sent, and
Jerad provided no financial support.
David was nearly 4 years old at the time the adoption peti-
tion was filed. The evidence clearly and convincingly supports
a finding that Jerad abandoned David by voluntarily discon-
tinuing any contact with David when the child was no more
than 6 months of age. The county court was correct in finding
abandonment and in concluding that Jerad’s consent to the
adoption was not required.
R emaining assignments of eRRoR
Jerad claims that the county court lacked jurisdiction because
prepetition notice requirements were not met. He claims that
the court erred in (1) deciding that the adoption should proceed
without the consent of the district court, (2) bifurcating the pro-
ceedings and denying an evidentiary hearing on David’s best
interests, and (3) determining that David’s best interests would
be served by proceeding with the adoption.
We find no merit to these assigned errors because Jerad
lacks standing to raise them. This case comes to us follow-
ing the county court’s finding of abandonment. No decree of
adoption has been entered. Once the court found that Jerad
had abandoned David, Jerad no longer had standing to raise
objections.
Consent shall not be required of any parent who has aban-
doned a child for at least 6 months next preceding the filing of
the adoption petition. § 43-104. At any hearing to determine
the parental rights of a putative biological father of a minor
child born out of wedlock and whether such father’s consent is
required for the adoption of such child, the court
shall determine that such father’s consent is not required
for a valid adoption of the child upon a finding of one or
more of the following:
(1) The father abandoned or neglected the child after
having knowledge of the child’s birth;
. . . .
IN re ADOpTION OF DAvID C. 	727
Cite as 280 Neb. 719

(3) The father had knowledge of the child’s birth and
failed to provide reasonable financial support for the
mother or child.
See § 43-104.22. The effect of a finding of abandonment is that
the putative biological father has no further standing to raise
objections in the matter of the adoption.
The same is true of Jerad’s claim that this adoption may not
proceed because there has been no consent by the district court.
Given the finding of abandonment, Jerad has no standing to
object to any issues of consent.
Jerad objects to the county court’s decision to bifurcate the
proceedings and deny an evidentiary hearing on David’s best
interests. He also argues that the county court erred in deter-
mining that David’s best interests were to proceed with the
adoption.
A trial judge has broad discretion over the conduct of a
trial, and absent abuse, that discretion should be respected.
Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394
(2009). Bifurcation of a trial may be appropriate where sepa-
rate proceedings will do justice, avoid prejudice, and further
the convenience of the parties and the court. Id. Bifurcation is
particularly proper where a potentially dispositive issue may
be decided in such a way as to eliminate the need to try other
issues. Id.
In this case, the county court first considered the question
of abandonment. Once the court determined that issue, it could
proceed to consider whether the adoption of David by Jeremy
was in David’s best interests. The court found that Jerad had
abandoned David, and at that time, Jerad no longer had stand-
ing to object to the adoption. It was reasonable, and more
efficient, for the court to divide the proceedings. See Yopp v.
Batt, 237 Neb. 779, 467 N.W.2d 868 (1991) (no error in divid-
ing trial into relinquishment phase and best interests phase).
Although the county court made a finding as to David’s best
interests, Jerad has no standing to object to the court’s find-
ing. We conclude that Jerad’s assignments of error are with-
out merit.
728 	280 NeBrASkA repOrTS

CONCLUSION
The decision of the county court is affirmed.
affiRmed.
STATe ex reL. WAGNer v. AMWeST SUreTY INS. CO. 	729
Cite as 280 Neb. 729
state of nebRasKa ex Rel . l. tim wagneR, diRectoR
of insuRance of the state of nebRasKa , appellee , v.
amwest suRety insuRance company, appellee ,
and fedeRal deposit insuRance coRpoRation,
ReceiveR foR netbanK, f.s.b.,
claimant, appellant.
790 N.W.2d 866
Filed October 29, 2010. 	No. S-09-1128.
1. Insurance: Equity: Appeal and Error. An insurer liquidation proceeding lies
in equity, and an appellate court reviews a liquidation court’s determination of
claims disputes de novo on the record.
2. Contracts: Time. In the absence of a stated time for performance, the law will
imply a time of performance within a reasonable time under the circumstances.
3. Uniform Commercial Code: Security Interests: Notice. The Uniform
Commercial Code is a “pure race” statute in which a subsequent creditor’s notice
of prior creditors is irrelevant.
4. Security Interests. As to priority, conflicting perfected security interests rank in
the order in which they are filed or perfected.
5. Security Interests: Time. Delays in perfecting a security interest measured in
months or years are unreasonable.
6. Waiver: Words and Phrases. A waiver is a voluntary and intentional relin-
quishment of a known right, privilege, or claim, and may be demonstrated by or
inferred from a person’s conduct.
7. Waiver: Estoppel. To establish a waiver of a legal right, there must be a clear,
unequivocal, and decisive act of a party showing such a purpose, or acts amount-
ing to an estoppel on his or her part.
8. Waiver. A waiver requires that the waiving party have full knowledge of all the
material facts.
Appeal from the District Court for Lancaster County: John
a. colboRn, Judge. reversed and remanded.
robert B. Bernstein, of vandenberg & Feliu, L.L.p., James
G. powers and Michael T. eversden, of McGrath, North,
Mullin & kratz, p.C., L.L.O., and William v. Custer, LeeAnn