In re Adoption of Corbin J.

if the evidence was uncontroverted at trial, the burden to pro-
duce evidence showing the existence of a material issue of fact
that prevents judgment as a matter of law shifts to the party
opposing the motion.31
[16] In this case, Multi-Vest presented a prima facie case
that it had no ownership interest in the Colonial Apartments, or
any other duty in relation to the fire that caused the decedents’
pain and suffering prior to their deaths. Maria presented no
evidence at the summary judgment hearing to rebut this prima
facie case and, indeed, does not argue on appeal how Multi-
Vest had a duty to the decedents. A legal duty on the part of
a defendant to protect the plaintiff from injury is an essential
element to an actionable negligence claim.32 We therefore
affirm the district court’s dismissal of both causes of action
against Multi-Vest.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
dismissal of defendant Multi-Vest. As to the remaining defend-
ants, we affirm the dismissal of the wrongful death causes of
action, but reverse the dismissal of the survival actions.
A ffirmed in pArt, And in pArt reversed.
31 Id.
32 See Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994).
in re A doption of C orbin J., A minor Child.
rusti m. And ilJA m., Appellees , v.
John J., AppellAnt.
775 N.W.2d 404
Filed December 4, 2009. 	No. S-09-355.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
IN re ADOptION OF COrbIN j. 	1057
Cite as 278 Neb. 1057
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law.
When reviewing questions of law, an appellate court resolves the questions inde-
pendently of the conclusions reached by the trial court.
4. Paternity: Adoption. Consent of the father of a child born out of wedlock who
has been adjudicated to be the father by a court is required for an adoption to pro-
ceed unless the Nebraska court having jurisdiction over the custody of the child
determines otherwise pursuant to Neb. rev. Stat. § 43-104.22 (reissue 2008).
5. Paternity: Words and Phrases. An adjudicated father is an individual deter-
mined to be the father by a court of competent jurisdiction.
6. Paternity: Adoption: Proof. For an adoption to proceed, the consent of the bio-
logical father who has established a familial relationship with his child is required
unless, under Neb. rev. Stat. § 43-104(2) (reissue 2008), the party seeking
adoption has established that the biological parent (1) has relinquished the child
for adoption by a written instrument, (2) has abandoned the child for at least 6
months next preceding the filing of the adoption petition, (3) has been deprived
of his or her parental rights to such child by the order of any court of competent
jurisdiction, or (4) is incapable of consenting.
Appeal from the County Court for Arthur County: edwArd d.
steenburg, judge. reversed and vacated, and cause remanded
for further proceedings.
brian j. Davis, of berreckman & Davis, p.C., for appellant.
Kelly 	N. 	tollefsen, 	of 	Morrow, 	poppe, 	Watermeier 	&
Lonowski, p.C., for appellees.
heAviCAn, 	C.J., 	wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACk , and miller-lermAn, JJ.
miller-lermAn, j.
NAtUre OF tHe CASe
the issue in this case is whether a putative biological father
who had established a familial relationship with his child is
constitutionally required to comply with certain father registry
and adoption statutes found at Neb. rev. Stat. §§ 43-104(3),
43-104.04, and 43-104.22(7) (reissue 2008) to preserve his
rights in a subsequent adoption. the county court for Arthur
County determined that john j.’s consent to the adoption
of Corbin j. was not required because john failed to com-
ply with the registry statutes. We reverse, because on this
record, these statutes do not constitutionally apply to a putative
1058 	278 NebrASKA repOrtS

biological father who has established a familial relationship
with his child.
StAteMeNt OF FACtS
this case arises from the petition to adopt Corbin filed by
Ilja M., the child’s stepfather. the appellant is john, and the
appellees are rusti M. and Ilja. the minor child, Corbin, was
born out of wedlock to rusti and john in August 1999. rusti
and john are named as Corbin’s mother and father on Corbin’s
birth certificate issued by the State of Colorado, and neither
party is disputing that john is Corbin’s biological father.
Corbin lived with rusti and john for the first 3 years of his
life. In May 2002, rusti left the family home with Corbin,
without notice to john or indication of where she and the child
were going. After leaving, on May 31, rusti filed a petition to
establish paternity, custody, support, and equitable relief in the
district court for Keith County, Nebraska. In the petition, rusti
identified john as the biological father of Corbin and requested
that the court award child support.
On October 11, 2002, the district court for Keith County
entered a temporary order granting john visitation rights with
Corbin and ordering that john pay child support and provide
health insurance for Corbin.
john’s visitations with Corbin had begun in july 2002. john
states that the parties would meet halfway between their homes
to exchange Corbin. On February 21, 2003, rusti married Ilja.
john states that in September, he went to pick up Corbin in
Colorado and that rusti never arrived. john states he attempted
to call rusti and her mother but that both telephone numbers
had been disconnected.
On july 8, 2003, the district court for Keith County dis-
missed the paternity action for lack of prosecution. Up to that
date, john states that he had paid child support amounting to
$3,790 and that he has maintained health insurance for Corbin
up to the time of the adoption proceedings.
the parties assert different accounts of john’s efforts to
locate Corbin after the dismissal of the paternity action. john
claims that he had no knowledge of Corbin’s whereabouts and
that he did what he could to locate Corbin. rusti contends that
IN re ADOptION OF COrbIN j. 	1059
Cite as 278 Neb. 1057

after leaving john, she returned to live on her family ranch in
Keith County and that at all times, john knew the location and
telephone number of the ranch, but that john did not attempt to
contact her or Corbin.
In September 2008, the attorney representing appellees con-
tacted john and informed him that Ilja was petitioning to adopt
Corbin and that adoption papers had been prepared for john
to sign. john acknowledges that on December 15, he received
a notice titled “In re relinquishment of Corbin . . . for
Adoption.” john further acknowledges that after receipt of this
document, he did not file a “Notice of Objection to Adoption
and Intent to Obtain Custody” within 5 business days.
On january 7, 2009, appellees filed a petition for adoption in
the county court for Arthur County. On january 20, john filed
an objection to adoption proceedings and motion to dismiss. In
january, john also filed a complaint for determination of pater-
nity and custody in the district court for Arthur County. the
issue of abandonment of Corbin by john was not raised in the
pleadings, and we do not consider it in our analysis.
All parties filed motions for summary judgment in the
county court action. Appellees requested that the court find that
the consent of the putative father, john, was not required in this
adoption, and john requested that the county court dismiss the
case and transfer the proceedings to the district court. john, as
the biological father who had previously established a familial
relationship with Corbin, challenged the constitutionality of
certain adoption statutes as applied to him. the county court
entered an order finding that john was a putative father and
that he had failed to file the requisite Notice of Objection to
Adoption and Intent to Obtain Custody, as provided variously
in Neb. rev. Stat. §§ 43-104 to 43-104.25 (reissue 2008). As
a consequence of these failures, the court reasoned that john’s
consent was not needed for the adoption to proceed.
After the county court granted appellees’ motion for sum-
mary judgment, a final adoption hearing was held on March 3,
2009. the recording device malfunctioned, and there is no bill
of exceptions from the final adoption hearing. On March 3, an
adoption decree was entered allowing Corbin to be adopted by
Ilja. john appeals.
1060 	278 NebrASKA repOrtS

ASSIGNMeNtS OF errOr
john argues, restated and summarized, that the county court
erred in (1) finding that the provisions of certain adoption
statutes found at §§ 43-104 to 43-104.25, regarding the Notice
of Objection to Adoption and Intent to Obtain Custody, which
on their face eliminate the requirement of john’s consent to
the adoption proceedings, were constitutionally applied in this
case; (2) finding that john is a putative rather than an adjudi-
cated father; (3) overruling john’s objection at the final adop-
tion hearing and entering a final adoption decree; and (4) fail-
ing to record the final adoption hearing held on March 3, 2009.
Given our resolution of this appeal, we do not reach the fourth
assignment of error.
StANDArDS OF reVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law. Hauptman, O’Brien v. Turco, 277
Neb. 604, 764 N.W.2d 393 (2009). In reviewing a summary
judgment, we view the evidence in the light most favorable to
the party against whom the judgment is granted and give such
party the benefit of all reasonable inferences deducible from
the evidence. Id.
[3] Statutory interpretation presents a question of law. When
reviewing questions of law, we resolve the questions indepen-
dently of the conclusions reached by the trial court. See Allen
v. Immanuel Med. Ctr., ante p. 41, 767 N.W.2d 502 (2009).
ANALYSIS
John Is a Putative Biological Father With a Familial
Relationship to Corbin: On This Record the Adoption
Statutes Allowing Corbin’s Adoption to Proceed
Without John’s Consent Were Unconstitutional
as Applied to John.
the county court for Arthur County determined that john
was the putative father of Corbin and that because of his failure
to comply with the relevant adoption statutes, john’s consent
IN re ADOptION OF COrbIN j. 	1061
Cite as 278 Neb. 1057

to Corbin’s adoption by Ilja was not required. the court noted
that john had failed to file the requisite Notice of Objection
to Adoption and Intent to Obtain Custody and relied, in part,
on §§ 43-104(3), 43-104.04, and 43-104.22(7) in reaching its
conclusion. john asserts that his consent to the adoption of
Corbin is required because he is the adjudicated father. In the
alternative, he claims his consent is required under constitu-
tional principles. In this regard, john claims that the provisions
of the adoption statutes relied on by the court, which on their
face eliminate the need for his consent, were unconstitutional
as applied to him, because the record establishes that he is
Corbin’s biological father and that he had established a familial
relationship with Corbin. Although we do not agree with john
that he is an adjudicated father, we do agree with john’s consti-
tutional analysis. We conclude that the challenged statutes were
unconstitutionally applied to john, and the court erred on this
record when it concluded that john’s consent to the adoption
was not required.
the following sections of the adoption statutes are relevant
to our analysis in this case.
Section 43-104 requires:
(1) except as otherwise provided in this section and in
the Nebraska Indian Child Welfare Act, no adoption shall
be decreed unless written consents thereto are filed in the
county court of the county in which the person or persons
desiring to adopt reside or in the county court in which
the separate juvenile court having jurisdiction over the
custody of the child is located . . . .
. . . .
(3) Consent shall not be required of a putative father
who has failed to timely file (a) a Notice of Objection to
Adoption and Intent to Obtain Custody pursuant to sec-
tion 43-104.02 and, with respect to the absence of such
filing, a certificate has been filed pursuant to section
43-104.04 . . . .
Section 43-104.01(7) provides:
A person who has been adjudicated by a Nebraska court
of competent jurisdiction to be the biological father of
a child born out of wedlock who is the subject of a
1062 	278 NebrASKA repOrtS

proposed adoption shall not be construed to be a putative
father for purposes of sections 43-104.01 to 43-104.05
and shall not be subject to the provisions of such sections
as applied to such fathers. Whether such person’s consent
is required for the proposed adoption shall be determined
by the Nebraska court having jurisdiction over the cus-
tody of the child pursuant to section 43-104.22, as part of
proceedings required under section 43-104 to obtain the
court’s consent to such adoption.
Section 43-104.02 provides:
A Notice of Objection to Adoption and Intent to Obtain
Custody shall be filed with the biological father regis-
try under section 43-104.01 on forms provided by the
Department of Health and Human Services (1) within five
business days after the birth of the child or (2) if notice is
provided after the birth of the child (a) within five busi-
ness days after receipt of the notice provided under sec-
tion 43-104.12 . . . .
Section 43-104.04 provides:
If a Notice of Objection to Adoption and Intent to
Obtain Custody is not timely filed with the biological
father registry pursuant to section 43-104.02, the mother
of a child born out of wedlock or an agent specifically
designated in writing by the mother may request, and the
Department of Health and Human Services shall supply,
a certificate that no such notice has been filed with the
biological father registry. the filing of such certificate
pursuant to section 43-102 shall eliminate the need or
necessity of a consent or relinquishment for adoption by
the putative father of such child.
Section 43-104.08 provides:
Whenever a child is claimed to be born out of wedlock
and the biological mother contacts an adoption agency
or attorney to relinquish her rights to the child, or the
biological mother joins in a petition for adoption to be
filed by her husband, the agency or attorney contacted
shall attempt to establish the identity of the biological
father and further attempt to inform the biological father
of his right to execute a relinquishment and consent to
IN re ADOptION OF COrbIN j. 	1063
Cite as 278 Neb. 1057

adoption, or a denial of paternity and waiver of rights, in
the form mandated by section 43-106, pursuant to sec-
tions 43-104.08 to 43-104.25.
Section 43-104.12 provides:
In order to attempt to inform the biological father
or possible biological fathers of the right to execute
a relinquishment and consent to adoption or a denial
of paternity and waiver of rights, the agency or attor-
ney representing the biological mother shall notify, by
registered or certified mail, restricted delivery, return
receipt requested:
(1) Any person adjudicated by a court in this state or
by a court in another state or territory of the United States
to be the biological father of the child;
. . . .
(3) Any person who is recorded on the child’s birth
certificate as the child’s father;
(4) Any person who might be the biological father of
the child who was openly living with the child’s biologi-
cal mother within the twelve months prior to the birth of
the child.
Section 43-104.22 provides:
At any hearing to determine the parental rights of an
adjudicated biological father or 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 receive evidence with regard to the actual
paternity of the child and whether such father is a fit,
proper, and suitable custodial parent for the 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;
. . . .
(7) Notice was provided pursuant to sections 43-104.12
to 43-104.14 and the putative father failed to timely file
a Notice of Objection to Adoption and Intent to Obtain
Custody pursuant to section 43-104.02.
1064 	278 NebrASKA repOrtS

Section 43-104.25 provides:
With respect to any person who has been adjudicated
by a Nebraska court of competent jurisdiction to be the
biological father of a child born out of wedlock who is the
subject of a proposed adoption:
(1) Such person shall not be construed to be a putative
father for purposes of sections 43-104.01 to 43-104.05
and shall not be subject to the provisions of such sections
as applied to such fathers[.]
For his initial argument, john claims that as a result of the
Keith County paternity action, he is an adjudicated father, and
that consequently, his consent for an adoption is required on
this basis. In this case, the county court concluded that john
had not been adjudicated to be the father of Corbin. We agree
with the court’s analysis in this regard.
[4,5] based on our ruling in In re Adoption of Jaden M.,
272 Neb. 789, 725 N.W.2d 410 (2006), and the recent amend-
ments to the adoption statutes found in 2007 Neb. Laws, L.b.
247, consent of the father of a child born out of wedlock who
has been adjudicated to be the father by a court is required
for an adoption to proceed unless the Nebraska court having
jurisdiction over the custody of the child determines otherwise
pursuant to § 43-104.22. See § 43-104.01(7). An adjudicated
father is an individual determined to be the father by a court of
competent jurisdiction. See id.
the only court order entered addressing john’s paternity
was a temporary order in the district court for Keith County,
requiring john to pay child support and to provide medical
insurance and designating visitation. the action in which
the temporary order was entered was ultimately dismissed
for lack of prosecution. this temporary order was not a final
court-ordered determination that john was Corbin’s father. We
agree with the county court that john was not adjudicated as
Corbin’s father.
because john was not adjudicated as Corbin’s father, the
issue presented in this case is whether, consistent with con-
stitutional principles, in order to proceed with the adoption
in the absence of an allegation of abandonment, the parties
needed the consent of john, a putative father, whom the parties
IN re ADOptION OF COrbIN j. 	1065
Cite as 278 Neb. 1057

acknowledge to be the biological father of the child and who
had established a familial relationship with the child. We con-
clude on this record that applying §§ 43-104(3), 43-104.04,
and 43-104.22(7) infringed on john’s constitutionally protected
parental rights.
the record is undisputed that appellees provided john with
notice of the adoption proceedings on December 15, 2008.
Indeed, they obtained and attached to the petition for adop-
tion a certificate obtained pursuant to § 43-104.04 from the
Nebraska Department of Health and Human Services dated
December 29, 2008, stating that john did not file a Notice of
Objection to Adoption and Intent to Obtain Custody. Appellees
claim that under the statutes, because they provided john
with notice of the adoption proceedings and he did not file a
Notice of Objection to Adoption and Intent to Obtain Custody
within 5 business days, john’s consent is not required. See
§§ 43-104(3), 43-104.04, and 43-104.22(7). Contrary to appel-
lees’ analysis, we conclude that john’s failure to file within 5
days does not resolve the issue of whether john’s consent was
required, because we are persuaded that these statutory require-
ments were unconstitutionally applied to john.
recently, in In re Adoption of Jaden M., supra, we noted
that this court has adopted and applied the reasoning of the
U.S. Supreme Court in Lehr v. Robertson, 463 U.S. 248, 103
S. Ct. 2985, 77 L. ed. 2d 614 (1983), regarding the consti-
tutionally protected rights of unwed fathers under the 14th
Amendment’s Due process Clause. In Lehr, the U.S. Supreme
Court stated that “[w]hen an unwed father demonstrates a full
commitment to the responsibilities of parenthood by ‘com[ing]
forward to participate in the rearing of his child’ [citation omit-
ted] his interest in personal contact with his child acquires sub-
stantial protection under the Due process Clause.” 463 U.S. at
261. When we consider john’s constitutional challenge in our
analysis, it is this constitutionally protected right that guides
our decision.
prior to Lehr, the Court had addressed the interests of
unmarried biological fathers in a series of cases. In Stanley
v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. ed. 2d 551
(1972), the Court held an Illinois law which presumed that all
1066 	278 NebrASKA repOrtS

unmarried biological fathers were unfit parents was unconsti-
tutional. In Quilloin v. Walcott, 434 U.S. 246, 256, 98 S. Ct.
549, 54 L. ed. 2d 511 (1978), the Court permitted the adoption
of a child by his stepfather over the objection of his biological
father because the biological father had “never exercised actual
or legal custody over his child, and thus has never shouldered
any significant responsibility with respect to the daily super-
vision, education, protection, or care of the child.” In Caban v.
Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. ed. 2d 297
(1979), the Court held that a New York statute that required the
consent of an unmarried mother to the adoption of her children
but contained no similar requirement for the consent of an
unmarried biological father violated equal protection where the
unmarried biological father had developed a substantial rela-
tionship with his children, had lived with the children and their
mother during the period in which both children were born,
and had provided financial support for the family.
In a concurring opinion, Chief justice Lewis of the Supreme
Court of Florida observed, and we agree, that “[a] unifying
premise between [sic] these cases is that the Court draws a
distinction between unmarried biological fathers who have
developed a relationship with their child and fathers without
such a relationship.” Heart of Adoptions, Inc. v. J.A., 963 So.
2d 189, 204 (Fla. 2007) (Lewis, C.j., concurring in result
only). Similarly, in In re Adoption of Jaden M., 272 Neb. 789,
725 N.W.2d 410 (2006), we concluded that the predecessor
to the current § 43-104.22(7), which eliminated the consent
requirement of certain biological fathers, infringed upon the
constitutionally protected parental rights of the father of the
child proposed for adoption. In so concluding, we noted that
because the father in In re Adoption of Jaden M. had “provided
support and established familial ties with his biological child,
his interest in personal contact with his child has acquired sub-
stantial protection.” 272 Neb. at 796, 725 N.W.2d at 415. We
noted in In re Adoption of Jaden M. that our holding therein
was anticipated by prior Nebraska jurisprudence. See, In re
Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d
272 (1987); White v. Mertens, 225 Neb. 241, 404 N.W.2d
410 (1987).
IN re ADOptION OF COrbIN j. 	1067
Cite as 278 Neb. 1057

In this case, the record shows that after Corbin’s birth in
August 1999, rusti, john, and Corbin lived together for 3 years
and john established familial ties with Corbin. there is no dis-
pute that john is the biological father of Corbin and is named
as the father on the birth certificate. based on these facts and
the relevant jurisprudence explained above, we conclude that
john’s interest in his child had acquired substantial constitu-
tional protection and that the court erred when it ruled john’s
consent to the adoption was not required and granted summary
judgment in favor of appellees.
[6] We conclude that for an adoption to proceed, the consent
of the biological father who has established a familial rela-
tionship with his child is required unless, under § 43-104(2),
the party seeking adoption has established that the biologi-
cal parent:
(a) has relinquished the child for adoption by a written
instrument, (b) has abandoned the child for at least six
months next preceding the filing of the adoption petition,
(c) has been deprived of his or her parental rights to such
child by the order of any court of competent jurisdiction,
or (d) is incapable of consenting.
Accordingly, the court erred when it allowed the adoption
of Corbin to proceed without john’s consent due to john’s
failure to file certain notices. because john has acquired sub-
stantial protection in his right to have contact with Corbin,
§§ 43-104(3), 43-104.04, and 43-104.22(7) were unconstitu-
tionally applied to john. the grant of summary judgment in
favor of appellees, based on the determination that john’s con-
sent was not required, was error.
The Trial Court Erred in Granting
the Decree of Adoption.
because we have concluded that the court erred in granting
summary judgment in favor of appellees, we further conclude
that the county court erred in granting the adoption of Corbin
by Ilja without john’s consent. We therefore reverse the grant
of summary judgment, vacate the adoption decree entered on
March 3, 2009, and remand the cause for further proceedings
consistent with this opinion.
1068 	278 NebrASKA repOrtS

CONCLUSION
On this record, where no issue of abandonment has been
raised, the statutory adoption provisions allowing the adop-
tion of Corbin to proceed without john’s consent, where
john is the biological father of Corbin and had established a
familial relationship with him, were unconstitutionally applied
to john. therefore, the grant of summary judgment and the
entry of the adoption decree by the county court in reliance
on these statutory provisions was error. the grant of summary
judgment is reversed, the adoption decree is vacated, and the
matter is remanded for further proceedings consistent with
this opinion.
reversed And vACAted, And CAuse remAnded
for further proCeedings.
IN re ADOptION OF COrbIN j. 	1069
Cite as 278 Neb. 1057