Jeremiah J. v. Dakota D.

JEREMIAH J. v. DAKOTA D. 	211
Cite as 285 Neb. 211
At this time, the record is insufficient to address Ramirez’
claims. There is no evidence in the record of the racial com-
position of the jury pool, the procedure utilized for the jury
pool, or the racial composition of the Hall County commu-
nity. Additionally, for purposes of the Batson challenge, the
record is unclear on whether Ortega was even peremptorily
struck by the State. Furthermore, the record does not include
defense counsel’s objections, if any, to the removal of Ortega
or the State’s reasons for exercising the alleged peremp-
tory challenge.
An evidentiary hearing is required to properly resolve these
issues, and therefore, these issues are not appropriate for
review on direct appeal. Ramirez is free to raise these issues of
ineffective assistance of trial counsel in a motion for postcon-
viction relief.
CONCLUSION
The jury’s decision to convict Ramirez of assault in the third
degree does not preclude the sentencing court from ordering
restitution for Brant’s broken jaw. A broken jaw is not a per
se “serious bodily injury,” and the jury’s rejection of assault in
the first degree does not implicate the sentencing court’s find-
ings of fact on the damages actually suffered by Brant. We also
find that the record is insufficient to address both of Ramirez’
claims of ineffective assistance of counsel.
A ffirmed.
JeremiAh J., AppellAnt, v.
dAkotA d., Appellee.
826 N.W.2d 242
Filed February 8, 2013. 	No. S-12-517.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

212 	285 NEBRASKA REPORTS
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, which an appellate court reviews independently of the lower court’s
determination.
4. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that the moving party is entitled to judgment
as a matter of law.
5. Summary Judgment: Evidence: Proof. After the movant for summary judg-
ment makes a prima facie case by producing enough evidence to demonstrate
that the movant is entitled to judgment if the evidence was uncontroverted at
trial, the burden to produce 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.
6. Summary Judgment. If a genuine issue of fact exists, summary judgment may
not properly be entered.
7. Paternity: Adoption. A biological mother may not deliberately misrepresent or
withhold information as to the date of a child’s birth in order to prevent the bio-
logical father from timely objecting to the adoption of the child.
Appeal from the County Court for Hall County: philip
m. mArtin, Jr., Judge. Reversed and remanded for further
proceedings.
Mark Porto, of Shamberg, Wolf, McDermott & Depue, for
appellant.
Rachel A. Daugherty, of Myers & Daugherty, P.C., L.L.O.,
for appellee.
heAvicAn, c.J., Wright, connolly, StephAn, mccormAck,
miller-lermAn, and cASSel, JJ.
Wright, J.
NATURE OF CASE
Jeremiah J. appeals from the county court’s determination
that Jeremiah did not comply with the statutory requirement
that to contest the adoption of his minor child, he had to file
an objection within 5 business days of the child’s birth. The
court sustained Dakota D.’s motion for summary judgment and
dismissed Jeremiah’s “Amended Petition to Establish Necessity
of Father’s Consent to Adoption,” concluding there were no

JEREMIAH J. v. DAKOTA D. 	213
Cite as 285 Neb. 211
genuine issues as to the facts in this case. We reverse the judg-
ment and remand the cause for further proceedings.
SCOPE OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter of
law. Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777,
826 N.W.2d 225 (2012). In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable
to the party against whom the judgment was granted, and gives
that party the benefit of all reasonable inferences deducible
from the evidence. Id.
[3] Statutory interpretation presents a question of law,
which we review independently of the lower court’s determi-
nation. In re Interest of Erick M., 284 Neb. 340, 820 N.W.2d
639 (2012).
FACTS
Jeremiah and Dakota began dating in 2008 and stopped see-
ing each other in 2011. In the middle of June 2011, shortly after
she became aware of her pregnancy, Dakota told Jeremiah she
was pregnant. Following an argument, Dakota told Jeremiah he
was not the father and that she did not want Jeremiah to have
anything to do with the pregnancy.
In October 2011, Dakota told an adoption agency that
Jeremiah was the biological father of her expected child.
Danessa Kenney, a caseworker with the agency, called Jeremiah
sometime in November to inform him he had been identified
by Dakota as a possible biological father for the unborn child.
She told Jeremiah that Dakota wanted to place the child up
for adoption.
Jeremiah visited with Kenney in person on November 30,
2011, and was given a letter describing his legal rights and
responsibilities. The letter stated that the expected due date for
the unborn child was February 18, 2012. The letter stated in
part that if he wanted to file a notice of objection, he had to do

214 	285 NEBRASKA REPORTS
so “within 5 business days after the birth of the child.” At that
time, Jeremiah expressed to Kenney that he did not want the
child put up for adoption.
After his meeting with Kenney, Jeremiah attempted to con-
tact Dakota by telephone. He was unable to reach her, but he
left her a voice mail message. Dakota did not return his tele-
phone call. He again attempted to contact Dakota on December
14, 2011. Again, Dakota did not answer and did not return his
telephone call.
The child was born on February 9, 2012, but Jeremiah was
not told about the birth. Jeremiah attempted to contact Dakota
two times on February 13. She did not answer either of those
telephone calls. However, he did manage to speak with her that
day. During their brief conversation, Dakota did not tell him
that the child had already been born. At the summary judg-
ment hearing, she testified that she did not tell him the child
had been born because she did not want him to know about the
birth during the time period he had to object to the adoption.
Her testimony was, in part, as follows:
Q[.] Did you communicate directly with him [Jeremiah]
on February 13th?
A[.] Yes, I did.
Q[.] Did you tell him that the baby had been born?
A[.] No, I did not.
. . . .
Q[.] Isn’t it true that you did not want him to know
about the birth?
A[.] Within the five to 10 business days, no, I did not.
Q[.] Let me break this down. Within the five business
days that he had to object to the [adoption], is that what
you are referring to?
A[.] Yes, I am.
Q[.] You did not want him to know of the birth during
that period of time[?]
A[.] That is correct.
After their telephone conversation on February 13, Dakota
blocked Jeremiah’s telephone number.
Jeremiah called and spoke with Kenney on February 13,
2012, and asked how Dakota’s pregnancy was going. Kenney

JEREMIAH J. v. DAKOTA D. 	215
Cite as 285 Neb. 211
responded that she could not legally communicate with Jeremiah
about the birth of the child. He asked Kenney what he needed
to do to exercise his rights as a father. Kenney told Jeremiah
to read the letter she had given him in November and the let-
ter would explain to him what he needed to do. She directed
Jeremiah to the Web site for the Bureau of Vital Statistics that
would provide him access to the paperwork necessary to file an
objection to the adoption. As of February 13, Jeremiah did not
know that the child had already been born.
Jeremiah contacted a local hospital on February 15, 2012,
in an attempt to discover if Dakota had been admitted to
the hospital in anticipation of the child’s birth. He was told
she was not a patient at the hospital. He called the hospital
again on February 17, attempting to discover if Dakota was
a patient. He was again told she was not. On February 17, he
again contacted Kenney who did not provide him with any
information. Kenney testified that Jeremiah was angry during
that telephone call because he could not get in contact with
Dakota and Kenney would not give him any information about
his child.
On February 17, 2012, Jeremiah attempted twice to contact
Dakota, but was unable to reach her. As of February 17, the
day before the child’s original due date, Jeremiah was unable
to acquire any knowledge that the child had been born and he
sought legal help to file an objection. Jeremiah was never told,
prior to the birth of the child, that he could file an objection to
the adoption before the child was born, and he testified that he
did not know it was an option.
On 	February 	20, 	2012, 	Jeremiah 	signed 	a 	“Notice 	of
Objection to Adoption and Intent to Obtain Custody” with
the Nebraska Department of Health and Human Services. On
the form, Jeremiah noted that the child was due to be born on
February 18, but that as of the date the form was signed, it was
unknown to him if the child had been born. The notice was
filed on February 21, the first business day after the February
18 expected due date. Sometime after he had filed his objec-
tion, Jeremiah was told by one of Dakota’s coworkers that the
child had been born and that it was a girl. He was told the
incorrect birth date, and the child’s name was incorrect.

216 	285 NEBRASKA REPORTS
On 	February 	23, 	2012, 	Jeremiah 	filed 	a 	“Petition 	to
Establish Necessity of Father’s Consent to Adoption” in the
county court for Hall County, requesting the court to deter-
mine whether Jeremiah’s consent was needed for the proposed
adoption of the minor child. Dakota moved for summary
judgment. At the hearing on Dakota’s motion, the court deter-
mined that the notice given to Jeremiah on November 30,
2011, complied with the applicable statute because it advised
Jeremiah to seek legal counsel immediately. It found that
Jeremiah was aware of the pregnancy and that the due date
was simply an estimate of when the child would be born and
was not a guarantee of the birth date. It sustained Dakota’s
motion for summary judgment because Jeremiah failed to
object to the adoption within 5 business days after the birth of
the child, as required by law.
ASSIGNMENTS OF ERROR
Jeremiah assigns as error, restated, that (1) summary judg-
ment was improper because a genuine issue of material fact
remains and (2) the county court erred in granting Dakota’s
motion for summary judgment because the 5-day filing require-
ment in Neb. Rev. Stat. § 43-104.02 (Reissue 2008) was
unconstitutional as applied to him.
ANALYSIS
SummAry Judgment
[4-6] The party moving for summary judgment has the bur-
den to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that the mov-
ing party is entitled to judgment as a matter of law. Professional
Mgmt. Midwest v. Lund Co., 284 Neb. 777, 826 N.W.2d 225
(2012). After the movant for summary judgment makes a prima
facie case by producing enough evidence to demonstrate that
the movant is entitled to judgment if the evidence was uncon-
troverted at trial, the burden to produce 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. Id.
If a genuine issue of fact exists, summary judgment may not

JEREMIAH J. v. DAKOTA D. 	217
Cite as 285 Neb. 211
properly be entered. Nye v. Fire Group Partnership, 265 Neb.
438, 657 N.W.2d 220 (2003).
The county court sustained Dakota’s motion for summary
judgment 	because 	Jeremiah 	did 	not 	strictly 	comply 	with
§ 43-104.02, which states:
A Notice of Objection to Adoption and Intent to
Obtain Custody shall be filed with the biological father
registry 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 business days after receipt of the notice
provided under section 43-104.12 or (b) within five
business days after the last date of any published notice
provided under section 43-104.14, whichever notice is
earlier. Such notice shall be considered to have been
filed if it is received by the department or postmarked
prior to the end of the fifth business day as provided in
this section.
At the hearing, Dakota presented a prima facie case that
would entitle her to a favorable verdict at trial when she
introduced evidence that Jeremiah had not strictly complied
with § 43-104.02. Her evidence, including affidavits, estab-
lished that the child’s birth date was February 9, 2012, and
that Jeremiah did not file a notice of objection within 5 busi-
ness days of that birth date. Jeremiah admitted that he did not
file a notice within 5 business days of the child’s birth. Since
the statute requires a father to file a notice of objection to
the adoption within 5 business days of the child’s birth date
and Jeremiah did not file such objection, a prima facie case
was made.
The burden then shifted to Jeremiah to produce evidence
that would create a material issue of fact such that granting
summary judgment in Dakota’s favor was improper. This bur-
den was met through Dakota’s testimony that she withheld the
child’s date of birth so that Jeremiah would miss the opportu-
nity to file an objection. Summary judgment was not proper
because a genuine issue of material fact existed regarding

218 	285 NEBRASKA REPORTS
whether Dakota was equitably estopped from relying upon
§ 43-104.02 because she purposefully and deliberately misled
Jeremiah regarding the date of birth of the child to intention-
ally prevent him from complying with the statute. Kenney also
testified that she did not inform Jeremiah of the birth date
when he called her on February 13, 2012.
The evidence established that Jeremiah told Dakota and
Kenney of his intention to contest the adoption. He actively
sought the child’s date of birth, but he was unable to learn the
date of birth. Dakota’s and Kenney’s actions regarding the date
of birth of the child raise an issue of material fact whether
Dakota is estopped from relying upon § 43-104.02 because she
deliberately attempted to deny Jeremiah information concern-
ing the child’s date of birth in order to prevent Jeremiah from
objecting to the child’s adoption.
[7] A biological mother may not deliberately misrepresent or
withhold information as to the date of the child’s birth in order
to prevent the biological father from timely objecting to the
adoption of the child. The 5-day notice set forth in § 43-104.02
is not meant to be used as a subterfuge for deception to prevent
an alleged father from objecting to the adoption of the child
in question. See Friehe v. Schaad, 249 Neb. 825, 545 N.W.2d
740 (1996).
In Friehe, the biological mother of the child filed a petition
for declaratory judgment in the district court for Hall County
seeking a determination of the respective rights of the par-
ties. She asserted that the putative father’s rights in regard to
the adoption were terminated by his failure to comply with
§ 43-104.02. In response, putative father asserted that the
mother was equitably estopped from claiming the protection
of these statutes as a result of fraudulent misrepresentations.
Specifically, he alleged that the mother was equitably estopped
from relying on § 43-104.02 and Neb. Rev. Stat. § 43-104.04
(Reissue 1993) because the mother intentionally hid the fact of
her pregnancy from the putative father in an attempt to prevent
him from exercising his right to file a notice of intent to claim
paternity within the 5-day period.
In addressing the issue of equitable estoppel, we stated
that the doctrine of equitable estoppel applies where, as the

JEREMIAH J. v. DAKOTA D. 	219
Cite as 285 Neb. 211
result of conduct of a party upon which another person has
in good faith relied to his detriment, the acting party is abso-
lutely precluded, both at law and in equity, from asserting
rights which might have otherwise existed, citing Franksen
v. Crossroads Joint Venture, 245 Neb. 863, 515 N.W.2d 794
(1994). However, we concluded that the putative father’s
claims for equitable estoppel were without factual support
because there was no evidence that the mother intentionally
hid her pregnancy from him.
On the record presented, there is a material issue of fact
whether 	Dakota 	was 	equitably 	estopped 	from 	relying 	on
§§ 43-104.02 and 43-104.04 (Reissue 2008) because she inten-
tionally hid the fact of the child’s birth in an attempt to prevent
Jeremiah from objecting to the adoption. Because there is a
material issue of fact in dispute, the county court erred in sus-
taining Dakota’s motion for summary judgment and dismissing
Jeremiah’s petition.
conStitutionAl chAllengeS
Jeremiah asserts that § 43-104.02 as applied to the facts of
this case violates his due process and equal protection rights
under the 14th Amendment to the U.S. Constitution and arti-
cle I, § 3, of the Nebraska Constitution. Because we conclude
the court erred in sustaining the motion for summary judg-
ment, we do not reach Jeremiah’s constitutional challenges to
§ 43-104.02.
CONCLUSION
A material issue of fact exists whether Dakota was estopped
from relying upon § 43-104.02 because she intentionally mis-
led Jeremiah to prevent him from complying with the require-
ments of § 43-104.02. We reverse the order sustaining sum-
mary judgment in favor of Dakota and remand the cause to the
county court for further proceedings.
reverSed And remAnded for
further proceedingS.
connolly, J., concurring.
I concur in the court’s judgment that this cause must be
remanded for the district court to determine whether Dakota

220 	285 NEBRASKA REPORTS
intentionally misled Jeremiah about the date of the child’s
birth. But I disagree that this finding is relevant to a claim of
equitable estoppel. Jeremiah neither alleged nor argued in the
county court, nor raised on appeal, a claim of equitable estop-
pel. Instead, he argued at trial and on appeal that the statutes
violated his due process and equal protection rights. So the
inquiry is whether the county court could not constitutionally
apply Nebraska’s adoption statutes to bar Jeremiah’s claim that
his consent to an adoption is required.
The 	primary 	issue 	before 	the 	trial 	court 	was 	whether
Nebraska’s adoption statutes,1 as applied to Jeremiah, violated
his constitutional rights. His petition sought an order deter-
mining that he was the child’s father and that his consent to
an adoption was required. He invoked § 43-104.05(1), which
provides a 30-day period for seeking an adjudication of such
claims from the date that the putative father timely filed notice
of his objection.
In his amended petition, Jeremiah alleged that he had filed
his notice of objection on February 21, 2012, the first business
day after the probable delivery date in Dakota’s notice of the
pregnancy. He alleged that Dakota had concealed the child’s
actual date of birth from him. He specifically claimed that to
the extent his failure to comply with § 43-104.02 had rendered
his consent to an adoption unnecessary, the adoption statutes
violated his due process and equal protection rights.
Jeremiah also sought DNA testing to establish his paternity
and an order (1) requiring his consent and (2) determining that
as applied to him, Nebraska’s adoption statutes violated his
constitutional rights. But he did not claim that Dakota should
be equitably estopped from claiming that his consent was
unnecessary under § 43-104.02.
In sustaining Dakota’s motion for summary judgment, the
county court rejected Jeremiah’s constitutional claims because
he failed to timely contact an attorney after receiving notice
that Dakota was pregnant and that he was the biological
father. This reasoning was essentially a determination that
the adoption statutes provided Jeremiah with a sufficient
1 See Neb. Rev. Stat. §§ 43-104 to 43-104.23 (Reissue 2008).

JEREMIAH J. v. DAKOTA D. 	221
Cite as 285 Neb. 211
opportunity to protect his interest in asserting paternity and
seeking custody.
The majority opinion states that Dakota presented a prima
facie case that would entitle her to a favorable verdict at trial
and that the burden then shifted to Jeremiah to produce evi-
dence that would create a genuine issue of material fact. I
disagree. Dakota intended her allegations that Jeremiah had
failed to timely file an objection to an adoption with the bio-
logical father registry as an affirmative defense. Under our case
law, however, Dakota’s defense could not entitle her to judg-
ment regardless of whether Jeremiah’s allegations were true.
The county court could rule for her only because it concluded
that Jeremiah could have protected his rights by contacting an
attorney. So I do not agree with the majority opinion’s burden-
shifting scheme for these adoption proceedings.
Moreover, although our case law has sometimes focused
on whether the biological mother concealed the child’s birth,
Jeremiah’s claim is not against Dakota. Jeremiah claims that
under these circumstances, applying the registration deadline
to bar his paternity claim violated his constitutional rights. And
unlike the putative father in Friehe v. Schaad,2 Jeremiah did
not claim that the mother was estopped from relying on the
adoption statutes because of her deceptions. So I believe that
the opinion incorrectly characterizes Jeremiah’s constitutional
claims as an equitable estoppel claim.
due proceSS requireS An A dequAte
opportunity to form A relAtionShip
With A child
An analysis of Jeremiah’s due process claim necessarily
starts with Lehr v. Robertson.3 There, the U.S. Supreme Court
considered whether New York’s putative father statutes vio-
lated an unwed father’s right to develop a relationship with
his biological child. The putative father had never lived with
or supported his alleged child and had rarely seen her. But
2 Friehe v. Schaad, 249 Neb. 825, 545 N.W.2d 740 (1996).
3 Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985, 77 L. Ed. 2d 614
(1983).

222 	285 NEBRASKA REPORTS
after the mother married, her husband sought to adopt the
child when she was over 2 years old. The putative father did
not know of the adoption proceeding. Before the court entered
the adoption decree, he had commenced a separate proceed-
ing to have a court determine his paternity and order support
payments and visitation. After the adoption was ordered, how-
ever, the court dismissed his petition. New York maintained
a putative father registry and notified any registered putative
father of an adoption proceeding. The putative father had not
registered and argued that he did not know of the requirement.
He claimed that he was entitled to notice and a hearing before
he was deprived of an actual or potential relationship with his
biological child.
The Supreme Court distinguished between a developed
parent-child relationship and a potential relationship:
When an unwed father demonstrates a full commitment to
the responsibilities of parenthood by “com[ing] forward
to participate in the rearing of his child,” . . . his interest
in personal contact with his child acquires substantial pro-
tection under the Due Process Clause. At that point it may
be said that he “act[s] as a father toward his children.” . . .
But the mere existence of a biological link does not merit
equivalent constitutional protection. . . .
The significance of the biological connection is that
it offers the natural father an opportunity that no other
male possesses to develop a relationship with his off-
spring. . . .
In this case, we are not assessing the constitutional
adequacy of New York’s procedures for terminating a
developed relationship. . . . We are concerned only with
whether New York has adequately protected his opportu-
nity to form such a relationship.4
The Court concluded that New York’s putative father stat-
utes were adequate to protect the putative father’s opportunity
interest and that his ignorance of the law was not a reason to
criticize it. The Court also rejected his alternative argument
that because he had commenced a paternity proceeding, he was
4 Id., 463 U.S. at 261-63 (citations omitted).

JEREMIAH J. v. DAKOTA D. 	223
Cite as 285 Neb. 211
entitled to “special” notice beyond what the statutory scheme
would have provided had he complied:
The Constitution does not require either a trial judge or a
litigant to give special notice to nonparties who are pre-
sumptively capable of asserting and protecting their own
rights. Since the New York statutes adequately protected
appellant’s inchoate interest in establishing a relationship
with [his biological child], we find no merit in his claim
that his constitutional rights were offended because the
Family Court strictly complied with the notice provisions
of the statute.5
In analyzing the statutory scheme, however, the Court also
pointed out the type of scheme that would be procedurally
inadequate to protect a putative father’s opportunity interest:
If this scheme were likely to omit many responsible
fathers, and if qualification for notice were beyond the
control of an interested putative father, it might be
thought procedurally inadequate. Yet, as all of the New
York courts that reviewed this matter observed, the right
to receive notice was completely within appellant’s con-
trol. By mailing a postcard to the putative father registry,
he could have guaranteed that he would receive notice of
any proceedings to adopt [his biological child].6
In a footnote, the Court stated, “There is no suggestion in the
record that appellee engaged in fraudulent practices that led
appellant not to protect his rights.”7
With this due process framework set out, I turn to Nebraska’s
statutes.
nebrASkA’S A doption StAtuteS A re
inAdequAte to protect A putAtive
fAther’S pAternity clAim from
A biologicAl mother’S frAud
In Nebraska, if a biological mother withholds or misrepre-
sents information about the child’s birth to a putative father,
5 Id., 463 U.S. at 265.
6 Id., 463 U.S. at 263-64 (emphasis supplied).
7 Id., 463 U.S. at 265 n.23.

224 	285 NEBRASKA REPORTS
the adoption statutes are inadequate to ensure he has an oppor-
tunity to claim paternity. This is true because if the mother
withholds or misrepresents information about the child’s birth,
a putative father will usually not have an opportunity to timely
file a notice of his objection to an adoption and intent to seek
custody. And the county court misconstrued how the statutes
operate by reasoning that Jeremiah could have protected his
rights simply by contacting an attorney after receiving notice
of Dakota’s pregnancy.
Unless exceptions apply,8 § 43-104.12 requires the mother’s
adoption agency or attorney to exercise due diligence to pro-
vide a statutory notice that is set out in § 43-104.13 to sev-
eral categories of potential fathers. Those categories include
“[a]ny person who has been identified as the biological father
or possible biological father of the child by the child’s bio-
logical mother . . . .”9 Under § 43-104.13, the notice “shall
be served sufficiently in advance of the birth of the child,
whenever possible, to allow compliance with subdivision (1)
of section 43-104.02.”10 In most circumstances, including here,
§ 43-104.02 requires a putative father to file a notice of his
paternity claim during a 5-day period that begins on the child’s
date of birth.
Under § 43-104.13, the biological mother’s notice to a
putative father must include the following information: (1)
the mother’s name, that she is pregnant, and her “expected or
actual date of delivery”; (2) that the mother plans to relinquish
custody or join in a petition for adoption filed by her husband;
(3) that the mother has identified the recipient as a possible
biological father; and (4) that the recipient may have rights
with regard to the child.11 Under § 43-104.13(5), the notice
must state that the recipient has the right to (a) deny paternity,
(b) waive parental rights, (c) relinquish and consent to adop-
tion, (d) file a notice of objection and intent to obtain custody
8 See § 43-104.18.
9 See § 43-104.12(5).
10 See § 43-104.13.
11 See id.

JEREMIAH J. v. DAKOTA D. 	225
Cite as 285 Neb. 211
under § 43-104.02, or (e) object to an adoption proceeding in a
court that has already determined that he is the child’s biologi-
cal father.12
In addition, the notice must state that if the putative father
plans to object to the adoption and seek custody, he should
seek his own legal counsel immediately. Alternatively, if he
wishes to waive his rights, he can contact the mother’s agency
or attorney. Finally, the notice must inform the recipient that
if he is the biological father and if the child is not adopted,
he has a duty to support the child and to pay for pregnancy-
related expenses.13
But under § 43-104.13, if the biological mother’s agent
provides 	prebirth 	notice 	of 	the 	pregnancy, 	her 	agent 	is
required to provide only the mother’s expected delivery date.
There is no requirement for the State, the biological mother,
or her agent to notify the putative father of the child’s birth
or to notify him that he can file a prebirth notice of objection.
Moreover, even if he were told that he could file a prebirth
notice of objection—because of the postbirth filing require-
ment under § 43-104.02—the prebirth notice of objection
would be insufficient to provide him with an opportunity to
claim paternity and demonstrate that he is fit to be the cus-
todial parent.
Many other jurisdictions provide a putative father with an
opportunity to receive notice of an adoption proceeding or to
object to an adoption if he has timely filed a notice of his intent
to claim paternity with a putative father registry.14 But the stat-
utes vary widely in their requirements and effect.
Some of these statutes require a putative father to register
a paternity claim with the registry before the child’s birth
or within a specified period after the child’s birth.15 Under
12 See id.
13 See id.
14 See Annot., 28 A.L.R.6th 349 (2007).
15 See, e.g., Ala. Code § 26-10C-1(i) (2009); Mont. Code Ann. § 42-2-206
(2007); Tenn. Code Ann. § 36-2-318 (2001); Tex. Fam. Code Ann.
§ 160.402(a) (West 2008).

226 	285 NEBRASKA REPORTS
some state statutes, filing a prebirth claim of paternity would
mean that the putative father’s consent to an adoption is
required, that he is entitled to notice of an adoption proceed-
ing or a proceeding to terminate parental rights, or that he may
claim paternity and object to the adoption.16 That is not true
in Nebraska.
It is true that § 43-104.01 permits a putative father to file
a prebirth notice of his objection to an adoption and intent
to seek custody. Yet, a prebirth registration of a paternity
claim is insufficient to obtain any right to assert the claim or
receive notification of an adoption proceeding. Instead, under
§ 43-104.02(1), a putative father’s consent to an adoption is
not required if he does not file a postbirth notice of an objec-
tion within 5 days of the child’s birth. Based on the statute’s
language, this requirement applies even if the putative father
has filed a prebirth notice of objection. The majority opinion
illustrates that adoption agencies explain the law exactly this
way to a putative father. The only possible exceptions for fil-
ing a notice of objection after the 5-day deadline apply if the
biological mother provided the statutory notice after the child’s
birth or provided notice through publication.17
Nebraska is not alone is requiring a putative father to
register a claim of paternity within a specified period after
the child’s birth. But the deadline under other state statutes
with a postbirth filing requirement is typically 30 days from
the child’s birth.18 Nebraska’s 5-day filing deadline after the
16 See, e.g., Lehr, supra note 3; Ariz. Rev. Stat. Ann. § 8-106.01(A) (2007);
Ark. Code Ann. § 20-18-702 (2005); Ind. Code Ann. § 31-19-5-4
(LexisNexis 2007); Iowa Code Ann. § 233.2(4)(b) (West 2006); Mont.
Code Ann. § 42-2-203 (2007); Tenn. Code Ann. § 36-2-318(i); Wyo. Stat.
Ann. § 1-22-109(a) (2011).
17 See § 43-104.02(2).
18 See, e.g., Ariz. Rev. Stat. Ann. § 8-106.01(B); 750 Ill. Comp. Stat. Ann.
§ 50/12.1(b) (LexisNexis Cum. Supp. 2009); Ind. Code Ann. § 31-19-5-12
(LexisNexis 2007); Minn. Stat. Ann. § 259.52(7) (West Cum. Supp. 2013);
Ohio Rev. Code Ann. § 3107.07(B)(1) (LexisNexis Supp. 2009). See, also,
Unif. Parentage Act (2000) § 402, 9B U.L.A. 322 (2001); Rebeca Aizpuru,
Note, Protecting the UnWed Father’s Opportunity to Parent: A Survey of
Paternity Registry Statutes, 18 Rev. Litig. 703 (1999).

JEREMIAH J. v. DAKOTA D. 	227
Cite as 285 Neb. 211
child’s birth appears to be the shortest of any state statutory
scheme.19 And unlike some state statutes, Nebraska’s statutes
do not contain an exception for putative fathers who did not
receive notice of the child’s birth.20
It is true that under § 43-104.05, we have upheld the
30-day limitation period for commencing a paternity claim
against procedural and substantive due process claims. In In re
Adoption of Baby Girl H.,21 the biological mother provided the
statutory notice after the child’s birth and the letter informed
the putative father that he had 5 days from his receipt of the
letter to file a notice of his objection with the registry. The
putative father timely filed a notice of objection, but failed to
timely commence a proceeding to adjudicate his claim in the
proper court.
But here, we are not dealing with the 30-day period for
commencing a paternity claim. More important, it is the
5-day time limit for filing a postbirth notice of an objection
that undercuts a putative father’s opportunity to object to an
adoption and seek custody. Section 43-104.05(1) provides
a 30-day limitation period for a putative father to com-
mence a paternity claim if the putative father has “timely
filed” a notice of objection under § 43-104.02. And under
§ 43-104.05(2), if the putative father has not timely filed the
notice of objection, he is out of luck—i.e., his consent to an
adoption is not required.
So, in most cases, unless the biological mother notifies the
putative father of the child’s birth or the putative father oth-
erwise knows of the birth, the putative father will not have
an adequate opportunity to timely file a notice of his objec-
tion to an adoption and intent to seek custody. This is likely
true even if the putative father has filed a prebirth notice of
objection and obtained an attorney. Simply put, the 5-day
19 See Aizpuru, supra note 18. Compare, Mo. Ann. Stat. § 453.030(3)2(c)
(West Cum. Supp. 2013); N.M. Stat. Ann. § 32A-5-19(E) (2006).
20 See, Ariz. Rev. Stat. § 8-106.01(E); 750 Ill. Compiled Stat. Ann. 50/12.1(g).
21 See In re Adoption of Baby Girl H., 262 Neb. 775, 635 N.W.2d 256
(2001), disapproved on other grounds, Carlos H. v. Lindsay M., 283 Neb.
1004, 815 N.W.2d 168 (2012).

228 	285 NEBRASKA REPORTS
limitation period is not long enough for the State to notify a
registered putative father of the child’s birth—even if the stat-
utes required the State to provide this notice—and for him to
respond with a notice of objection.
The absence of a statutory notice of the child’s birth might
not present a constitutional problem if the period for filing a
post-birth paternity claim were long enough for the putative
father to discover the child’s birth even without the biological
mother’s cooperation. Requiring the putative father to make
inquiries about the birth is consistent with putting the burden
on him to protect his potential relationship with the child.
But the combination of these statutes permits the biological
mother to flout the procedures intended to protect the putative
father’s opportunity to object to an adoption and demonstrate
his fitness for custody. By withholding or misrepresenting
information to the putative father about the child’s birth, the
biological mother has shut the door on the putative father’s
opportunity to object.22
As explained, however, the Due Process Clause requires the
State to adequately protect a putative father’s opportunity to
form a relationship with his child.23 And the notice provisions
of Nebraska’s adoption statutes will frequently not protect a
putative father’s opportunity interest if the biological mother
withholds or misrepresents the fact of the child’s birth.
This court has upheld Nebraska’s 5-day filing deadline while
recognizing that it might violate a putative father’s due process
rights when he did not have notice of his alleged child’s birth.
In Shoecraft v. Catholic Social Servs. Bureau,24 the putative
father filed a notice of his paternity 9 days after the child’s
birth—too late to object to the adoption.
We discussed 	the 	legislative 	history 	behind the 5-day-
postbirth filing period. We stated that the Legislature had
22 See, also, § 43-104.04.
23 See In re Adoption of Baby Girl H., supra note 21, citing Lehr, supra
note 3.
24 Shoecraft v. Catholic Social Servs. Bureau, 222 Neb. 574, 385 N.W.2d 448
(1986).

JEREMIAH J. v. DAKOTA D. 	229
Cite as 285 Neb. 211
selected this period as a reasonable time after the birth for the
mother to know whether the father will step forward to claim
his child and assume parental responsibilities. We concluded
that the 5-day filing requirement reflected the State’s compel-
ling interest in facilitating a quick adoption when the mother
does not know the biological father’s intentions. In contrast,
the putative father knew of the pregnancy but had not offered
to pay for pregnancy expenses, and he knew of the child’s birth
on the same day. Nonetheless, we recognized that the adoption
statutes’ failure to require notification to a putative father of
the child’s birth “might well, in a particular case, render con-
stitutionally suspect as violative of due process the termination
of the father’s rights.”25
The next year, in In re Application of S.R.S. and M.B.S.,26
we held that Nebraska’s adoption statutes were unconstitu-
tional as applied to a biological father who had lived with and
supported the mother and his child for several months. The
mother placed the child with an agency for adoption when he
was 2 years old. We reversed the trial court’s judgment that the
father’s consent was unnecessary because he had not filed a
notice of his paternity claim with the registry until more than 2
years after the child’s birth. Relying on Lehr, we distinguished
fathers who had nurtured and supported the mother and child
from those with a mere biological tie to the child. We stated
that when the father has acknowledged paternity and estab-
lished ties with the child, “[t]he effect of the [5-day filing]
requirement is to allow the mother to singlehandedly sever a
relationship between father and child, no matter what the qual-
ity of that relationship is.”27
In two later cases, we similarly held that Nebraska’s adop-
tion statutes were unconstitutionally applied to permit a step-
father’s adoption of the biological father’s child without his
consent in the following circumstances: (1) when the biological
25 Id. at 578, 385 N.W.2d at 451.
26 In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272
(1987).
27 Id. at 769, 408 N.W.2d at 278.

230 	285 NEBRASKA REPORTS
father has developed a relationship with the child and provided
support28; and (2) when a court has previously adjudicated the
biological father’s claim of paternity and ordered visitation and
support payments.29
In Friehe,30 we again upheld the 5-day filing requirement
against a putative father’s as-applied due process challenge
when he learned of the child’s birth on the next day. In the
days following the birth, the biological father and mother
engaged in discussions over his desire to obtain custody and
her desire for an adoption. They agreed to temporarily place
the child with an adoption agency and postpone a decision.
When the father contacted an attorney 2 days later, he was
informed of the filing requirement, but it had expired by 1
day. The father still did not file a notice of objection until
the next month, after the mother informed him that she had
decided to relinquish the child for adoption. The father later
filed a declaratory judgment action, claiming that the adoption
statutes were unconstitutional as applied to him. The trial court
rejected this claim.
On appeal, we concluded that the putative father had it
within his power to assert his rights and that his ignorance of
the filing requirement was not an excuse. We concluded that
the putative father’s own failure to act after learning of the
child’s birth had deprived him of an opportunity to assert his
rights. Thus, under the facts of the case, the statutes did not
violate his due process rights.
But here, the critical distinction is that the putative father
claims he did not know of the child’s birth. Jeremiah did not
move for summary judgment. Accepting his allegations as
true, however, the 5-day-postbirth filing requirement permitted
Dakota to singlehandedly deny Jeremiah any opportunity to
preserve his right to object to the adoption, establish his pater-
nity, and seek custody.31 She could do this only because of the
28 See In re Adoption of Corbin J., 278 Neb. 1057, 775 N.W.3d 404 (2009).
29 See In re Adoption of Jaden M., 272 Neb. 789, 725 N.W.2d 410 (2006).
30 Friehe, supra note 2.
31 Compare In re Application of S.R.S. and M.B.S., supra note 26.

JEREMIAH J. v. DAKOTA D. 	231
Cite as 285 Neb. 211
inadequate protection of a putative father’s opportunity interest
in the adoption statutes.
Because Dakota has admitted to withholding the child’s
birth date from Jeremiah, I believe that the only remain-
ing factual issue is whether Jeremiah otherwise knew of the
child’s birth. Because the court did not correctly decide the
due process issue, I believe on remand it must make this find-
ing. I would hold that if the court finds that Jeremiah could
not have filed the postbirth notice of objection because of
Dakota’s deceptions, it cannot constitutionally apply the adop-
tion statutes to bar his claims that he is the child’s father and
that his consent to the adoption is required. Other courts have
reached similar conclusions.32 Because I reach this conclusion,
it is unnecessary to consider whether the statutes would also
violate Jeremiah’s equal protection rights if applied to bar
his claims.
StephAn, J., joins in this concurrence.
32 See, In re M.N.M., 605 A.2d 921 (D.C. 1992); Petition of Doe, 159 Ill. 2d
347, 638 N.E.2d 181, 202 Ill. Dec. 535 (1994); Doe v. Queen, 347 S.C.
4, 552 S.E.2d 761 (2001); In re Adoption of Baby Boy Doe, 717 P.2d 686
(Utah 1986).