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IN RE ADOPTION OF MICAH H.

Cite as 301 Neb. 437

In re Adoption of Micah H., a minor child.

Daniel H. and Linda H., appellees, 

v. Tyler R., appellant.

___ N.W.2d ___

Filed October 26, 2018. No. S-18-146.

1. Jurisdiction: Juvenile Courts: Appeal and Error. A jurisdictional 

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

An appellate court reviews juvenile cases de novo on the record and 

reaches its conclusions independently of the juvenile court’s findings.

2. Statutes: Appeal and Error. To the extent an appeal calls for statutory 

interpretation or presents questions of law, an appellate court must reach 

an independent conclusion irrespective of the determination made by the 

court below.

3. Adoption: Appeal and Error. Appeals in adoption proceedings are 

reviewed by an appellate court for error appearing on the record.

4. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, the inquiry is whether the decision conforms 

to the law, is supported by competent evidence, and is neither arbitrary, 

capricious, nor unreasonable.

5. Adoption. The matter of adoption is statutory, and the manner of procedure and terms are all specifically prescribed and must be followed.

6. Adoption: Parent and Child: Parental Rights. Consent of a biological 

parent to the termination of his or her parental rights is the foundation of 

our adoption statutes, and an adoption without such consent must come 

clearly within the exceptions contained in the statutes.

7. Adoption: Parent and Child. A determination regarding parental consent, a finding under Neb. Rev. Stat. § 43-104(2) (Reissue 2016), or 

a determination regarding substitute consent does not end the court’s 

inquiry as to whether the petition for adoption should be approved.

8. Adoption. Upon a hearing in an adoption proceeding, if the statutory 

requirements are otherwise satisfied, the court may decree an adoption 

after finding that such adoption is in the best interests of the child.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/26/2018 09:12 AM CDT
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9. Due Process: Parent and Child. An established familial relationship is 

a liberty interest entitled to substantial due process protection.

10. Constitutional Law: Parent and Child. Concerning a parent-child relationship, the mere existence of a biological link does not merit equivalent constitutional protection.

11. ____: ____. The constitutional protection given to the familial relationship stems from the emotional attachments that derive from the intimacy 

of daily association.

12. Constitutional Law: Parent and Child: Adoption: Notice. When a 

biological father has not taken the opportunity to form a relationship 

with his child, the constitution does not afford him an absolute right to 

notice and an opportunity to be heard before the child may be adopted.

13. Indian Child Welfare Act: Parental Rights. The Nebraska Indian 

Child Welfare Act provides a higher standard of protection to the rights 

of the parent or Indian custodian of an Indian child than does the 

Indian Child Welfare Act; therefore, the Nebraska Indian Child Welfare 

Act controls.

14. ____: ____. Under the Nebraska Indian Child Welfare Act, there 

is no precise formula for active efforts; the active efforts standard 

requires a case-by-case analysis and should be judged by the individual 

circumstances.

15. ____: ____. Under the Nebraska Indian Child Welfare Act, active efforts 

are required even if the parent is incarcerated, but may include programs 

offered by the Department of Correctional Services.

16. ____: ____. Under the Nebraska Indian Child Welfare Act, a parent’s 

demonstrated lack of willingness to participate in treatment may be considered in determining whether the state has taken active efforts.

17. Adoption: Abandonment: Time. Consent for an adoption is not 

required when a parent has abandoned the child for at least 6 months 

next preceding the filing of the adoption petition.

18. Abandonment: Evidence: Proof. In order for a court to find that 

abandonment has occurred, the petitioning party bears the burden of 

proving by clear and convincing evidence that the parent abandoned 

the child.

19. Abandonment: Proof. To constitute abandonment, it must appear that 

there has been, by the parents, a giving up or total desertion of the minor 

child. There must be shown an absolute relinquishment of the custody 

and control of the minor and thus the laying aside by the parents of all 

care for the minor.

20. Abandonment: Words and Phrases. Abandonment may be found 

where there is willful or intentional conduct on the part of the parent which evinces a settled purpose to forgo all parental duties and 

relinquish all parental claims to the child, or a willful neglect and 
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refusal to perform the natural and legal obligations of parental care 

and support.

21. Abandonment: Evidence. The conduct constituting abandonment must 

appear by clear and convincing evidence to be willful, intentional, or 

voluntary, without just cause or excuse.

22. Adoption. Adoption statutes will be construed strictly in favor of the 

rights of the natural parents in controversies involving termination of the 

relation of the parent and child.

23. Abandonment: Evidence: Appeal and Error. The various definitions 

of abandonment do not require an appellate court to view the statutory 

period defined in Neb. Rev. Stat. § 43-104(2)(b) (Reissue 2016) in a 

vacuum. One may consider the evidence of a parent’s conduct, either 

before or after the statutory period, because this evidence is relevant to 

a determination of whether the purpose and intent of that parent was to 

abandon his or her child or children.

24. Parental Rights: Abandonment. In considering the issue of abandonment, parental incarceration may be considered as a basis for termination of parental rights.

25. ____: ____. Consideration of parental abandonment is not to say that 

criminal conduct or imprisonment alone necessarily justifies an order of 

permanent deprivation.

26. ____: ____. In a parental termination proceeding, a court may consider a parent’s inability to perform his or her parental obligations 

because of imprisonment and the nature of the crime committed, which 

considerations are relevant to the issue of parental fitness and child 

welfare, as is the parent’s conduct prior to and during the period of 

incarceration.

27. Indian Child Welfare Act: Intent. The policy behind the Indian Child 

Welfare Act was to further the nation’s interest in protecting the best 

interests of Indian children and to promote the stability and security of 

Indian tribes and families by establishing minimum federal standards.

28. Constitutional Law: Parental Rights. It is a well-established maxim of 

constitutional law that the Due Process Clause of the 14th Amendment 

protects the fundamental right of parents to make decisions concerning 

the care, custody, and control of their children.

29. Adoption: Parental Rights: Abandonment: Final Orders. Despite a 

finding of abandonment, a parent retains parental rights until the final 

judgment denying or granting the petition for adoption, and the parent 

may still participate in the proceedings to present evidence that adoption is not in the child’s best interests.

30. Adoption: Parental Rights. If the court finds that adoption is not in the 

child’s best interests, then the rights of the parent, who was deemed to 

have abandoned the child, are returned to the status quo.
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31. Adoption: Abandonment. Abandonment, for purposes of adoption, 

is not always determined in proceedings separate from the underlying 

adoption, because nothing in the adoption statutes absolutely requires 

bifurcated proceedings.

Appeal from the County Court for Saunders County: Patrick

R. McDermott, Judge. Affirmed in part, and in part vacated 

and remanded with directions.

Jennifer D. Joakim for appellant.

Michael J. Novotny, of Fredericks, Peebles & Morgan, 

L.L.P., for appellees.

Evelyn N. Babcock and George T. Babcock, of Law Offices 

of Evelyn N. Babcock, for amici curiae Evelyn N. Babcock and 

George T. Babcock.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

This is an adoption case we first visited in In re Adoption of 

Micah H.,1 where we concluded that the county court applied 

the wrong standard of proof in determining abandonment. We 

further concluded that the active efforts requirement of the 

Nebraska Indian Child Welfare Act (NICWA)2 applied to cases 

involving the termination of parental rights over Indian children, even when the parent is not of Native American descent. 

We remanded the cause to the county court.

On remand, the county court, applying the correct standard of clear and convincing evidence, found that (1) the 

petitioning grandparents, Linda H. and Daniel H., had made 

active efforts to provide remedial and rehabilitative programs 

designed to “unite the parent . . . with the Indian child,” under 

1 In re Adoption of Micah H., 295 Neb. 213, 887 N.W.2d 859 (2016).

2 Neb. Rev. Stat. §§ 43-1501 to 43-1517 (Reissue 2016).
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§ 43-1505(4), and (2) Linda and Daniel presented clear and 

convincing evidence that Tyler R., the biological father, had 

abandoned Micah H., the child in question. Tyler appeals. This 

case presents issues regarding the interpretation of the relevant 

adoption statutes, as well as NICWA, and whether Tyler abandoned Micah. We affirm in part, vacate the adoption decree, 

and remand the cause to the county court with directions.

BACKGROUND

Micah is the 10-year-old biological child of Tyler and 

Allison H. Allison is a member of the Oglala Sioux Tribe. As 

such, Micah is an “Indian child” pursuant to the federal Indian 

Child Welfare Act of 1978 (ICWA)3 and NICWA.

For the majority of Micah’s life, he has resided with his 

legal guardians, Linda and Daniel, who are Allison’s adoptive 

parents and do not share Allison’s Native American heritage. 

Linda and Daniel sought to become Micah’s guardians in 

March 2012, due to Allison’s concerns regarding her ability to maintain sobriety. In April, the Saunders County Court 

appointed Linda and Daniel as Micah’s guardians.

According to the record, Tyler also struggles with drug and 

alcohol addiction. He has been incarcerated since February 

2012 for an alcohol-related motor vehicle homicide and has 

a projected release date of August 2019, at the earliest. Prior 

to his 2012 incarceration, Tyler had numerous encounters 

with the criminal justice system, many of those drug or alcohol related.

In January 2014, Micah was taken to see a psychologist 

for an evaluation. The psychologist’s report concluded that 

“[g]iven obvious stressors (i.e.; [Allison’s] and [Tyler’s] substance abuse, [Tyler’s] incarceration, alternate placement [with 

Linda and Daniel], and [grandparent] visitations [with Tyler’s 

mother]) and Micah’s symptoms of anxiety, including stuttering, nightmares, and general worry, a diagnosis of Adjustment 

Disorder with Anxiety appears appropriate.”

3 25 U.S.C. §§ 1901 to 1963 (2012).
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Linda and Daniel filed a petition for adoption and termination of parental rights in Saunders County Court. During the 

course of the adoption proceedings, Allison voluntarily relinquished all parental rights to, and custody of, Micah, asking 

that Micah be permitted to be adopted by Linda and Daniel. 

Tyler objected to Linda and Daniel’s petitioned adoption. Linda 

and Daniel also served a copy of the complaint on the president of the Oglala Sioux Tribe, as required by § 43-1505(1), 

and the tribe declined to intervene.

In 2015, the Saunders County Court denied Linda and 

Daniel’s petition. Linda and Daniel appealed, assigning as error 

that (1) the county court erred in finding that ICWA applied 

at the request of Tyler, a non-Indian, and (2) the county court 

erred in applying a higher burden of proof to the abandonment 

element under Neb. Rev. Stat. § 43-104(2) (Reissue 2016) by 

requiring that Linda and Daniel demonstrate abandonment 

“beyond a reasonable doubt.”

On appeal, we determined that the county court erred in 

applying the “‘beyond a reasonable doubt’” standard to the 

abandonment element and also in finding that Linda and 

Daniel were not required to show that active efforts had been 

made, under NICWA, to unite Tyler and Micah.4 We noted 

that the appropriate standard concerning abandonment under 

§ 43-104(2) is “clear and convincing evidence” of abandonment.5

 Further, we explained that under NICWA, Linda and 

Daniel were required to show active efforts to unite Tyler and 

Micah or that attempts to provide active efforts had been made 

to the extent possible under the circumstances. We remanded 

the cause to the county court for further proceedings.6

On remand, the county court found in favor of Linda and 

Daniel. Specifically, the county court concluded that Linda and 

4 In re Adoption of Micah H., supra note 1, 295 Neb. at 225, 887 N.W.2d 

at 868.

5 Id.

6 Id.
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Daniel had demonstrated active efforts to unite Micah with 

Tyler by contacting the tribe in an attempt to establish services, 

as well as directing Tyler to the same treatment programs that 

they had used for Allison. The county court also found that 

Tyler had abandoned Micah.

Although the county court found there was evidence that 

Tyler had engaged in some treatment programs, it noted that 

Tyler continued to use drugs and alcohol, leading to his conviction for motor vehicle homicide. The county court also found 

there was no evidence that Tyler even attempted to acquaint 

himself with the history, cultural norms, and practices of the 

tribe, or any customs that have bearing on the parent-child 

relationship.

Linda and Daniel testified that as far as they were aware, 

prior to his incarceration, Tyler maintained a residence in his 

mother’s basement and had the means to acquire transportation. Prior to 2011, Linda and Daniel assisted in providing 

for visitation as well as instruction regarding the appropriate 

interactions with and care for a toddler. Linda indicated that 

she had conversations with Tyler concerning scheduling visits 

and obtaining help with drug and alcohol addiction, and even 

assisted with the parenting plan provided by the court.

Daniel noted that after Micah began demonstrating inappropriate behaviors, Allison retained the services of an attorney in 

order to send Tyler a letter expressing her concern and requesting assurances with regard to the monitoring of Tyler’s visitation with Micah. The letter was dated May 16, 2011. Daniel 

indicated that after Tyler’s receipt of the letter, he discontinued 

his visitations with Micah. Daniel further indicated that he had 

supported Tyler’s visitations with Micah until Micah began 

exhibiting concerning behaviors.

Tyler indicated that since his incarceration, he had 

obtained a certificate from every level of the “Designated 

Dad Program.” The record indicates that Tyler attended one 

Alcoholics Anonymous meeting for the stated purposes of 

“[s]upport[ing] others there.” However, Tyler testified that 
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Linda and Daniel never spoke with him about rehabilitation services and that he did not believe that he required any 

alcohol rehabilitation services. This was despite the fact that 

Tyler had a lengthy criminal history involving alcohol and 

drug possession.

Tyler admitted that he had not had any face-to-face contact 

with Micah since about 2011, or for over a year prior to his 

incarceration. Despite Tyler’s incarceration, he has continued 

to send letters to Micah. Tyler has attempted to utilize money 

he earned during his incarceration to pay the child support he 

owes. However, due to the minimal earnings, the State rejected 

Tyler’s request to direct funds to the Department of Health 

and Human Services. The record demonstrates that Tyler’s 

mother pays the child support and that Tyler assists when he 

is able. Despite claims that Linda and Daniel have prevented 

Micah from visiting Tyler, the court below noted that no formal request had been made by Tyler to have Micah visit him 

in prison.

During the course of the adoption proceedings, and while 

discussing preliminary matters, the court observed that it was 

aware that “these kinds of cases” have two procedural stages. 

But the court indicated that the guardian ad litem had been 

informed that he may be called to testify at the completion 

of the proceedings regarding abandonment and Micah’s best 

interests, rather than the usual procedure of holding a hearing 

on the matter at a later date. In fact, the guardian ad litem did 

testify and was cross-examined regarding Micah’s best interests at that same hearing.

At the conclusion of the trial, the county court judge noted 

that he was “not turning this case over to some other judge to 

read the record and come to a conclusion. I am the one that’s 

heard all the live evidence.” The judge further stated that “[i]t 

would be unfair to a colleague and really unfair to all of the litigants because . . . those observations are important in the context of the whole case.” (Emphasis supplied.) The county court 

then found that Tyler had abandoned Micah and terminated 
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Tyler’s parental rights, further finding that adoption by Linda 

and Daniel was in Micah’s best interests. Accordingly, a decree 

granting the adoption was entered.

Tyler appeals.

ASSIGNMENTS OF ERROR

Tyler assigns that the trial court erred in (1) finding that 

Linda and Daniel had used active efforts to provide remedial services and rehabilitative programs designed to prevent 

the breakup of an Indian family or to unite the parent or 

Indian custodian with the Indian child within the meaning of 

NICWA, (2) finding by clear and convincing evidence that 

Tyler abandoned Micah under § 43-104(2), (3) finding that 

the adoption was in the best interests of the child, (4) granting 

the decree without notice and an opportunity to be heard at a 

further hearing on the best interests of Micah after terminating 

Tyler’s parental rights, and (5) not adhering to statutory adoption requirements.

STANDARD OF REVIEW

[1-4] A jurisdictional issue that does not involve a factual dispute presents a question of law.7

 An appellate court 

reviews juvenile cases de novo on the record and reaches its 

conclusions independently of the juvenile court’s findings.8

To the extent an appeal calls for statutory interpretation or 

presents questions of law, an appellate court must reach 

an independent conclusion irrespective of the determination 

made by the court below.9 Appeals in adoption proceedings 

are reviewed by an appellate court for error appearing on the 

record.10 When reviewing a judgment for errors appearing on 

the record, the inquiry is whether the decision conforms to 

7 In re Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34 (2016).

8 In re Interest of Jorge O., 280 Neb. 411, 786 N.W.2d 343 (2010).

9 Id.

10 Jeremiah J. v. Dakota D., 287 Neb. 617, 843 N.W.2d 820 (2014).
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the law, is supported by competent evidence, and is neither 

arbitrary, capricious, nor unreasonable.11

ANALYSIS

Relevant Legal Principles.

[5,6] In Nebraska, the matter of adoption is statutory, and 

the manner of procedure and terms are all specifically prescribed and must be followed.12 Consent of a biological parent 

to the termination of his or her parental rights is the foundation of our adoption statutes, and an adoption without such 

consent must come clearly within the exceptions contained in 

the statutes.13 As relevant to this case, § 43-104(2) provides 

that “[c]onsent shall not be required of any parent who . . . has 

abandoned the child for at least six months next preceding the 

filing of the adoption petition . . . .”

[7,8] A determination regarding parental consent, a finding under § 43-104(2), or a determination regarding substitute 

consent does not end the court’s inquiry as to whether the petition for adoption should be approved.14 Upon a hearing, if the 

statutory requirements are otherwise satisfied, the court may 

decree an adoption after finding that such adoption is in the 

best interests of the child.15

[9-12] The U.S. Supreme Court has long recognized that 

state intervention in a parent-child relationship is subject to 

constitutional oversight.16 The Court has held that an established familial relationship is a liberty interest entitled to 

substantial due process protection, but made clear that “the 

mere existence of a biological link does not merit equivalent 

11 Id.

12 In re Adoption of Madysen S. et al., supra note 7.

13 Id.

14 Id.

15 Id. (citing Neb. Rev. Stat. § 43-109(1) (Reissue 2016)).

16 See Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 

1070 (1925). See, also, Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 

67 L. Ed. 1042 (1923).
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constitutional protection.”17 The Court explained that the constitutional protection given to the familial relationship stems 

from the emotional attachments that derive from the intimacy 

of daily association.18 Thus, when a biological father has not 

taken the opportunity to form a relationship with his child, 

the constitution does not afford him an absolute right to 

notice and opportunity to be heard before the child may be 

adopted.19 However, adoption cases become even more complex when the adoption involves a child of Native American 

descent.

In cases involving Indian children under ICWA or under 

NICWA, certain additional safeguards provide heightened 

protection to the rights of parents and tribes in proceedings 

involving custody, termination of parental rights, and adoption 

of Indian children.20 These additional safeguards are provided 

to protect “the essential tribal relations and best interests 

of an Indian child by promoting practices consistent with 

[ICWA].”21

The purpose behind ICWA is

to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards 

for the removal of Indian children from their families 

and the placement of such children in foster or adoptive 

homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in 

the operation of child and family service programs.22

17 Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct. 2985, 77 L. Ed. 2d 614 

(1983).

18 Id.

19 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).

20 In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).

21 See § 43-1502.

22 25 U.S.C. § 1902.
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NICWA was enacted by the Nebraska Legislature in 1985 “to 

clarify state policies and procedures regarding the implementation by the State of Nebraska of [ICWA].”23

As this court has previously noted, the applicability of 

ICWA and NICWA to an adoption proceeding turns not on 

the Indian status of the person who invoked the acts, but on 

whether an “Indian child” is involved.24 As we have previously noted, there is no dispute that Micah is an “Indian child” 

under NICWA.25 But, as stated in In re Adoption of Micah H., 

this does not mean that every provision of ICWA and NICWA 

applies to a non-Indian parent.26 And U.S. Supreme Court precedent has limited the applicability of ICWA to certain cases 

based on specific facts as discussed below.27

As noted, ICWA and NICWA set forth an “active efforts” 

element. The federal statute provides in part:

Any party seeking to effect a foster care placement 

of, or termination of parental rights to, an Indian child 

under State law shall satisfy the court that active efforts 

have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of 

the Indian family and that these efforts have proved 

unsuccessful.28

This statute was interpreted by the U.S. Supreme Court in 

Adoptive Couple v. Baby Girl.

29 In Baby Girl, the adoptive 

parents of a young Indian girl petitioned the U.S. Supreme 

Court for certiorari after the South Carolina Supreme Court 

23 § 43-1502.

24 See §§ 43-1504 and 43-1505. See, also, In re Adoption of Kenten H., supra

note 20.

25 See In re Adoption of Micah H., supra note 1.

26 Id.

27 Adoptive Couple v. Baby Girl, 570 U.S. 637, 133 S. Ct. 2552, 186 L. Ed. 

2d 729 (2013).

28 25 U.S.C. § 1912(d).

29 Adoptive Couple v. Baby Girl, supra note 27.
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interpreted provisions of ICWA to require that the child be 

removed from her adoptive parents’ care and placed with 

her biological father. The child’s biological father, a member 

of the Cherokee Nation, had previously attempted to relinquish custody of the child that had never met him. The U.S. 

Supreme Court reversed, interpreting the “active efforts” provision of ICWA to apply “only in cases where an Indian family’s ‘breakup’ would be precipitated by the termination of the 

parent’s rights.”30 Because the Indian father in Baby Girl never 

had custody of the Indian child, the court concluded that the 

“active efforts” element did not apply to the termination of the 

Indian father’s parental rights.31

[13] NICWA provides a higher standard of protection to the 

rights of the parent or Indian custodian of an Indian child than 

does ICWA; therefore, NICWA controls.32

NICWA provides in part:

Any party seeking to effect a foster care placement of, or 

termination of parental rights to, an Indian child under 

state law shall satisfy the court that active efforts have 

been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the 

Indian family or unite the parent or Indian custodian 

with the Indian child and these efforts have proved 

unsuccessful.33

The Nebraska statute is almost identical to the federal statute, 

except it adds that “active efforts” must be made to “unite 

the parent . . . with the Indian child.”34 Pursuant to NICWA, 

“[p]arent means any biological parent or parents of an Indian 

child or any Indian person who has lawfully adopted an Indian 

30 Id., 570 U.S. at 651.

31 Id.

32 See § 43-1513 and 25 U.S.C. § 1921.

33 § 43-1505(4) (as amended by 2015 Neb. Laws, L.B. 566) (emphasis 

supplied).

34 See § 43-1505(4) and 25 U.S.C. § 1912(d).
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child, including adoptions under tribal law or custom.”35 As 

a result, we determined that “active efforts” must be made to 

unite an Indian child with both biological parents, regardless 

of whether they are of Native American descent.36 As such, in 

this case, the county court was directed to determine whether 

attempts were made to provide active efforts to the extent possible under the circumstances.

37 We review that determination 

de novo.

Active Efforts.

In his first assignment of error, Tyler argues that the evidence adduced at trial failed to establish by clear and convincing evidence that Linda and Daniel had used “active efforts” to 

unite Tyler and Micah. We disagree.

The crux of Tyler’s contention is his assertion, made without authority, that § 43-1503(1)(a) to (h) is a checklist, with a 

requirement that Linda and Daniel comply with each subsection. This is a question of statutory interpretation, which this 

court reviews de novo.

[14] There is no precise formula for active efforts; the active 

efforts standard requires a case-by-case analysis38 and should 

be judged by the individual circumstances.39 We have observed 

that efforts made under § 43-1503 should generally be “‘culturally relevant.’”40

In In re Interest of Walter W.,

41 we found that the State 

demonstrated by clear and convincing evidence that it had 

35 See § 43-1503(14).

36 In re Adoption of Micah H., supra note 1.

37 See § 43-1505(4).

38 See In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2014). See, 

also, § 43-1505(4); Judiciary Committee Hearing, L.B. 566, 104th Leg., 

1st Sess. 4 (Feb. 26, 2015).

39 See In re Adoption of Micah H., supra note 1. See, also, § 43-1503(1)(a).

40 See In re Interest of Walter W., supra note 38, 274 Neb. at 865, 744 

N.W.2d at 61.

41 See In re Interest of Walter W., supra note 38.
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made active efforts to provide remedial services and rehabilitative programs to prevent the breakup of the Indian family. In that case, we noted that the State’s efforts consisted 

of providing transportation, foster care and medical care for 

the child, vouchers for rent, clothing, bills, and drug testing. Additionally, the case manager provided the mother with 

information regarding both inpatient and outpatient chemical 

dependency programs and encouraged her to apply. Further, 

the case manager followed up on the mother’s progress—or 

lack thereof, as was the case.

[15,16] In Philip J. v. State,

42 the Alaska Supreme Court 

noted that active efforts are required even if the parent is 

incarcerated, but may include programs offered by the Alaska 

Department of Corrections. However, the court stated that 

“‘a parent’s demonstrated lack of willingness to participate in 

treatment may be considered in determining whether the state 

has taken active efforts’” and noted that the court had excused 

“‘further active efforts once the parent expresses an unwillingness to participate.’”43

In this case, Tyler was counseled by Linda concerning his 

drug and alcohol problems. The record shows that Linda suggested multiple treatment programs in which Tyler could seek 

rehabilitation for his addiction. However, Linda and Daniel had 

no control with regard to forcing Tyler to seek treatment.

The record demonstrates that Linda and Daniel discussed 

proper parenting techniques and interactions with small children. Further, Linda and Daniel assisted with scheduling visitation and the implementation of a parenting plan. Tyler demonstrated no need for housing, financial support, or transportation 

to unite with Micah. Despite Tyler’s numerous criminal convictions involving drugs and alcohol, Tyler maintained that he 

does not suffer from drug or alcohol addiction.

With the exception of completing parenting classes while 

in prison, Tyler has not sought to actively participate in drug 

42 Philip J. v. State, 314 P.3d 518 (Alaska 2013). See 25 U.S.C. § 1912(d).

43 Philip J. v. State, supra note 42, 314 P.3d at 528.
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and alcohol treatment or support programs. In fact, Tyler has 

attended only one Alcoholics Anonymous meeting while in 

prison, at the invitation of another, and suggested to the court 

below that his presence at the meeting was for the purpose of 

supporting others in the program.

Based on the specific facts and circumstances of this case, 

we find that Linda and Daniel undertook active efforts to provide remedial services and rehabilitative programs designed to 

unite Tyler and Micah.

Abandonment.

In his second assignment of error, Tyler argues that there 

was not clear and convincing evidence that he had abandoned Micah.

[17] Generally, for a court to grant an adoption petition, 

§ 43-104(1) requires that the biological parents of the child 

must execute written consent to the adoption. However, under 

§ 43-104(2)(b), consent is not required when a parent has 

“abandoned the child for at least six months next preceding the 

filing of the adoption petition.”

[18-20] In order for a court to find that abandonment has 

occurred, the petitioning party bears the burden of proving by 

clear and convincing evidence that the parent abandoned the 

child.44 In In re Adoption of Simonton,

45 this court defined the 

word “abandoned” when used in the context of adoption proceedings. To constitute abandonment, it must appear that there 

has been, by the parents, a giving up or total desertion of the 

minor child.46 In other words, there must be shown an absolute 

relinquishment of the custody and control of the minor and 

thus the laying aside by the parents of all care for the minor.47

44 See In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272 

(1987).

45 In re Adoption of Simonton, 211 Neb. 777, 320 N.W.2d 449 (1982).

46 Id.

47 In re Application of S.R.S. and M.B.S., supra note 44 (quoting In re 

Adoption of Christofferson, 89 S.D. 287, 232 N.W.2d 832 (1975)).
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We have further noted that abandonment may be found where 

there is willful or intentional conduct on the part of the parent 

which evinces a settled purpose to forgo all parental duties and 

relinquish all parental claims to the child, or a willful neglect 

and refusal to perform the natural and legal obligations of 

parental care and support.48

[21,22] The conduct constituting abandonment as defined 

above must appear by clear and convincing evidence to be 

willful, intentional, or voluntary, without just cause or excuse.49

As a general rule, adoption statutes will be construed strictly 

in favor of the rights of the natural parents in controversies 

involving termination of the relation of the parent and child. 

This is especially true in those cases where it is claimed that 

owing to the willful abandonment of the child, the consent of 

the parent to the adoption is not required.50

[23] Pursuant to § 43-104(2)(b), the critical period of time 

during which abandonment must be shown is the 6 months 

immediately preceding the filing of the adoption petition. 

However, various definitions of abandonment do not require us 

to view this statutory period in a vacuum. One may consider 

the evidence of a parent’s conduct, either before or after the 

statutory period, because this evidence is relevant to a determination of whether the purpose and intent of that parent was to 

abandon his or her child or children.51

[24-26] In considering the issue of abandonment, we 

have held that parental incarceration may be considered as a 

basis for termination of parental rights under Neb. Rev. Stat. 

§ 43-292(1) (Reissue 2016).52 Further, nothing in Nebraska 

law prevents us from applying this consideration in cases 

under § 43-1501. Of course, this is not to say that criminal 

48 Id. (quoting In re Cardo, 41 N.C. App. 503, 255 S.E.2d 440 (1979)).

49 In re Application of S.R.S. and M.B.S., supra note 44.

50 In re Adoption of Simonton, supra note 45.

51 Id.

52 See In re Interest of L.V., 240 Neb. 404, 482 N.W.2d 250 (1992).
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conduct or imprisonment alone necessarily justifies an order 

of permanent deprivation.53 But we can, in a parental termination proceeding, consider “‘“a parent’s inability to perform 

his parental obligations because of imprisonment [and] the 

nature of the crime committed[, which considerations] are . . . 

relevant to the issue of parental fitness and child welfare, as 

[is] the parent’s conduct prior to . . . and during the period of 

incarceration.” . . .’”54 Additionally, we have often stated that 

although incarceration itself may be involuntary, the criminal 

conduct causing the incarceration is voluntary.55

In In Interest of L.V.,

56 the father spent much of his child’s 

life bouncing in and out of the prison system. We held that 

although the father sent his child cards, letters, gifts, small 

amounts of money, a framed photograph, and a painting he had 

made while in prison, that was not sufficient to overcome the 

conclusion that he had abandoned his child.

In In re Interest of M.L.B.,

57 we upheld the termination of 

a mother’s parental rights based on her years of incarceration, 

lack of monetary support, lack of gainful employment when 

not incarcerated, and overall lack of cooperation with services 

intended to assist her in maintaining custody of her child. The 

termination was upheld even though the mother demonstrated 

an interest by sending gifts to the child.

In this case, the evidence demonstrates that since the birth 

of Micah in 2007, Tyler has lived with Micah for a mere 7 

53 See id. See, also, In re Interest of Kalie W., 258 Neb. 46, 601 N.W.2d 753 

(1999).

54 In re Interest of L.V., supra note 52, 240 Neb. at 420, 482 N.W.2d at 260-

61. See, also, In Interest of M.L.K., 804 S.W.2d 398 (Mo. App. 1991); In 

re Juvenile Appeal (84-6), 2 Conn. App. 705, 483 A.2d 1101 (1984); In re 

Pawling, 101 Wash. 2d 392, 679 P.2d 916 (1984); Matter of Adoption of 

Doe, 99 N.M. 278, 657 P.2d 134 (N.M. App. 1982); In re Brannon, 340 

So. 2d 654 (La. App. 1976); In re Welfare of Staat, 287 Minn. 501, 178 

N.W.2d 709 (1970).

55 See In re Interest of Kalie W., supra note 53.

56 In re Interest of L.V., supra note 52.

57 In re Interest of M.L.B., 221 Neb. 396, 337 N.W.2d 521 (1985).
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to 10 days. While Tyler did sometimes have visitation with 

Micah, those visits were by court order and were supervised. 

There is no indication from the record that Tyler ever sought 

unsupervised or increased visitation. Moreover, Tyler never 

had custody of Micah and there is no evidence that Tyler ever 

sought custody. Finally, the record demonstrates that the last 

face-to-face contact between Tyler and Micah was May 8, 

2011. Tyler never requested that Micah visit the prison where 

he has resided since 2012, and will remain until 2019 at which 

time he will be eligible for parole.

As stated above, the court can look beyond the 6 months 

immediately preceding Linda and Daniel’s filing in order to 

determine whether Tyler had abandoned Micah. In considering Tyler’s actions prior to his incarceration, it is clear that he 

had ceased visiting Micah in May 2011. Tyler has never paid 

child support and instead relied on the generosity of his mother 

in order to meet his obligations. In addition, Tyler began corresponding with Micah only upon Tyler’s incarceration. Tyler 

refuses to acknowledge or seek treatment for his substance 

abuse problems, despite the fact that treatment is available to 

him in prison.

The trial court concluded that “[w]hen [Tyler] was at liberty 

he . . . never sought to enforce any visitation with [Micah]. 

During that period he deliberately withheld from [Micah] normal parental care . . . associated with [a] normal parent-child 

relationship.”

We observe the evidence at trial indicated that Tyler had 

sent letters, drawings, and puzzles to Micah, thus making some 

attempt to maintain contact with him. However, as this court 

has noted, where there has been a protracted period of totally 

unjustified failure to exercise parental functions, an isolated 

contact or expression of interest does not necessarily negate 

the inference that a person no longer wishes to act in the role 

of parent to a child.58

58 In re Adoption of Simonton, supra note 45. See, also, Matter of Thomas F. 

L., 87 Misc. 2d 744, 386 N.Y.S.2d 726 (1976).
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These facts, coupled with the fact that Tyler will remain 

incarcerated for the next 1 to 3 years, gives significant 

weight to a finding of abandonment under our precedent.59

As we have stated, “‘“[W]e will not gamble with [a] child’s 

future; [a child] cannot be made to await uncertain parental 

maturity.”’”60

There is no merit to Tyler’s second assignment of error.

Micah’s Best Interests.

In his third assignment of error, Tyler contends that the 

court erred in finding that adoption by Linda and Daniel was in 

Micah’s best interests.

[27] The policy behind ICWA was to further the nation’s 

interest in protecting the best interests of Indian children 

and to promote the stability and security of Indian tribes 

and families by establishing minimum federal standards.61

In determining the best interests of the child, NICWA at 

§ 43-1503 states:

(2) Best interests of the Indian child shall include:

(a) Using practices in compliance with [ICWA], 

[NICWA], and other applicable laws that are designed to 

prevent the Indian child’s voluntary or involuntary out-ofhome placement; and

(b) Whenever an out-of-home placement is necessary, 

placing the child, to the greatest extent possible, in a foster home, adoptive placement, or other type of custodial 

placement that reflects the unique values of the Indian 

child’s tribal culture and is best able to assist the child in 

establishing, developing, and maintaining a political, cultural, and social relationship with the Indian child’s tribe 

or tribes and tribal community.

59 See, generally, In Interest of L.V., supra note 52.

60 See In re Interest of M.L.B., supra note 57, 221 Neb. at 397, 337 N.W.2d 

at 522.

61 See 25 U.S.C. § 1902.
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Here, in complying with NICWA, Linda and Daniel served the 

Oglala Sioux Tribe with notice of their petition. The tribe subsequently declined to intervene in the matter.

As noted in the record, Tyler is a non-Indian. The only evidence of Tyler’s efforts to promote Micah’s Native American 

heritage is his own testimony that he has taken Micah to 

tribal events. Conversely, Linda and Daniel raised Allison, a 

member of the Oglala Sioux Tribe, since the age of 4. Linda 

and Daniel raised Allison to know of her Native American 

heritage, to be familiar with Native American artifacts, and to 

read about Native American culture using books that are kept 

in their home.

The record demonstrates that Linda and Daniel have made 

efforts to expose Micah to his Native American heritage 

through reading books, attending tribal events, and keeping 

Native American artifacts in the home. Additionally, Allison, a 

member of the Oglala Sioux Tribe, continues to interact with 

Micah at Linda and Daniel’s home.

It appears clear from the record that Linda and Daniel took 

measures to facilitate and encourage appropriate interactions 

between Tyler and Micah. Linda and Daniel used active efforts 

to provide and promote appropriate visitation by assisting in 

the implementation of a parenting plan. Upon noticing certain anxious and inappropriate behaviors displayed by Micah, 

Linda and Daniel, along with Allison, sought professional 

assistance in addition to clarification of the parenting plan and 

visitation to ensure a safe environment.

Micah has lived with Linda and Daniel for the majority 

of his life, and they have been his only source of stability. The guardian ad litem independently testified that in his 

opinion, based upon his own independent investigation, the 

adoption of Micah by Linda and Daniel was in Micah’s best 

interests.

Based on the foregoing, we agree that adoption by Linda 

and Daniel is in Micah’s best interests. We accordingly find 

Tyler’s third assignment of error to be without merit.
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Tyler’s Due Process Rights.

In his fourth assignment of error, Tyler argues that the trial 

court failed to allow him to participate in the adoption proceeding, specifically concerning the determination of the best 

interests of Micah. Tyler bases his argument on the proposition that despite a finding of abandonment, a parent retains 

parental rights until the final judgment concerning the petition 

for adoption.

[28] It is a well-established maxim of constitutional law 

that “the Due Process Clause of the Fourteenth Amendment 

protects the fundamental right of parents to make decisions 

concerning the care, custody, and control of their children.”62

[29-31] Tyler properly contends that in In re Adoption of 

Madysen S. et al.,

63 we held that parental rights are not terminated by an order deciding the limited issue of abandonment. 

Despite a finding of abandonment, the parent retains parental 

rights until the final judgment denying or granting the petition for adoption, and the parent may still participate in the 

proceedings to present evidence that adoption is not in the 

child’s best interests.64 Ultimately, if the county court finds that 

adoption is not in the child’s best interests, then the rights of 

the parent, who was deemed to have abandoned the child, are 

returned to the status quo.65 However, we have also stated that 

abandonment, for purposes of adoption, is not always determined in proceedings separate from the underlying adoption, 

because nothing in the adoption statutes absolutely requires 

bifurcated proceedings.66

Here, Tyler challenges that his understanding was that the 

hearing was bifurcated. Tyler fails to provide any evidence in 

62 See Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed.2d 49 

(2000).

63 In re Adoption of Madysen S. et al., supra note 7.

64 Id.

65 Id.

66 Id.
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the record that bifurcation was requested or ordered. In discussing preliminary matters, the court stated that it was aware 

that “these kinds of cases” have two procedural stages, and 

then indicated that the guardian ad litem had been warned that 

he may be called when the court reached the end of the case 

“for his comments on the adoption portion of it.” Further, at 

the conclusion of the trial, the lower court judge was quite 

clear in stating, “I am not turning this case over to some other 

judge to read the record and come to a conclusion. I am the one 

that’s heard all the live evidence.” The judge further stated that 

“[i]t would be unfair to a colleague and really unfair to all of 

the litigants because . . . those observations are important in the 

context of the whole case.” (Emphasis supplied.) Counsel made 

no objection at this point, despite being given the opportunity 

to do so.

Notwithstanding this apparent claim of unfair surprise, Tyler 

was not prejudiced, because he was given a full and fair opportunity to call witnesses at the hearing and was able to crossexamine witnesses, specifically the guardian ad litem. While 

Tyler now argues that he was not aware that the hearing was 

not bifurcated, that fact was stated at the hearing and Tyler did 

not object, otherwise seek to offer additional evidence, or ask 

for a continuance.

We therefore find Tyler’s fourth assignment of error to be 

without merit.

Noncompliance With Statutory Requirements.

Tyler’s final assignment of error is that the trial court erred 

in not strictly adhering to the requirements of Neb. Rev. Stat. 

§§ 43-107 to 43-109 (Reissue 2016).

Section 43-107(b)(i) provides that “[f]or adoption placements occurring on or after January 1, 1994, a preplacement 

adoptive home study shall be filed with the court prior to the 

hearing [on the petition for adoption].” Additionally, anyone 

seeking to adopt a child in the State of Nebraska must submit to a criminal history check conducted by the Nebraska 
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State Patrol. And § 43-108 holds that “[t]he minor child to 

be adopted, unless such child is over fourteen years of age, 

and the person or persons desiring to adopt the child must

appear in person before the judge at the time of hearing . . . .” 

(Emphasis supplied.)

Finally, § 43-109(1) states in relevant part that the child 

must reside with the petitioners for at least 6 months preceding 

the adoption hearing. The statute further provides that “[n]o 

decree of adoption shall be entered unless . . . (b) the medical histories required by subsection (2) of section 43-107 have 

been made a part of the court record, [and] (c) the court record 

includes an affidavit or affidavits signed by the relinquishing 

biological parent . . . .”67

We turn first to § 43-107. Linda and Daniel argue that the 

trial court waived the home study pursuant to their discretion 

under § 43-107(b)(ii), noting that Micah has resided with them 

for the majority of his life and, further, that Linda and Daniel 

are his current legal guardians. This argument misinterprets 

the plain meaning of § 43-107(b)(ii), which states:

An adoptive home study shall not be required when the 

petitioner is a stepparent of the adoptee unless required 

by the court. An adoptive home study may be waived 

by the court upon a showing of good cause by the petitioner when the petitioner is a biological grandparent

or a step-grandparent who is married to the biological 

grandparent at the time of the adoption if both are adopting the child.

(Emphasis supplied.)

The Legislature, in enacting § 43-107(b)(ii), limited the 

courts’ discretion to a clearly defined list of petitioners which 

includes biological grandparents, but is silent as to adoptive 

grandparents. We note that the Legislature defined “grandparent” in Neb. Rev. Stat. § 43-1801 (Reissue 2016) to include 

both biological and adoptive grandparents, but limited its 

67 See § 43-109(1).
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definition of grandparent to § 43-1801 and Neb. Rev. Stat. 

§§ 43-1802 and 43-1803 (Reissue 2016). Therefore, we must 

conclude that the Legislature intentionally excluded adoptive 

grandparents from the waiver permitted under § 43-107(b)(ii).

Linda and Daniel contend that the trial court relied on the 

criminal history check done when Linda and Daniel became 

Micah’s legal guardians in 2012 and that in so relying, Linda 

and Daniel had complied with § 43-107. The record indicates 

that during the guardianship proceedings, the criminal history 

check was waived pursuant to Neb. Rev. Stat. § 30-2602.02 

(Reissue 2016), but does not provide any information concerning the required criminal history check.

We next address § 43-108, which requires Micah’s presence at the time of the adoption hearing. Micah was present 

during some of the proceedings below; however, it does not 

appear from the record that Micah was present at the adoption hearing.

Finally, Linda and Daniel counter that the information 

required under § 43-109 was met by the fact that Micah has 

resided with them for more than 6 months preceding the adoption petition and that the medical records were provided in the 

May 12, 2015, adoption proceeding. But the medical records 

do not appear to be included in the record as argued by Linda 

and Daniel.

As to § 43-109(c), a document relinquishing her parental 

rights was signed by Allison and the county court judge on 

June 3, 2015. The document appears in the record and operates 

as a valid and effective relinquishment of all parental rights.

Based on the above discussion, we find that Tyler’s fifth 

assignment of error has merit, as the county court failed to 

strictly comply with the statutory requirements.

CONCLUSION

The county court did not err in finding by clear and convincing evidence that Linda and Daniel made active efforts 

to reunite Micah with Tyler, in finding that Tyler abandoned 
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Micah for at least 6 months prior to his incarceration, and in 

finding that adoption was in Micah’s best interests. But the 

county court erred when it failed to comply with §§ 43-107 to 

43-109 when granting the adoption.

We therefore affirm the county court’s finding of active 

efforts, abandonment, and best interests of the child. However, 

we vacate the decree of adoption and remand the cause to 

the county court. On remand, the county court shall provide 

Linda and Daniel the opportunity to comply with §§ 43-107 

to 43-109. The county court shall make the ultimate determination of compliance with §§ 43-107 to 43-109 and proceed 

accordingly. If the county court proceeds to enter a decree of 

adoption, the county court shall be bound by this court’s determinations in regard to active efforts, abandonment, and best 

interests of the child factors already litigated.

 Affirmed in part, and in part vacated

and remanded with directions.