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308 Nebraska Reports

IN RE ADOPTION OF YASMIN S.

Cite as 308 Neb. 771

In re Adoption of Yasmin S., 

a minor child.

Kelly H. and Maria V., appellants, 

v. State of Nebraska, appellee.

___ N.W.2d ___

Filed March 26, 2021. No. S-20-543.

1. Jurisdiction: Judgments: Appeal and Error. Determination of a jurisdictional issue which does not involve a factual dispute is a matter of 

law which requires an appellate court to reach its conclusions independent from those of a trial court.

2. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

3. ____: ____. Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to 

ascertain the meaning of statutory words which are plain, direct, and 

unambiguous.

4. Statutes: Legislature: Intent. In construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

5. Statutes. It is not within the province of the courts to read a meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

6. Constitutional Law: Statutes. Where a statute is susceptible of two 

constructions, one of which renders it constitutional, and the other 

unconstitutional, it is the duty of the court to adopt the construction 

which, without doing violence to the fair meaning of the statute, would 

render it valid.

7. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Nebraska Supreme Court Online Library

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

06/11/2021 08:12 AM CDT
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

IN RE ADOPTION OF YASMIN S.

Cite as 308 Neb. 771

Appeal from the County Court for Dixon County: Douglas 

L. Luebe, Judge. Reversed and remanded for further 

proceedings.

Matthew M. Munderloh, of Johnson & Mock, P.C., L.L.O., 

and Adam J. Sipple and Sara E. Rips, of ACLU of Nebraska, 

for appellants.

No appearance for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

A same-sex married couple sought to adopt a minor child. 

The county court determined that it lacked authority to permit 

adoption by a “wife and wife” and denied the request. But the 

plain language of the applicable statute, 1 which references “any 

adult person or persons” and the person’s “husband or wife,” 

allows for such an adoption. We reverse, and remand for further proceedings.

BACKGROUND

In 2008, Kelly H. and Maria V. married in California. They 

subsequently moved to Nebraska.

In 2017, Yasmin S. was born out of wedlock. Her biological 

mother—Maria’s sister—signed a relinquishment and consent 

to adoption. The putative father had abandoned Yasmin and 

failed to file a notice of objection to adoption and intent to 

obtain custody. Since Yasmin’s birth, she has lived in Kelly and 

Maria’s home.

In May 2020, Kelly and Maria filed a petition to adopt 

Yasmin. At a hearing, the county court raised a concern that 

1 Neb. Rev. Stat. § 43-101(1) (Reissue 2016).
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

IN RE ADOPTION OF YASMIN S.

Cite as 308 Neb. 771

the petition referenced “wife and wife.” The court subsequently denied the request “due to the court’s lack of authority 

to proceed.” The court observed that “wife” was not defined in 

statute and that a law dictionary defined the term as “‘a woman 

who has a lawful living husband.’”

Kelly and Maria timely appealed. They filed a petition to 

bypass review by the Nebraska Court of Appeals, asserting 

in part that the case “is one arguably ‘involving the federal 

or state constitutionality of a statute.’” Pursuant to Neb. Ct. 

R. App. P. § 2-109(E) (rev. 2014), Kelly and Maria served a 

copy of their brief and their petition to bypass on the Nebraska 

Attorney General. The Attorney General declined to file a brief 

in this appeal. We subsequently granted the petition to bypass.

ASSIGNMENTS OF ERROR

Kelly and Maria assign that the county court erred in determining that it lacked jurisdiction to permit a same-sex married 

couple to adopt a child and in interpreting § 43-101 in a way 

that violated due process and equal protection rights.

STANDARD OF REVIEW

[1] Determination of a jurisdictional issue which does not 

involve a factual dispute is a matter of law which requires an 

appellate court to reach its conclusions independent from those 

of a trial court. 2

[2] Statutory interpretation is a question of law, which an 

appellate court resolves independently of the trial court. 3

ANALYSIS

Adoption proceedings are statutory and were unknown to 

the common law. 4 Generally, statutes in derogation of the 

2 Egan v. County of Lancaster, ante p. 48, 952 N.W.2d 664 (2020).

3 Id.

4 See In re Adoption of Luke, 263 Neb. 365, 640 N.W.2d 374 (2002).
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IN RE ADOPTION OF YASMIN S.

Cite as 308 Neb. 771

common law are to be strictly construed. 5 Before setting forth 

the statute at the heart of this case, we recall principles of 

statutory interpretation.

[3-5] Rules regarding statutory interpretation are well 

known. Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous. 6 In construing a statute, a court 

must determine and give effect to the purpose and intent of 

the Legislature as ascertained from the entire language of the 

statute considered in its plain, ordinary, and popular sense. 7 It 

is not within the province of the courts to read a meaning into 

a statute that is not there or to read anything direct and plain 

out of a statute. 8

The focus of this appeal, § 43-101, addresses children eligible for adoption. As pertinent here, the statute provides that

any minor child may be adopted by any adult person or 

persons and any adult child may be adopted by the spouse 

of such child’s parent in the cases and subject to sections 

43-101 to 43-115, except that no person having a husband 

or wife may adopt a minor child unless the husband or 

wife joins in the petition therefor. If the husband or wife 

so joins in the petition therefor, the adoption shall be by 

them jointly, except that an adult husband or wife may 

adopt a child of the other spouse whether born in or out 

of wedlock. 9

Kelly and Maria argue that the statute’s plain language 

allows a same-sex married couple to adopt a minor child. 

5 Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018).

6 State ex rel. BH Media Group v. Frakes, 305 Neb. 780, 943 N.W.2d 231 

(2020).

7 Id.

8 Id.

9 § 43-101(1) (emphasis supplied).
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IN RE ADOPTION OF YASMIN S.

Cite as 308 Neb. 771

We agree. In the language of the statute, Yasmin is “any 

minor child,” while Kelly and Maria are “any adult person or 

persons.” 10 A wife is commonly understood to be “[a] married woman.” 11 Based on the understanding of that word in 

current usage, Kelly is a “person having a . . . wife.” 12 So, too, 

is Maria. Under § 43-101(1), “no person having a husband or 

wife may adopt a minor child unless the husband or wife joins 

in the petition therefor.” Here, the wife joined in the petition 

for adoption. The plain language of § 43-101(1) allows a samesex married couple to adopt.

The county court reasoned that definitions of “husband” 

and “wife” from when § 43-101 was “last enacted/amended 

by Nebraska’s Legislature” should control. It relied upon a 

proposition from a recent U.S. Supreme Court decision: “‘[I]t’s 

a “fundamental canon of statutory construction” that words 

generally should be “interpreted as taking their ordinary . . . 

meaning . . . at the time Congress enacted the statute.”’” 13 We 

assume without deciding that this proposition applies to the 

interpretation of a statute enacted by our Legislature. To demonstrate the meaning of the pertinent terms at the time of 

enactment, the county court cited a version of Black’s Law 

Dictionary which defined “wife” as “[a] married woman; a 

woman who has a lawful husband living” 14 and “husband” as 

“[a] married man; a man who has a lawful wife living.” 15

But using the definitions articulated by the county court 

does not lead to a different result. Section 43-101(1) permits 

10 See id.

11 “Wife,” Oxford English Dictionary Online, http://www.oed.com/view/

Entry/228941 (last visited Mar. 20, 2021).

12 See § 43-101(1).

13 New Prime Inc. v. Oliveira, ___ U.S. ___, 139 S. Ct. 532, 539, 202 L. Ed. 

2d 536 (2019).

14 Black’s Law Dictionary 1628 (8th ed. 2004).

15 Id. at 758.
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IN RE ADOPTION OF YASMIN S.

Cite as 308 Neb. 771

a minor child to “be adopted by any adult person or persons.” 

Kelly and Maria fit that criteria. The statute does not use the 

word “married.” The only caveat contained in the statute is 

that if the person had “a husband or wife,” the husband or wife 

had to join in the petition. 16 Under the county court’s definition of “wife,” neither Kelly nor Maria had a “lawful husband 

living.” And under the court’s definition of “husband,” neither 

was a “man.” In other words, when one applies the definitions of “wife” and “husband” employed by the county court, 

the statutory caveat simply does not apply. If the Legislature 

believes that the statutory language is somehow disrespectful 

to same-sex married couples, that body is free to amend the 

statute. 17 But whether one uses the current meanings of “husband” and “wife” or their respective meanings at the time of 

enactment, the statutory text permits Kelly and Maria to adopt 

a minor child.

[6] To the extent any doubt remains about whether a “wife 

and wife” may adopt, we apply a long-recognized principle 

of statutory construction. Where a statute is susceptible of 

two constructions, one of which renders it constitutional, 

and the other unconstitutional, it is the duty of the court to 

adopt the construction which, without doing violence to the 

fair meaning of the statute, would render it valid. 18 Reading 

§ 43-101 to permit adoption by a same-sex couple does not 

raise constitutional issues that may be elicited by a contrary 

interpretation. 19

16 § 43-101(1).

17 See In re Petition of Anonymous 5, 286 Neb. 640, 838 N.W.2d 226 (2013) 

(not province of court to rewrite statute).

18 Transport Workers of America v. Transit Auth. of City of Omaha, 205 Neb. 

26, 286 N.W.2d 102 (1979) (superseded by statute as stated in South Sioux 

City Ed. Assn. v. Dakota Cty. Sch. Dist., 278 Neb. 572, 772 N.W.2d 564 

(2009)).

19 See Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 

609 (2015).
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Nebraska Supreme Court Advance Sheets

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IN RE ADOPTION OF YASMIN S.

Cite as 308 Neb. 771

[7] Because we can resolve this appeal on statutory interpretation grounds, we need not address Kelly and Maria’s other 

argument. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy before it. 20

CONCLUSION

The plain language of § 43-101 permits a same-sex married 

couple to adopt a minor child. Accordingly, we reverse, and 

remand to the county court for further proceedings.

Reversed and remanded for 

further proceedings.

20 Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).