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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE ON BEHALF OF MIAH S. v. IAN K.

Cite as 306 Neb. 372

State of Nebraska on behalf of Miah S., a minor 

child, appellee, v. Ian K., appellee, and 

Aaron S., appellant.

___ N.W.2d ___

Filed July 2, 2020. No. S-19-937.

1. Statutes: Appeal and Error. The meaning and interpretation of statutes 

are questions of law for which an appellate court has an obligation to 

reach an independent conclusion irrespective of the decision made by 

the court below.

2. Paternity: Statutes. Paternity proceedings are purely statutory, and 

because such statutes modify the common law, they must be strictly 

construed.

3. Statutes: Appeal and Error. 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. Paternity: Statutes. An action to establish paternity is statutory in 

nature, and the authority to bring such action must be found in the 

statute.

5. Paternity. Read together, Neb. Rev. Stat. §§ 43-1411 and 43-1401(1) 

(Reissue 2016) authorize the State to bring an action to establish the 

paternity of a child born out of wedlock.

Appeal from the Separate Juvenile Court of Lancaster 

County: Reggie L. Ryder, Judge. Vacated and remanded with 

directions to dismiss.

Dalton W. Tietjen, of Tietjen, Simon & Boyle, for appellant.

Patrick Condon, Lancaster County Attorney, and Haley N. 

Messerschmidt for appellee State of Nebraska.

Nebraska Supreme Court Online Library

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

07/17/2020 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE ON BEHALF OF MIAH S. v. IAN K.

Cite as 306 Neb. 372

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

Papik, and Freudenberg, JJ.

Stacy, J.

In this case, the State filed a complaint seeking to disestablish the paternity of Aaron S. to a child born during his marriage to the child’s mother and to establish paternity in another 

man. The separate juvenile court of Lancaster County granted 

the requested relief, and Aaron appeals. Because we find the 

State was not statutorily authorized to bring the action, we 

vacate the order and remand the cause with directions to dismiss the State’s complaint.

FACTS

Cameo S. and Aaron S. were married on July 15, 2018. 

Approximately 10 months later, Cameo gave birth to a daughter. Aaron was present for the birth and was listed as the father 

on the child’s birth certificate. 1

Genetic testing performed a few months later showed 

Ian K. was the child’s biological father. Based on the test 

results, the State filed a complaint in the district court for 

Lancaster County seeking to establish Ian’s paternity. On the 

State’s motion, the action was transferred to the separate juvenile court, which already had jurisdiction over the child due 

to an abuse/neglect adjudication 2 involving Cameo but not 

Aaron. 3

1 See Neb. Rev. Stat. § 71-640.01 ((Reissue 2018) (when mother married at 

time of conception or birth, name of husband entered on birth certificate 

as child’s father unless court establishes paternity in another or mother and 

husband execute affidavits attesting husband is not father).

2 See Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016).

3 See, § 43-247(10) (juvenile court has jurisdiction over “[t]he paternity or 

custody determination for a child over which the juvenile court already has 

jurisdiction”); Neb. Rev. Stat. § 43-1411.01 (Cum. Supp. 2018) (county 

court or separate juvenile court may determine paternity if already has 

jurisdiction over child).
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Nebraska Supreme Court Advance Sheets

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STATE ON BEHALF OF MIAH S. v. IAN K.

Cite as 306 Neb. 372

State’s Paternity Action

The State’s complaint alleged that during the marriage of 

Cameo and Aaron, a child was born, but the child’s biological father was Ian, not Aaron. The State prayed for an order 

“finding that [Aaron] is not the biological father of said minor 

child [and] that [Ian] is the biological father of said child.” It is 

undisputed that at the time the child was born, and at the time 

of trial in this matter, Cameo and Aaron were married.

At trial, a caseworker from the Department of Health and 

Human Services (DHHS) testified the child became a ward of 

the State immediately after birth, and the child had never lived 

with Cameo or Aaron. The DHHS caseworker testified that 

Aaron had always expressed a desire to be the child’s father 

and had visited the child regularly while she was in foster care. 

According to the caseworker, Aaron stopped visiting for a time 

after he learned of the genetic test results, but he had resumed 

visitation with the child by the time of trial.

The caseworker testified that Ian had no contact with the 

child and had “strenuously advocated” to be allowed to relinquish whatever rights he may be found to have with respect to 

the child. The caseworker did not consider either Aaron or Ian 

an “ideal father,” but she testified that if Aaron remained the 

legal father after the hearing, DHHS would provide him serv

ices to address “whatever issues” he may be found to have.

Aaron testified he wanted to remain the child’s father and 

was willing to participate in any services DHHS could offer 

him. He expressly stated he was willing to take full responsibility for the child, including financial responsibility. Aaron 

testified that he no longer wished to be married to Cameo and 

had commenced divorce proceedings that morning. Our appellate record does not contain any other information regarding 

the status of the dissolution proceeding.

At the conclusion of the evidence, the State asked the court 

to “dis-establish” Aaron as the child’s legal father and to 

establish Ian as the child’s father so he could effectively relinquish his rights. The State acknowledged that Aaron wanted to 
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

STATE ON BEHALF OF MIAH S. v. IAN K.

Cite as 306 Neb. 372

remain the child’s father, but it suggested without elaboration 

that Aaron’s goal was to “circumvent the adoption process.”

Ian’s counsel asked the court to dismiss the State’s paternity 

action, arguing that despite the results of the genetic testing, 

Ian had not signed an acknowledgment of paternity and Aaron 

remained the child’s legal father. Aaron’s counsel agreed, arguing that at the time of trial, Aaron was the child’s legal father 

and wanted to remain so.

Court’s Order

The separate juvenile court entered an order which purported to disestablish Aaron as the child’s father and to establish Ian as the child’s biological father. As to Aaron, the court 

found:

While he was the legal father of [the child] at her birth, 

the evidence clearly and convincingly shows that, when 

considering her age [and] her previous relationship with 

[Aaron] there is no significant evidence that [the child] 

could benefit from establishing paternity with [Aaron 

and] it is in the best interest of [the child] to disestablish 

[Aaron] as her legal father.

And as to Ian, the court found “he is also not a very appealing 

choice to be the legal and/or biological father” of the child. 

But the court found the genetic test results clearly established 

Ian as the child’s biological father, and it granted the State the 

relief sought in its complaint.

Aaron timely appealed, and we moved the case to our docket 

on our own motion.

ASSIGNMENTS OF ERROR

Aaron assigns, summarized, that the juvenile court erred 

in disestablishing his paternity and in establishing Ian as the 

child’s father.

STANDARD OF REVIEW

[1] The meaning and interpretation of statutes are questions 

of law for which an appellate court has an obligation to reach 
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306 Nebraska Reports

STATE ON BEHALF OF MIAH S. v. IAN K.

Cite as 306 Neb. 372

an independent conclusion irrespective of the decision made by 

the court below. 4

ANALYSIS

Under Nebraska common law, now embodied in Neb. Rev. 

Stat. § 42-377 (Supp. 2019), children born to parties in a marriage relationship “shall be legitimate unless otherwise decreed 

by the court.” 5 In this case, it is undisputed that Cameo and 

Aaron were married when the child was born. Neither Cameo, 

Aaron, nor Ian sought to delegitimize the child or to challenge 

Aaron’s status as the child’s legal father. Instead, the State filed 

the operative complaint expressly seeking to “disestablish” 

Aaron as the child’s father and to establish Ian as the biological father.

The question presented here is a narrow one: Is the State 

statutorily authorized to bring a paternity action seeking to 

delegitimize a child born during a marriage relationship in 

order to establish biological paternity in another man?

[2,3] To answer this question, we examine the statutes that 

govern actions to establish and disestablish paternity. In doing 

so, we remember that paternity proceedings are purely statutory, and because such statutes modify the common law, they 

must be strictly construed. 6 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. 7

Civil proceedings to establish the paternity of a child are 

governed by Neb. Rev. Stat. §§ 43-1411 (Reissue 2016) and 

43-1411.01 (Cum. Supp. 2018). Section 43-1411 sets out the 

circumstances under which a paternity action may be instituted 

4 See State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).

5 See, also, Neb. Rev. Stat. § 43-1406(2) (Reissue 2016) (“[a] child whose 

parents marry is legitimate”).

6 See State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 

(2014).

7 In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020).
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STATE ON BEHALF OF MIAH S. v. IAN K.

Cite as 306 Neb. 372

and identifies who may institute such an action. Those authorized to bring an action to establish paternity under § 43-1411 

include the mother or the alleged father of a child, the guardian or next friend of a child, and the State. Section 43-1411.01 

dictates in which courts an action to establish paternity may 

be filed.

Civil proceedings to disestablish paternity are governed by 

Neb. Rev. Stat. § 43-1412.01 (Reissue 2016), which provides 

in relevant part:

An individual may file a complaint for relief and the 

court may set aside a final judgment, court order, administrative order, obligation to pay child support, or any 

other legal determination of paternity if a scientifically 

reliable genetic test performed in accordance with sections 43-1401 to 43-1418 establishes the exclusion of the 

individual named as a father in the legal determination.

In Alisha C. v. Jeremy C., 8 we held that the plain language of 

§ 43-1412.01 is not limited to setting aside legal determinations of paternity regarding children born out of wedlock, but 

is broad enough to also encompass disestablishing legal determinations regarding children born during a marriage.

In the instant case, we requested supplemental briefing 

addressing whether the State is an “individual” authorized to 

bring a civil proceeding to disestablish a child’s paternity under 

§ 43-1412.01. Having received and considered that briefing, it 

is notable that the parties agree the State is not an “individual” who may file a complaint to disestablish paternity under 

§ 43-1412.01.

But the State, in its supplemental briefing, contends it did not 

bring an action to disestablish paternity under § 43-1412.01, 

but, rather, it initiated a proceeding to establish paternity 

under § 43-1411. The State argues it is one of several parties expressly authorized under that statute to institute such 

an action.

8 Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).
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Nebraska Supreme Court Advance Sheets

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STATE ON BEHALF OF MIAH S. v. IAN K.

Cite as 306 Neb. 372

It is true that § 43-1411 authorizes the State to bring a 

civil proceeding “to establish the paternity of a child.” But 

the definition of “child” as used in § 43-1411 is governed by 

Neb. Rev. Stat. § 43-1401 (Reissue 2016), which provides in 

relevant part:

For purposes of sections 43-1401 to 43-1418:

(1) Child shall mean a child under the age of eighteen 

years born out of wedlock;

(2) Child born out of wedlock shall mean a child 

whose parents were not married to each other at the time 

of its birth, except that a child shall not be considered 

as born out of wedlock if its parents were married at the 

time of its conception but divorced at the time of its birth. 

The definition of legitimacy or illegitimacy for other purposes shall not be affected by the provisions of [sections 

43-1401 to 43-1418].

The statutory definitions of the terms “child” and “child born 

out of wedlock” were enacted in 1994 and have remained 

unchanged since that time. 9 Because the State relies exclusively on § 43-1411 as the statutory authority for commencing 

this action, we find these statutory definitions are dispositive.

[4,5] An action to establish paternity is statutory in nature, 

and the authority to bring such action must be found in the 

statute. 10 Read together, §§ 43-1411 and 43-1401(1) authorize 

the State to bring an action to establish the paternity of a child 

born out of wedlock. The child in this case was not born out 

of wedlock; she was born during the marriage of Cameo and 

Aaron. Consequently, when the State filed this action, the child 

was the legitimate daughter of Cameo and Aaron and was not 

a child on whose behalf the State was authorized to initiate a 

civil proceeding to establish paternity under § 43-1411. To the 

extent our 1998 opinion in State on behalf of Hopkins v. Batt 11

9 See 1994 Neb. Laws, L.B. 1224.

10 See Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016).

11 State on behalf of Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 425 (1998).
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STATE ON BEHALF OF MIAH S. v. IAN K.

Cite as 306 Neb. 372

held otherwise, we expressly overrule it as contrary to the plain 

language of the governing statutes.

The State’s lack of statutory authority to bring this paternity 

action under § 43-1411 requires that we vacate the separate 

juvenile court’s order in all respects and remand the cause with 

directions to dismiss the State’s complaint.

CONCLUSION

Because the child at issue in this case was not born out of 

wedlock and was instead the legitimate child of Aaron, the 

State lacked statutory authority to institute an action under 

§ 43-1411 to establish the child’s paternity. The order of the 

separate juvenile court is vacated, and the cause is remanded 

with directions to dismiss the State’s complaint.

Vacated and remanded with 

directions to dismiss.