In re Adoption of Yasmin S.

I
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/26/2021 08:08 AM CDT




                                                       - 771 -
                               Nebraska Supreme Court Advance Sheets
                                        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 juris-
                    dictional issue which does not involve a factual dispute is a matter of
                    law which requires an appellate court to reach its conclusions indepen-
                    dent 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.
                                   - 772 -
            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 fur-
ther 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).
                                  - 773 -
            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 subse-
quently 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 deter-
mining 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).
                                 - 774 -
            Nebraska Supreme Court Advance Sheets
                     308 Nebraska Reports
                     IN RE ADOPTION OF YASMIN S.
                           Cite as 

308 Neb. 771

c­ ommon 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 interpreta-
 tion 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 eli-
 gible 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).
                                     - 775 -
             Nebraska Supreme Court Advance Sheets
                      308 Nebraska Reports
                       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] mar-
ried 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 same-
 sex 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 dem-
 onstrate 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.
– 776 –

             Nebraska Supreme Court Advance Sheets
                      308 Nebraska Reports
                       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 defini-
tion 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 defini-
tions 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 “hus-
band” 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).
                                    - 777 -
             Nebraska Supreme Court Advance Sheets
                      308 Nebraska Reports
                       IN RE ADOPTION OF YASMIN S.
                             Cite as 

308 Neb. 771

   [7] Because we can resolve this appeal on statutory interpre-
tation 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 contro-
versy 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).

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