In Re Adoption of Yasmin S.

Caselaw Number
308 Neb. 771
Filed On


This case is an appeal out of the Dixon County Court and is reversed and remanded for further proceedings.

Kelly H. and Maria V. were married in California in 2008 and moved to Nebraska after their marriage. In 2017 Maria’s sister had a baby, Yasmin S., out of wedlock. Yasmin’s mother relinquished her rights to Yasmin and signed a consent to adopt. Yasmin’s father had abandoned her and failed to file objection to adoption and intent to obtain custody. Yasmin has lived in the home of Kelly and Maria since birth.

In 2020 Kelly and Maria filed a petition to adopt Yasmin. The county court denied the petition on the grounds that the county court did not have the authority to proceed. This decision was based on the petition referencing “wife and wife”. The court observed that the term wife was not described in statute, but cited a law dictionary that defined wife as “a woman who has a lawful living husband”.

Kelly and Maria timely appealed the decision of the court that it lacked jurisdiction to permit a same-sex marriage and appealed on the ground that the court interpreted § 43-101 in a way that violated due process and equal protection. Kelly and Maria also petitioned to bypass the Court of Appeals because the case arguably involves federal or state constitutionality. The petition to bypass was granted.

Jurisdictional issues which do not involve a factual dispute are a matter of law which requires an appellate court to reach its conclusions independent from those of the trial court. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

The court visited the principles behind interpreting statutes before addressing the statute in question. 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. 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. 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. State ex rel. BH Media Group v. Frakes, 305 Neb. 780

The focus of this appeal § 43-101, addresses children eligible for adoption. The court highlights the pertinent sections of the statute in italics: “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, 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”. 

The Supreme Court found that Yasmine is “any child” and that Kelly and Maria are “any adult person or persons”. The court also clarified that the common understanding of the word wife is a “married woman”. Kelly is “a person having a wife” and so is Maria. In this case the wife joined in the petition for adoption. The plain language of § 43-101 allows for a same-sex married couple to adopt.

The county court argued that the definition of “husband” and “wife” should be the definition of the words at the time § 43-101 was enacted or last amended. They cite a recent U.S. Supreme Court decision: “It’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”. New Prime Inc. v. Oliveira 139 S. Ct. 532. The county court depended on the definition of wife from Black’s Law Dictionary “a married woman; a woman who has a lawful husband living” and husband “a married man; a man who has a lawful wife living”. Black’s Law Dictionary 1628 (8th ed. 2004).

If the definition of wife suggested by the county court is used, the outcome does not change. § 43-101 states “any adult person or persons”, Kelly and Maria fit this criteria. The statute contains the caveat that if the person has a “husband or a wife” then the husband or wife must join in the petition for adoption. Based on the county court’s definition a wife has a lawful husband living. Neither Kelly nor Maria are a man so under the county courts definition of wife and husband the statutory caveat does not apply.

Where a statute could be read to have two constructions, one that is constitutional and one that is not, the court has to adopt the construction that renders the statute valid, as long as it does not do damage to the fair meaning of the statute. The Supreme Court clarified that reading § 43-101 to permit a same-sex couple to adopt does not raise any constitutional issues that may be produced by a different interpretation.

The Supreme Court did not address Kelly and Maria’s other argument as it was able to resolve the appeal on statutory interpretation grounds.

The plain language of § 43-101 permits a same-sex married couple to adopt a minor child. Reversed and remanded for further proceedings.