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Monty S. v. Jason W.

Supreme Court of Nebraska

May 29, 2015

MONTY S. AND TERESA S., APPELLEES,
v.
JASON W. AND REBECCA W., APPELLANTS

Page 485

[Copyrighted Material Omitted]

Page 486

Appeal from the District Court for Richardson County: DANIEL E. BRYAN, JR., Judge.

Jeanette Stull and Justin J. Knight, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., for appellants.

Steven J. Mercure and Jessica D. Meyer, of Nestor & Mercure, for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MILLER-LERMAN, and CASSEL, JJ. MCCORMACK, J., participating on briefs.

OPINION

Page 487

[290 Neb. 1049] Heavican, C.J.

INTRODUCTION

Teresa S. gave birth to an infant son in July 2013. Two days later, Teresa and Monty S., Teresa's husband and the child's biological father, each signed a consent and relinquishment, indicating that each gave up any parental rights to the child and further that they consented to the child's adoption by Jason W. and Rebecca W.

Teresa and Monty subsequently filed a motion for habeas corpus seeking return of the child. The couple alleged that the consents and relinquishments they signed were invalid. Following a trial, the district court concluded, on grounds not argued by Teresa and Monty, that their consents and relinquishments were invalid. Rebecca and Jason appeal. We affirm.

BACKGROUND

The parties in this case were friends. Rebecca was unable to have children, and a foster child that had been placed with Rebecca and Jason had been moved to a placement with biological relatives. Teresa and Monty " felt sorry" for Rebecca and discussed the possibility that Teresa might serve as a surrogate for the couple. Rebecca and Jason ultimately agreed, and it was decided that Teresa and Monty would conceive a child and, at the time of its birth, give that child to Rebecca and Jason for private placement adoption.

The parties agree that from the beginning, and certainly throughout Teresa's pregnancy and the days immediately following the child's birth, the intent was that Teresa and Monty would be a part of the child's life. The parties mostly agree that no discussions beyond this general agreement took place; it was an understanding, and not a detailed plan, that a relationship would exist.

Teresa testified that in her view, an " open" adoption was one in which the " adoptive parents [were] open to allowing the biological parents to be a part of his life and that his Nebraska Advance Sheets [290 Neb. 1050] records would never be sealed." The record suggests that this was the general definition of the term as understood by all the parties.

Monty testified that he and Teresa were not informed that " open" adoptions were essentially unenforceable in Nebraska. This was confirmed by the testimony of the attorney conducting the meeting, as well as by Rebecca and Jason. Teresa and Monty also testified that had they known that they would not be able to maintain contact with the child, they would not have signed the relinquishment forms.

Teresa gave birth to the child in July 2013. The child went to Rebecca and Jason's home from the hospital. Two days after the child's birth, both couples and the child rode together to a meeting at the office of Rebecca and Jason's attorney. During that meeting, Teresa and Monty each signed separate documents relinquishing their parental rights and consenting to the adoption by Rebecca and Jason. At this meeting, Rebecca tore up the nonconsent forms presented to Teresa and Monty and announced that they were unnecessary because the adoption was to be " open." Nonconsent forms are signed by biological parents to signify the intent that adoption records be sealed. Where the forms are not signed, such records are not sealed.

On May 12, 2014, Teresa and Monty filed a petition for habeas corpus, seeking return of the child. Teresa and Monty alleged that their consents and relinquishments were invalid for a number of reasons, including fraud, duress, and the failure to present ...


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