Jesse B., individually and as Guardian and next friend of Jaelyn B., a minor child, appellant,
Tylee H. and Douglas J. Peterson, Attorney General of the State of Nebraska, appellees.
Actions: Judicial Notice. A court may
judicially notice adjudicative facts, which are not subject
to reasonable dispute, at any stage of the proceeding.
Actions: Judicial Notice: Appeal and Error.
In interwoven and interdependent cases, an appellate court
may examine its own records and take judicial notice of the
Judgments: Jurisdiction. A jurisdictional
issue that does not involve a factual dispute presents a
question of law.
Statutes. The meaning and interpretation of
a statute present questions of law.
Constitutional Law: Statutes. The
constitutionality of a statute is a question of law.
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court resolves the questions
independently of the lower court's conclusions.
Jurisdiction: Appeal and Error. Before
deciding the merits of an appeal, an appellate court must
determine if it has jurisdiction.
__:__. If the court from which a party takes an appeal lacks
jurisdiction, then the appellate court acquires no
__:__. An appellate court has the power to determine whether
it has jurisdiction over an appeal and to correct
jurisdictional issues even if it does not have jurisdiction
to reach the merits.
Habeas Corpus: Parental Rights: Child
Custody. Habeas corpus is an appropriate proceeding
to test the legality of custody and best interests of a
minor, including the rights of fathers of children born out
Neb. 974] 11. Constitutional Law: Habeas Corpus:
Child Custody. Habeas corpus is a civil remedy
constitutionally available in a proceeding to challenge and
test the legality of a person's detention, imprisonment,
or custodial deprivation of the person's liberty. It is
an appropriate proceeding to test the legality of custody and
best interests of a minor, when the party having physical
custody of the minor has not acquired custody under a court
order or decree.
Habeas Corpus: Jurisdiction. Because the
privilege of the writ of habeas corpus is part of
Nebraska's organic law, district courts have general
jurisdiction over these proceedings.
Courts: Jurisdiction: Child Custody.
District courts have inherent equity jurisdiction to resolve
Constitutional Law: Legislature: Courts:
Jurisdiction. The Legislature cannot limit or take
away the broad and general jurisdiction of the district
courts, as conferred by the Nebraska Constitution. But it can
give county courts concurrent original jurisdiction over the
same subject matter.
Courts: Adoption. A parent can challenge the
legality of an adoption by objecting to the proceeding in
Legislature: Courts: Jurisdiction: Adoption: Habeas
Corpus. Despite the Legislature's grant of
exclusive jurisdiction over adoption matters to county or
juvenile courts, when a parent claims his or her child is
being illegally detained for an adoption, a district court
has original overlapping jurisdiction over the matter in a
Courts: Jurisdiction. Where courts have
concurrent jurisdiction, the first to assume jurisdiction
retains it to the exclusion of the other.
Courts: Jurisdiction: Child Custody: Habeas
Corpus. When a district court acquires jurisdiction
over a habeas proceeding involving the permanent custody of a
child, no other court can acquire jurisdiction over the
matter until after the first court's order is carried
Actions: Courts: Jurisdiction. Where an
action is pending in two courts, the court first acquiring
jurisdiction will hold jurisdiction to the exclusion of the
Actions: Standing: Time. A court determines
standing as it existed when a plaintiff commenced an action.
Paternity: Child Custody: Time. A paternity
acknowledgment in Nebraska operates as a legal finding of
paternity after the 60-day rescission period has expired. At
that point, the acknowledged father is the child's legal
father-not a presumed father. And he has the same right to
seek custody as the child's biological mother, even if
genetic testing shows he is not the biological father.
Parental Rights: Public Policy: States: Appeal and
Error. It is not contrary to Nebraska's public
policy to recognize an acknowledged [293 Neb. 975]
father's parental rights under another state's
statutes when the Nebraska Supreme Court has recognized an
acknowledged father's parental rights under
Constitutional Law: Foreign Judgments: Jurisdiction:
States. The Full Faith and Credit Clause requires
states to give the same effect to a judgment in the forum
state that it has in the state where the court rendered the
Constitutional Law: Foreign Judgments: States:
Paternity: Adoption: Parental Rights. Neb. Rev.
Stat. § 43-1406(1) (Reissue 2008) extends the
constitutional requirement of giving full faith and credit to
a sister state's paternity determination through a
voluntary acknowledgment. So whether a paternity
acknowledgment made in a sister state requires a legal
father's consent to an adoption depends upon whether the
laws of the sister state confer that right.
Adoption: Parent and Child. Adoption
terminates the parent-child relationship.
Courts: Jurisdiction: Adoption: Parental
Rights. To terminate a father's rights through
an adoption procedure, the consent of the adjudicated father
of a child born out of wedlock is required for the adoption
to proceed unless the Nebraska court having jurisdiction over
the custody of the child determines otherwise, pursuant to
Neb. Rev. Stat. § 43-104.22 (Reissue 2008).
Adoption: States: Statutes. Neb. Rev. Stat.
§ 43-104.22(11) (Reissue 2008) does not apply to an
acknowledged father with the right to consent to an adoption
under the laws of a sister state.
Judgments: Collateral Attack: Jurisdiction.
For judgments, collateral attacks on previous proceedings are
impermissible unless the attack is grounded upon the
court's lack of jurisdiction over the parties or subject
matter. Only a void judgment is subject to collateral attack.
Judgments: Collateral Attack: Paternity. The
collateral attack rules that apply to judgments also apply to
a voluntary paternity acknowledgement that has the same
effect as a judgment.
Adoption. In a private adoption, the child
is relinquished directly into the hands of the prospective
adoptive parent or parents without interference by the state
or a private agency.
Parental Rights. A valid relinquishment of
parental rights is irrevocable, and a natural parent who
relinquishes his or her rights to a child by a valid written
instrument gives up all rights to the child at the time of
Parental Rights: Adoption: Appeal and Error.
A natural parent's knowing, intelligent, and voluntary
relinquishment of a child for adoption is valid. An appellate
court will generally uphold relinquishments absent evidence
of threats, coercion, fraud, or duress.
Neb. 976] 33. Parental Rights: Adoption.
Under Neb. Rev. Stat. § 43-111 (Reissue 2008), it is the
adoption itself which terminates the parental rights, and
until the adoption is granted, the parental rights are not
terminated. When a parent's relinquishment of his or her
child is invalid or void, § 43-111 governs when the
parent's rights are terminated.
Parental Rights: Adoption: Child Custody: Habeas
Corpus. A parent's fundamental rights apply in a
habeas corpus proceeding to regain custody of his or her
child who is the subject of an adoption proceeding if the
parent's relinquishment is invalid or void.
Constitutional Law: Parent and Child. The
best interests standard is subject to the overriding
recognition that the relationship between parent and child is
Child Custody: Parental Rights. A
parent's superior right to custody over a stranger to the
parent-child relationship protects both the parent's and
the child's fundamental interest in maintaining it.
Constitutional Law: Due Process: Parent and
Child. The Due Process Clause precludes the State
from breaking apart a family over a parent's objections
absent a powerful countervailing interest.
Parental Rights: Adoption: Child Custody: Habeas
Corpus. The parental preference doctrine applies in
a habeas proceeding to obtain custody of a child. A court in
a habeas proceeding may not deprive a parent of custody of
his or her minor child unless a party affirmatively shows
that the parent is unfit or has forfeited the right to
perform his or her parental duties. This reasoning applies to
a habeas proceeding challenging an adoption when a
parent's parental rights remain intact because a court
determines that the relinquishment is invalid or is void.
from the District Court for Lancaster County: Jodi Nelson,
T. Babcock, of Law Offices of Evelyn N. Babcock, and Jennifer
Gaughan, of Legal Aid of Nebraska, for appellant.
D. Renner and Susan K. Sapp, of Cline, Williams, Wright,
Johnson & Oldfather, L.L.R, for appellee Tylee H.
HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, and CASSEL,
JJ., and PIRTLE and RIEDMANN, Judges.
Neb. 977] CONNOLLY, J.
appeal is the companion case to In re Adoption of Jaelyn
B In both cases, the appellant, Jesse B.,
claimed that his child, Jaelyn B., could not be adopted
without his consent because he was her legal father. In this
appeal, he specifically challenged in the district court the
constitutionality of several Nebraska adoption statutes,
including statutes that permitted Jaelyn's adoption
without his consent. And he claimed that Nebraska must give
full faith and credit to Ohio's paternity determination.
The district court postponed deciding his claims until after
the county court had issued an adoption decree. Afterward, it
concluded that it did not have jurisdiction to grant habeas
relief. It determined that Jesse lost standing to challenge
Jaelyn's adoption after the county court found that he
was not her biological father.
reverse. Without addressing Jesse's constitutional
challenges, we conclude that under Neb. Rev. Stat. 43-1406(1)
(Reissue 2008), the district court erred in failing to
determine that Nebraska had to give full faith and credit to
Ohio's determination of Jesse's paternity. Under Ohio
law, Jesse has the right to withhold consent to the adoption
of Jaelyn. So, the district court erred in failing to
determine that the county court could not order an adoption
when Jesse had not consented. We reverse the judgment and
remand the cause with instructions for further proceedings on
issues relevant to Jaelyn's custody.
facts and procedural history of this appeal are fully set out
in In re Adoption of Jaelyn B. We summarize them
here. In doing so, we apply two judicial notice principles. A
court [293 Neb. 978] may judicially notice adjudicative
facts, which are not subject to reasonable dispute, at any
stage of the proceeding. In interwoven and interdependent cases,
we may examine our own records and take judicial notice of
April 2013, Jaelyn was born in Ohio. The next day, the
mother, Heather K., and Jesse signed in the presence of a
notary an "Acknowledgment of Paternity Affidavit."
They affirmed that Jesse was Jaelyn's father. A notice on
the form explained that its purpose "is to acknowledge
the legal existence of a father and child relationship
through voluntary paternity establishment." The notice
explained that Ohio statutes limited the signatories'
right to rescind an acknowledgment. The signatories could
seek an administrative rescission within 60 days. They could
also seek a judicial rescission on limited grounds, but only
after the 60-day period and within 1 year of the
acknowledgment's becoming final under specified Ohio
statutes. Alternatively, a potential signatory could ask for
genetic testing at no charge. On June 3, Ohio's office of
vital statistics recorded Heather and Jesse as Jaelyn's
mother and father on her birth certificate.
January 2014, Jesse received adoption paperwork from
Heather's Nebraska attorney, Kelly Tollefsen. The letter
stated that Heather had identified Jesse as a possible
biological father and that Heather intended to relinquish
Jaelyn for an adoption. It informed him that if he intended
to claim paternity and seek custody, he should obtain his own
attorney, or he could sign the enclosed forms for
relinquishing Jaelyn and consenting to her adoption. Jesse
could not afford an attorney and did not obtain legal
assistance in Nebraska until later that spring.
2014, Jesse filed a complaint in Lancaster County District
Court for a writ of habeas corpus and a declaratory [293 Neb.
979] judgment. On July 22, Jesse filed a complaint for
custody in the Ohio Court of Common Pleas. Eight days later,
on July 30, Jesse filed an objection to Jaelyn's adoption
and requested notice of any adoption proceeding for Jaelyn in
Douglas County Court. Later, in August 2014, Tylee H., the
prospective adoptive parent, filed a petition to adopt Jaelyn
in Douglas County Court.
filed an amended complaint in September 2014 after he
discovered that the prospective adoptive parent was Tylee.
The named respondents were John Doe, a possible unknown
adoptive parent; Tollefsen; Tylee; and Tylee's attorney.
He also named the Attorney General as a respondent because he
challenged the constitutionality of Nebraska
statutes. Jesse alleged that Tollefsen would not
disclose where the adoption proceeding would be filed, but
that she did disclose the name of the attorney representing
Tylee. Tylee's attorney also would not disclose where the
adoption proceeding would be filed.
asked the district court to declare the following statutes
unconstitutional because they violated his constitutional due
process and equal protection rights: Sections 43-104, 43,
104.01 to 43-104.05, 43-104.12, 43-104.13, 43-104.17,
43-104.22, and 43.104.25. Jesse asserted 11 claims, which we
condense to four sets of allegations regarding his statutory
and constitutional claims.
Jesse alleged that under Ohio law, an acknowledgment of
paternity is a legal finding of paternity, and that neither
he nor Heather had rescinded the acknowledgment. He claimed
that the U.S. Constitution and § 43-1406 required
Nebraska to give full faith and credit to Ohio's
Jesse claimed that he was Jaelyn's legal father under
Nebraska law. He asserted that under the law of both [293
Neb. 980] states, the respondents-Heather, Tylee, and their
separate attorneys-had unlawfully restrained Jaelyn of her
liberty and kept her from her rightful custodian.
Jesse claimed that he had an established familial
relationship with Jaelyn that was constitutionally protected.
He alleged that the respondents knew or should have known of
this relationship and that the notice he received for a
putative father was insufficient and violated his substantive
and procedural due process rights.
Jesse alleged two equal protection claims resting on marital
status and gender: (1) The notice and protections he would
have received if he were married were inferior to those he
received as an unmarried legal father; and (2) the notice
that he received was inferior to the notice that is required
for a legal mother.
Court Postpones Deciding Jesse's Claims at Tylee's
September 2014, the district court issued a writ of habeas
corpus that ordered the respondents to bring Jaelyn to court
and respond to these allegations. The respondents moved to
dismiss the complaint for lack of subject matter
jurisdiction. In October, at Jesse's request, the court
dismissed John Doe and the attorneys as respondents. The
respondents had also moved to continue the hearing on their
motion to dismiss Jesse's complaint until after the
county court decided whether to allow an adoption. They
alleged that a continuance would promote judicial efficiency
and save them ...