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Jesse B. v. Tylee H.

Supreme Court of Nebraska

June 24, 2016

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.

         1. Actions: Judicial Notice. A court may judicially notice adjudicative facts, which are not subject to reasonable dispute, at any stage of the proceeding.

         2. 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 proceedings.

         3. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual dispute presents a question of law.

         4. Statutes. The meaning and interpretation of a statute present questions of law.

         5. Constitutional Law: Statutes. The constitutionality of a statute is a question of law.

         6. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusions.

         7. Jurisdiction: Appeal and Error. Before deciding the merits of an appeal, an appellate court must determine if it has jurisdiction.

         8. __:__. If the court from which a party takes an appeal lacks jurisdiction, then the appellate court acquires no jurisdiction.

         9. __:__. 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.

         10. 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 of wedlock.

         [293 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.

         12. 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.

         13. Courts: Jurisdiction: Child Custody. District courts have inherent equity jurisdiction to resolve custody disputes.

         14. 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.

         15. Courts: Adoption. A parent can challenge the legality of an adoption by objecting to the proceeding in county court.

         16. 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 habeas proceeding.

         17. Courts: Jurisdiction. Where courts have concurrent jurisdiction, the first to assume jurisdiction retains it to the exclusion of the other.

         18. 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 out.

         19. Actions: Courts: Jurisdiction. Where an action is pending in two courts, the court first acquiring jurisdiction will hold jurisdiction to the exclusion of the other.

         20. Actions: Standing: Time. A court determines standing as it existed when a plaintiff commenced an action.

         21. 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.

         22. 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 Nebraska's statutes.

         23. 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 judgment.

         24. 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.

         25. Adoption: Parent and Child. Adoption terminates the parent-child relationship.

         26. 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).

         27. 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.

         28. 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.

         29. 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.

         30. 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.

         31. 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 the relinquishment.

         32. 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.

         [293 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.

         34. 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.

         35. Constitutional Law: Parent and Child. The best interests standard is subject to the overriding recognition that the relationship between parent and child is constitutionally protected.

         36. 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.

         37. 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.

         38. 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.

         Appeal from the District Court for Lancaster County: Jodi Nelson, Judge.

          George T. Babcock, of Law Offices of Evelyn N. Babcock, and Jennifer Gaughan, of Legal Aid of Nebraska, for appellant.

          Shawn D. Renner and Susan K. Sapp, of Cline, Williams, Wright, Johnson & Oldfather, L.L.R, for appellee Tylee H.


         [293 Neb. 977] CONNOLLY, J.

         I. SUMMARY

         This appeal is the companion case to In re Adoption of Jaelyn B[1] 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, [2] 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.

         We 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.


         The 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.[3] In interwoven and interdependent cases, we may examine our own records and take judicial notice of the proceedings.[4]

         In 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.

         In 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.

         In June 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.

         1. Jesse's Complaint

         Jesse 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.[5] 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.

         Jesse 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.

         First, 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 paternity determination.

         Second, 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.

         Third, 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.

         Fourth, 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.

         2. Court Postpones Deciding Jesse's Claims at Tylee's Request

         In 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 ...

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