Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Maria T. v. Jeremy S.

Supreme Court of Nebraska

July 20, 2018

Maria T., appellant,
v.
Jeremy S. and Jamie S., appellees.

         1. Habeas Corpus: Child Custody: Appeal and Error. A decision in a habeas corpus case involving the custody of a child is reviewed by an appellate court de novo on the record.

         2. Habeas Corpus: Appeal and Error. Whether the allegations in an application for a writ of habeas corpus are sufficient to warrant discharge is a matter of law that an appellate court reviews de novo.

         3. Habeas Corpus: Constitutional Law. The writ of habeas corpus derives from common law and is guaranteed by the Nebraska Constitution.

         4. Habeas Corpus. The function of the application for a writ of habeas corpus is to procure the issuance of the writ, and ordinarily when this is done, the application is functus officio for procedural purposes.

         5. Habeas Corpus: Courts. Courts are cautioned in habeas proceedings to follow the traditional procedure illustrated by the habeas corpus statutes rather than make up their own procedure.

         6. Habeas Corpus: Child Custody. The writ of habeas corpus has been extended to, and may be used in, controversies regarding the custody of infants.

         7. __:__. In the case of a writ of habeas corpus sued out for the detention of a child, the law is concerned not so much about the illegality of the detention as about the welfare of the child.

         8. __:__. When habeas corpus is used in child custody cases, such proceedings are governed by considerations of expediency and equity and should not be bound by technical rules of practice.

         9. Habeas Corpus. In a habeas corpus proceeding, before a hearing on the merits, the person to whom the writ is directed makes a response to the writ and not, strictly speaking, to the relator's application.

         10. Habeas Corpus: Child Custody. A habeas corpus proceeding involving the custody of a child is a proceeding in rem, in which the res is the child and its custody.

         [300 Neb. 564] 11. Habeas Corpus: Child Custody: Jurisdiction. After the court's jurisdiction has been invoked by a petition for habeas corpus seeking the custody of children, the children become wards of the court and their welfare lies in the hands of the court.

         12. Habeas Corpus. The proper method for attacking the sufficiency of the application for a writ of habeas corpus is by a motion to quash the writ.

         13. Habeas Corpus: Child Custody. The procedure set forth in Neb. Rev. Stat. §§ 29-2801 through 28-2824 (Reissue 2016 & Supp. 2017) applies to child custody habeas proceedings.

         14. Habeas Corpus: Pleadings. The motion to quash admits all ultimate facts well pleaded in a relator's application, as distinguished from conclusions of law therein, and when thus tested it is ascertained that the allegations thereof are not sufficient to warrant discharge, the motion should be sustained and the writ of habeas corpus dissolved or quashed.

         15. Adoption: Parent and Child: Parental Rights. Agreements in adoption proceedings allowing contact between an adopted child and the child's biological parents require court approval to be enforceable, and even if approved, noncompliance may not be the basis for setting aside a particular adoption, or revoking a relinquishment to the Department of Health and Human Services.

         16. Statutes: Legislature: Intent. A court gives statutory language its plain and ordinary meaning and will not look beyond the statute to determine the legislative intent when the words are plain, direct, and unambiguous.

         17. Adoption: Statutes: Legislature: Intent. There is no ambiguity in the Legislature's stated intent to encompass within Neb. Rev. Stat. § 43-163 (Reissue 2016) all written or oral agreements regarding communication or contact after an adoption, when the prospective adoptee is in the custody of the Department of Health and Human Services.

         18. Appeal and Error. Appellate courts do not generally consider arguments and theories raised for the first time on appeal.

         19. Constitutional Law: Appeal and Error. Except in the most unusual cases, for a question of constitutionality to be considered on appeal, it must have been properly raised in the trial court. If not so raised, it will be considered to have been waived.

         20. Constitutional Law: Rules of the Supreme Court: Statutes. Strict compliance with Neb. Ct. R. App. R § 2-109(E) (rev. 2014) is necessary whenever a litigant challenges the constitutionality of a statute, regardless of how that constitutional challenge may be characterized.

          Appeal from the District Court for Lancaster County: Susan I. Strong, Judge.

         [300 Neb. 565] David V. Chipman, of Monz6n, Guerra & Associates, for appellant.

          Steffanie J. Garner Kotik, of Kotik & McClure Law, for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Dobrovolny, District Judge.

          Dobrovolny, District Judge.

         NATURE OF CASE

         The district court dismissed on the pleadings a biological mother's petition for habeas corpus challenging the adoptive parents' custody over the child. The mother alleged in the petition that her relinquishment of parental rights to the Department of Health and Human Services (DHHS) and consent to adoption had been obtained through coercion, false pretenses, or fraud. She attached a communication and consent agreement to the petition and alleged that the biological parents had failed to allow her to have contact with the child. The district court concluded the petition did not state a claim, because Neb. Rev. Stat. § 43-164 (Reissue 2016) provides that failure to comply with a court-approved communication or contact agreement shall not be grounds for setting aside or revoking the relinquishment, the consent to adoption, or the adoption decree. We affirm.

         BACKGROUND

         Petition

         Maria T. filed a petition for writ of habeas corpus on May 2, 2017, naming Jeremy S. and Jamie S. as respondents. She alleged that she was the biological mother of a minor child, born in 2012, who was unlawfully restrained by Jeremy and Jamie.

         In paragraph IV, Maria alleged that the restraint was illegal, because her "consent to adoption and/or voluntary relinquishment was obtained through coercion and/or false pretenses [300 Neb. 566] and/or fraud, which invalidates such relinquishment and/or consent."

         In paragraph V, Maria alleged that her relinquishment was conditioned upon the retention of some "parental rights and any relinquishment or consent given by [Maria] is therefore invalid." In this paragraph, she stated that she was attaching a '"Communication and Contact Agreement'" signed by the parties.

         In paragraph VI, Maria alleged that Jeremy and Jamie had failed to allow her to have contact with the child after having made promises and representations that they would.

         Maria asked that the court find the relinquishment was invalid and revoked. She asked that the court take custody of the child and determine whether the child's best interests would be served by returning the child to Maria.

         The relinquishment was not attached to the petition, but Maria did attach the agreement signed by Maria, Jeremy, and Jamie.

         Though the petition did not set forth whether the child was in the custody of DHHS at the time of the relinquishment, the agreement set forth that Jeremy and Jamie were the child's foster parents and that they would be entering into a foster parent adoption after Maria relinquished her parental rights to DHHS.

         The agreement set forth that Jeremy and Jamie were to communicate with Maria regarding the child's welfare and allow periodic contact between Maria and the child. However, the agreement also set forth that the parties understood that "this agreement is subject to the approval of the court having jurisdiction over the adoption proceedings."

         Further, in the agreement, the parties set forth their understanding that

the failure to comply with the terms of the order as pursuant to Section 43-163 shall not be grounds for setting aside an adoption decree, for revocation of a written consent for adoption after the consent has been approved by the court having jurisdiction over the adoption proceedings, [300 Neb. 567] or for revocation or relinquishment of parental rights after the relinquishment has been accepted in writing by [DHHS] as provided in Section 43-106.01.

         Instead, according to the agreement, any order pursuant to Neb. Rev. Stat. § 43-163 (Reissue 2016) could be enforced by civil litigation. Neb. Rev. Stat. § 43-106.01 (Reissue 2016) provides:

When a child shall have been relinquished by written instrument, as provided by sections 43-104 and 43-106, to [DHHS] or to a licensed child placement agency and the agency has, in writing, accepted full responsibility for the child, the person so relinquishing shall be relieved of all parental duties toward and all responsibilities for such child and have no rights over such child. Nothing contained in this section shall impair the right of such child to inherit.

         The petition did not specifically allege whether the court having jurisdiction over the child's adoption had approved ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.