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.
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.
Habeas Corpus: Constitutional Law. The writ
of habeas corpus derives from common law and is guaranteed by
the Nebraska Constitution.
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.
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.
Habeas Corpus: Child Custody. The writ of
habeas corpus has been extended to, and may be used in,
controversies regarding the custody of infants.
__:__. 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
__:__. 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
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.
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
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.
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.
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.
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.
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.
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.
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
Appeal and Error. Appellate courts do not
generally consider arguments and theories raised for the
first time on appeal.
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.
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.
from the District Court for Lancaster County: Susan I.
Neb. 565] David V. Chipman, of Monz6n, Guerra &
Associates, for appellant.
Steffanie J. Garner Kotik, of Kotik & McClure Law, for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Dobrovolny, District Judge.
Dobrovolny, District Judge.
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.
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.
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."
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.
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.
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.
relinquishment was not attached to the petition, but Maria
did attach the agreement signed by Maria, Jeremy, and Jamie.
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.
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."
in the agreement, the parties set forth their understanding
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.
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)
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.
petition did not specifically allege whether the court having
jurisdiction over the child's adoption had approved ...