Monty S. & Teresa S. v. Jason W. & Rebecca W.

     Nebraska Advance Sheets
1048	290 NEBRASKA REPORTS



                 Monty S. and Teresa S., appellees, v.
                 Jason W. and R ebecca W., appellants.
                                    ___ N.W.2d ___

                         Filed May 29, 2015.     No. S-14-879.

 1.	 Habeas Corpus: Child Custody: Appeal and Error. A decision in a habeas cor-
      pus case involving custody of a child is reviewed by an appellate court de novo
      on the record.
 2.	 Parental Rights: Adoption: Proof. The burden is on the natural parent chal-
      lenging the validity of a relinquishment of a child for adoption to prove that the
      relinquishment was not voluntarily given.
 3.	 Parental Rights: Adoption. In the absence of threats, coercion, fraud, or duress,
      a properly executed relinquishment of parental rights and consent to adoption
      signed by a natural parent knowingly, intelligently, and voluntarily is valid.
 4.	 Adoption. In a private adoption, the child is relinquished directly into the hands
      of the prospective adoptive parents without interference by the state or a pri-
      vate agency.
 5.	 Parental Rights. 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.
  6.	 ____. A valid relinquishment of parental rights is irrevocable.
  7.	 ____. The only right retained by the natural parents who have signed relinquish-
      ments of parental rights is the right to commence an action seeking to be consid-
      ered as a prospective parent if the best interests of the child so dictate.
 8.	 ____. Where the relinquishment of rights by a natural parent is found to be
      invalid for any reason, a best interests hearing is held.
 9.	 ____. A change of attitude subsequent to signing a relinquishment of parental
      rights is insufficient to invalidate the relinquishment.
10.	 Parental Rights: Adoption. After a decree of adoption has been entered in a
      private adoption case, the natural parents of an adopted child shall be relieved of
      all parental duties and responsibilities for the child and shall have no rights over
      the child.
11.	 Adoption. Adoption was unknown to the common law and is a creature
      of statute.
12.	 ____. Adoptions are permissible only when done in accordance with statute.

  Appeal from the District Court for Richardson County:
Daniel E. Bryan, Jr., Judge. Affirmed.

  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.
                   Nebraska Advance Sheets
	          MONTY S. & TERESA S. v. JASON W. & REBECCA W.	1049
	                       Cite as 290 Neb. 1048

  Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
    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 bio-
logical relatives. Teresa and Monty “felt sorry” for Rebecca
and discussed the possibility that Teresa might serve as a sur-
rogate 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 fol-
lowing 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 rela-
tionship would exist.
   Teresa testified that in her view, an “open” adoption was
one in which the “adoptive parents [were] open to allow-
ing the biological parents to be a part of his life and that his
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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 conduct-
ing 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 consent-
ing 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 fail-
ure to present the nonconsent adoption forms prior to signing
the relinquishments.
   The district court rejected all of Teresa and Monty’s alle-
gations. Nevertheless, relying upon McCormick v. State,1 the
district court invalidated the relinquishments, concluding that
the parties’ plan for an “open” adoption invalidated the relin-
quishments as conditioned upon the retention of some paren-
tal rights.
   Following a best interests hearing, custody of the child was
placed with Teresa and Monty. Rebecca and Jason appeal.

 1	
      McCormick v. State, 218 Neb. 338, 354 N.W.2d 160 (1984).
                      Nebraska Advance Sheets
	             MONTY S. & TERESA S. v. JASON W. & REBECCA W.	1051
	                          Cite as 290 Neb. 1048

                  ASSIGNMENTS OF ERROR
   On appeal, Rebecca and Jason assign, reordered, that the
district court erred in (1) excluding evidence of postrelinquish-
ment visits by Teresa and Monty and why those visits were
discontinued and (2) holding that the consents were condi-
tioned upon the retention of parental rights and were there-
fore invalid.

                   STANDARD OF REVIEW
   [1-3] A decision in a habeas corpus case involving custody
of a child is reviewed by an appellate court de novo on the
record.2 The burden is on the natural parent challenging the
validity of a relinquishment of a child for adoption to prove
that the relinquishment was not voluntarily given.3 In the
absence of threats, coercion, fraud, or duress, a properly exe-
cuted relinquishment of parental rights and consent to adoption
signed by a natural parent knowingly, intelligently, and volun-
tarily is valid.4

                            ANALYSIS
Evidentiary Objections.
   We first turn to Rebecca and Jason’s contention that the
district court erred in not admitting certain evidence of the rea-
sons why Rebecca and Jason ceased to allow Teresa and Monty
visitation with the child. That evidence generally showed that
Rebecca and Jason initially had the full intent of allowing
Teresa and Monty to be a part of the child’s life until Teresa’s
visits became so frequent that they began to interfere with
Rebecca and Jason’s relationships with the child.
   Assuming without deciding that this evidence was relevant
to Rebecca and Jason’s defense that their actions did not
amount to fraud or misrepresentation, and thus should have
been admitted, we find any such error to be harmless. In fact,
the district court did not find any fraud or misrepresenta-
tion in the signing of the relinquishments. Rather, it found

 2	
      Brett M. v. Vesely, 276 Neb. 765, 757 N.W.2d 360 (2008).
 3	
      Hohndorf v. Watson, 240 Neb. 368, 482 N.W.2d 241 (1992).
 4	
      Id.
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that the open adoption agreement itself acted as coercion and
invalidated the relinquishments. Because Rebecca and Jason
prevailed on the fraud and misrepresentation issues, they suf-
fered no prejudice by the failure of the district court to admit
this evidence.
   There is no merit to this assignment of error.
Validity of Relinquishments.
   [4] We now turn to whether the relinquishments in this case
were invalid. This case presents a private adoption. In this
situation, the child is relinquished directly into the hands of
the prospective adoptive parents without interference by the
state or a private agency.5
   [5-7] 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.6 A valid relinquish-
ment is irrevocable.7 The only right retained by the natural
parents is the “right to commence an action seeking . . . to be
considered as a prospective parent if the best interests of the
child so dictate. The natural parent’s rights are no longer supe-
rior to those of the prospective adoptive family.”8
   [8] Where the relinquishment of rights by a natural parent is
found to be invalid for any reason, a best interests hearing is
nevertheless held: “The court shall not simply return the child
to the natural parent upon a finding that the relinquishment
was not a valid instrument.”9
   [9] Such relinquishments are generally upheld. We have
held repeatedly that a change of attitude subsequent to sign-
ing a relinquishment is insufficient to invalidate the relin-
quishment.10 Rather, as we noted above, in the absence of
threats, coercion, fraud, or duress, a properly executed relin-
quishment of parental rights and consent to adoption signed

 5	
      Yopp v. Batt, 237 Neb. 779, 467 N.W.2d 868 (1991).
 6	
      Id.
 7	
      Id.
 8	
      Id. at 791, 467 N.W.2d at 877.
 9	
      Id. at 791-92, 467 N.W.2d at 878.
10	
      Yopp v. Batt, supra note 5.
                       Nebraska Advance Sheets
	              MONTY S. & TERESA S. v. JASON W. & REBECCA W.	1053
	                           Cite as 290 Neb. 1048

by a natural parent knowingly, intelligently, and voluntarily
is valid.11
   [10] Neb. Rev. Stat. § 43-111 (Reissue 2008) provides that
after a decree of adoption has been entered in a private adop-
tion case, the natural parents of an adopted child shall be
relieved of all parental duties and responsibilities for the child
and shall have no rights over the child.
   In this case, the district court explicitly found that there were
no threats, fraud, or duress involved in the execution of Teresa
and Monty’s relinquishments. But the district court, relying on
this court’s decision in McCormick v. State,12 concluded that
the relinquishments were conditioned upon the retention of
some parental rights and were therefore invalid.
   McCormick involved the parental rights of Richard and Joan
McCormick to their son. The State had filed for termination of
those rights. Just prior to the final hearing on the State’s motion
to terminate, a meeting took place between the McCormicks,
their counsel, the guardian ad litem, and their caseworker. It
was explained to the McCormicks that if they signed a relin-
quishment of their parental rights, there was a possibility that
an “open” adoption could be arranged if cooperative adoptive
parents were found. This idea was originally suggested by the
caseworker. The McCormicks were told by their counsel that it
was likely the court would terminate their parental rights if the
hearing were held.
   The McCormicks signed the relinquishments. Despite the
conversation regarding the “open” adoption, the McCormicks
were not permitted visitation with their son after they signed
the relinquishments. The McCormicks filed a motion for a writ
of habeas corpus, which was denied.
   The McCormicks appealed. The court found that the
McCormicks’ relinquishments were coerced by the prom-
ise of the open adoption. We noted that “[a] relinquish-
ment conditioned upon the retention of some parental rights
is invalid.”13

11	
      Id.
12	
      McCormick v. State, supra note 1.
13	
      Id. at 344, 354 N.W.2d at 163.
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   McCormick was decided in 1984. By 1988, the Legislature
had passed 1988 Neb. Laws, L.B. 301, which provided for
exchange-of-information contracts in cases involving children
in temporary foster care. The legislative intent states:
         The Legislature finds that there are children in tem-
      porary foster care situations who would benefit from the
      stability of adoption. It is the intent of the Legislature
      that such situations be accommodated through the use
      of adoptions involving exchange-of-information contracts
      between the department and the adoptive or biological
      parent or parents.14
An exchange-of-information contract is defined by statute as
a “two-year, renewable obligation, voluntarily agreed to and
signed by both the adoptive and biological parent or parents
as well as the department.”15 And Neb. Rev. Stat. § 43-158
(Reissue 2008) provides:
         When the department determines that an adoption
      involving exchange of information would serve a child’s
      best interests, it may enter into agreements with the child’s
      proposed adoptive parent or parents for the exchange
      of information. The nature of the information promised
      to be provided shall be specified in an exchange-of-
      information contract and may include, but shall not be
      limited to, letters by the adoptive parent or parents at
      specified intervals providing information regarding the
      child’s development or photographs of the child at speci-
      fied intervals. . . . Nothing in [these] sections . . . shall be
      interpreted to preclude or allow court-ordered parenting
      time, visitation, or other access with the child and the
      biological parent or parents.
   Neb. Rev. Stat. § 43-160 (Reissue 2008), also enacted by
L.B. 301, seems directed at this court’s decision in McCormick:
“The existence of any agreement or agreements of the kind
specified in section 43-158 shall not operate to impair the valid-
ity of any relinquishment or any decree of adoption entered by
a court of the State of Nebraska.”

14	
      Neb. Rev. Stat. § 43-155 (Reissue 2008).
15	
      Neb. Rev. Stat. § 43-156 (Reissue 2008).
                      Nebraska Advance Sheets
	             MONTY S. & TERESA S. v. JASON W. & REBECCA W.	1055
	                          Cite as 290 Neb. 1048

   By 1993, the exchange-of-information contract had been
supplemented with the communication or contact agreement
set forth in Neb. Rev. Stat. § 43-162 (Reissue 2008). That sec-
tion provides:
         The prospective adoptive parent or parents and the
      birth parent or parents of a prospective adoptee may enter
      into an agreement regarding communication or contact
      after the adoption between or among the prospective
      adoptee and his or her birth parent or parents if the pro-
      spective adoptee is in the custody of the Department of
      Health and Human Services. Any such agreement shall
      not be enforceable unless approved by the court pursuant
      to section 43-163.
While there is not a single definition of an “open” adoption, in
our view, it is clear that these statutorily-provided-for agree-
ments would fit within the general understanding of such
an adoption.
   The enactment of the exchange-of-information contracts
and communication or contact agreements shows us that
the Legislature clearly responded to this court’s decision in
McCormick. However, it did so in a limited way: as is noted
above, these contracts are available only in foster care situ-
ations. Not included in these statutes or covered by other
statutes are private adoptions such as the one presented by
these facts.
   [11,12] Adoption was unknown to the common law and is
a creature of statute.16 As such, adoptions are permissible only
when done in accordance with statute. While the Legislature
responded to the McCormick holding in the foster-adopt situ-
ation, thus legitimizing the practice in that context, it has left
McCormick untouched insofar as it applies to private adop-
tions. Thus, the central holdings of McCormick—that the effect
of an open adoption acts as the retention of some parental
rights and, further, that the retention of some parental rights
renders a relinquishment invalid—remain intact.
   In this case, the record is clear, and the parties do not dis-
pute, that an open adoption was planned. But this retention

16	
      Wulf v. Ibsen, 184 Neb. 314, 167 N.W.2d 181 (1969).
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of parental rights, however slight, is sufficient to invalidate
Teresa’s and Monty’s relinquishments.
   We are not unsympathetic to the plight of adoptive and bio-
logical parents as they navigate through the highly emotional
process of adoption. And it may be that in some situations,
benefit could result from open arrangements such as those
endorsed by the Legislature in the foster-adopt situation. At
the same time, it is not this court’s place to make such policy
judgments. Until the Legislature acts to approve of these open
adoption arrangements in a private adoption context, this court
will not recognize them and will instead continue to hold that
relinquishments signed with the promise of such an open adop-
tion are invalid.
   Rebecca and Jason’s second assignment of error is with-
out merit.
                       CONCLUSION
  The decision of the district court is affirmed.
                                                    Affirmed.
  McCormack, J., participating on briefs.