Maria T. v. Jeremy S.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/03/2018 12:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
MARIA T. v. JEREMY S.
Cite as 300 Neb. 563
M aria T., appellant, v. Jeremy S.
and Jamie S., appellees.
___ N.W.2d ___
Filed July 20, 2018. No. S-17-925.
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 dis-
charge 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 illegal-
ity 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 involv-
ing the custody of a child is a proceeding in rem, in which the res is the
child and its custody.
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MARIA T. v. JEREMY S.
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11. Habeas Corpus: Child Custody: Jurisdiction. After the court’s juris-
diction 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 con-
clusions 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 adop-
tion 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 cus-
tody of the Department of Health and Human Services.
18. Appeal and Error. Appellate courts do not generally consider argu-
ments 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. P. § 2-109(E) (rev. 2014) is necessary
whenever a litigant challenges the constitutionality of a statute, regard-
less of how that constitutional challenge may be characterized.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
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MARIA T. v. JEREMY S.
Cite as 300 Neb. 563
David V. Chipman, of Monzón, 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 adop-
tive 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 con-
sent 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 dis-
trict 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 relinquish-
ment was obtained through coercion and/or false pretenses
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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 attach-
ing 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 com-
municate 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 juris-
diction over the adoption proceedings.”
Further, in the agreement, the parties set forth their under-
standing that
the failure to comply with the terms of the order as pursu-
ant 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,
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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 con-
tained 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 the
communication and contact agreement.
Hearing on Motion to Dismiss
Jeremy and Jamie moved to dismiss for failure to state a
claim. Their motion is not in the record. At the hearing on
the motion to dismiss, Jeremy and Jamie offered three exhib-
its into evidence. Maria objected on the ground that it was a
hearing on a motion to dismiss “and you’re not supposed to
consider matters outside the pleading, otherwise it becomes a
summary judgment.” She did not challenge the authenticity of
the documents in the exhibits or object on any other grounds.
Jeremy and Jamie’s attorney responded that she believed the
evidence was appropriately offered in support of her motion to
dismiss, because the exhibits contained documents recited in
Maria’s petition.
The court asked Maria if she would “like a time to submit
evidence in this matter.” Maria said she would not. But the
court did not explicitly state it had changed the status of the
motion. The parties proceeded with argument without the
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court’s ruling on the offer of exhibits and apparently under
the assumption that the court was considering a motion
to dismiss.
Jeremy and Jamie’s attorney indicated her understanding
that the allegations in Maria’s petition were based on Jeremy
and Jamie’s alleged failure to comply with the agreement. At
no point did Maria’s attorney respond that her allegations of
“coercion and/or false pretenses and/or fraud” were based on
anything other than Jeremy and Jamie’s failure to comply with
the agreement. Maria’s attorney did not ask the court for leave
to amend the petition.
At the conclusion of the hearing, the court received the
exhibits into evidence. Exhibit 1 consists of Maria’s relinquish-
ment to DHHS, her consent form, and DHHS’ acceptance of
her relinquishment. Exhibit 1 reflects that Maria voluntarily
relinquished to DHHS her parental rights over the child on
June 12, 2015. Exhibit 2 is the agreement that was attached to
the petition. Exhibit 3 is the bill of exceptions for the adoption
hearing. The bill of exceptions reflects that on May 13, 2016,
the separate juvenile court approved the adoption of the child
by Jeremy and Jamie, but explicitly did not approve the com-
munication and contact agreement for the reason that it was not
in the child’s best interests.
District Court’s Order
The district court dismissed the petition for failure to state a
claim and alternatively addressed granting summary judgment
in favor of Jeremy and Jamie.
In the court’s analysis on the motion to dismiss, the court
stated that it did not consider any of the exhibits. But the
court considered the attached agreement as part of the allega-
tions of the petition. The agreement, the court said, confirmed
that the child was adopted by way of a foster parent adop-
tion wherein Maria unconditionally relinquished her parental
rights to DHHS.
The court concluded that Maria had failed to state a claim,
because she had failed to allege that the agreement had been
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approved by the court. Alternatively, after citing to both
§ 43-164 and Neb. Rev. Stat. § 43-166(6) (Reissue 2016), the
court concluded that “neither the statutes in effect at the time,
nor the case law, afford [Maria] the opportunity to allege fraud,
duress or coercion on the basis of the Communication and
Contact Agreement entered into between the parties.”
Next, the court set forth an analysis regarding “if this
Court were to treat [Jeremy and Jamie’s] motion as a motion
for summary judgment rather than a motion to dismiss.” The
court found no genuine issue as to the fact that the court never
approved the agreement. Therefore, the court reasoned, the
agreement could not provide any basis for Maria’s allegation
that the relinquishment was procured through fraud, duress,
and coercion. Even if the agreement had been approved, the
court stated that as a matter of law, Jeremy and Jamie’s failure
to comply with the agreement’s terms could not be used as
a basis for invalidating the relinquishment and setting aside
the adoption.
In its conclusion, the court set forth in the order that it was
sustaining Jeremy and Jamie’s motion to dismiss. The court
ordered the case dismissed with prejudice. Maria appeals.
ASSIGNMENTS OF ERROR
Maria assigns that the district court erred in (1) granting
Jeremy and Jamie’s motion to dismiss and (2) finding in the
alternative that Jeremy and Jamie were entitled to summary
judgment.
STANDARD OF REVIEW
[1] A decision in a habeas corpus case involving custody of a
child is reviewed by an appellate court de novo on the record.1
[2] 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.2
1
Monty S. v. Jason W., 290 Neb. 1048, 863 N.W.2d 484 (2015).
2
See State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016).
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ANALYSIS
As a threshold matter, we clarify the procedural rules appli-
cable to an application for a writ of habeas corpus in a child
custody matter. For the reasons that follow, we conclude that
the court and the parties did not follow the correct procedure
for a habeas proceeding. Nevertheless, the court did not err in
its ultimate determination that Maria failed to allege facts that
would establish that Jeremy and Jamie were not entitled to
sole custody of Maria’s biological child.
[3] The writ of habeas corpus derives from common law3
and is guaranteed by the Nebraska Constitution in article I,
§ 8, which provides that “[t]he privilege of the writ of habeas
corpus shall not be suspended.” Neb. Rev. Stat. §§ 29-2801
through 29-2824 (Reissue 2016 & Supp. 2017) set forth cer-
tain procedures for a habeas corpus proceeding. The statutory
procedure set forth in §§ 29-2801 through 29-2824 appears to
have largely codified the traditional procedure under common
law for the writ.4 We have said that the Nebraska Constitution
provides for the remedy of habeas corpus, while the pro-
cedure for the writ is governed by statute.5 It is a special
civil proceeding providing a summary remedy to persons ille-
gally detained.6
The first step in order to initiate a habeas proceeding is
for “any person,” who “is or shall be confined in any jail
. . . or shall be unlawfully deprived of his or her liberty,” to
“make application, either by him or herself or by any per-
son on his or her behalf.”7 If, “by oath or affirmation,” it
appears in the application that “the person so imprisoned or
3
See, e.g., In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d
840 (1944).
4
See, e.g., Brandon L. Garrett, Habeas Corpus and Due Process, 98
Cornell L. Rev. 47 (2012).
5
Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016).
6
Id.
7
§ 29-2801.
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detained is imprisoned or detained without any legal authority
. . . it shall be [the judge’s] duty forthwith to allow a writ of
habeas corpus.”8
Before anything else, the court must determine, sua sponte
and based on the allegations in the application, if the writ
should issue.9 We have explained that if the relator shows by
the facts alleged in the application for the writ that the relator
is not entitled to relief, then the writ should be denied and the
application dismissed, and that order may be appealed.10 In
contrast, when the relator sets forth facts which, if true, would
entitle the relator to discharge, the writ is a matter of right
and the relator should be produced before the court.11 Habeas
corpus is a Latin term that, translated literally, means “‘“that
you have the body,”’”12 and the writ commands that the person
holding the body of the person allegedly illegally detained pro-
duce the body on the day specified and submit to and receive
whatever the court shall consider in the relator’s behalf.13
Thus, pursuant to §§ 29-2802 and 29-2803, when a judge
issues the writ, it must be obeyed, or resistance thereto made
in the regular manner.14 The person detained and named in the
writ must be brought before the court on the day specified,
and while the hearing and final disposition are pending, the
person allegedly illegally detained will be subject to a court
order for safekeeping or detention, as the nature of the case
8
Id.
9
See Hennings v. Chandler, 229 Ill. 2d 18, 890 N.E.2d 920, 322 Ill. Dec. 1
(2008) (and discussion of cases therein).
10
See In re Application of Tail, Tail v. Olson, supra note 3. See, also, e.g.,
Johnson v. Gage, 290 Neb. 136, 858 N.W.2d 837 (2015).
11
In re Application of Dunn, 150 Neb. 669, 35 N.W.2d 673 (1949).
12
Sanders v. Frakes, supra note 5, 295 Neb. at 379, 888 N.W.2d at 519.
13
See, e.g., Click v. Click, 98 W. Va. 419, 127 S.E.2d 194 (1925); Black’s
Law Dictionary 825 (10th ed. 2014).
14
See Nebraska Children’s Home Society v. State, 57 Neb. 765, 78 N.W. 267
(1899).
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may require.15 “Neither ministerial officer nor private citizen
can be permitted to ignore its mandate because he [or she]
may think the judge allowed it on insufficient grounds.”16
Section 29-2817 describes that before the hearing on the
underlying merits, the person to whom the writ is directed
shall file a “return,” explaining whether he or she has the
relator under his or her “custody or power, or under restraint”
and the authority for such custody, power, or restraint. Under
§ 29-2819, the “return” is treated differently depending upon
whether the person detained is in custody under any warrant
or commitment in pursuance of law or is instead restrained
of liberty by any alleged private authority. In the case of
an alleged private authority, “the return of the writ shall be
considered only as a plea of the facts therein set forth, and
the party claiming the custody shall be held to make proof of
such facts.”17
[4] The habeas statutes do not describe by what means,
if any, the respondent may challenge the sufficiency of the
relator’s application. But we have held that before filing a
response, the respondent may challenge the sufficiency of the
statements in the application of the relator by filing a motion
to quash or to “dissolve” the writ.18 This is consistent with tra-
ditional common-law habeas corpus procedure.19 The function
of the application is to procure the issuance of the writ, and
15
See §§ 29-2802 and 29-2822. See, also, § 29-2806.
16
Nebraska Children’s Home Society v. State, supra note 14, 57 Neb. at 770,
78 N.W. at 269.
17
§ 29-2819.
18
See Sedlacek v. Greenholtz, 152 Neb. 386, 388, 41 N.W.2d 154, 156
(1950). See, also, Case v. State, 177 Neb. 404, 129 N.W.2d 107 (1964),
quoting Sedlacek v. Hann, 156 Neb. 340, 56 N.W.2d 138 (1952), vacated
on other grounds 381 U.S. 336, 85 S. Ct. 1486, 14 L. Ed. 2d 422 (1965);
In re Application of Dunn, supra note 11.
19
See, Kennedy v. Walker, 135 Conn. 262, 63 A.2d 589 (1948); Com. ex
rel. Margiotti, Aplnt. v. U. Tr. Co. et al., 327 Pa. 497, 194 A. 661 (1937);
Garrett, supra note 4.
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ordinarily when this is done, the application is functus officio
for procedural purposes.20
[5] As such, when the proper procedure is followed, the
application has served its purpose by obtaining the writ and,
by the time the respondent is on notice, the application is
no longer in effect such that it could be subject to a motion
to dismiss for failure to state a claim. For this reason, we
have said that a demurrer is not a motion usually associated
with writs of habeas corpus.21 Courts are cautioned in habeas
proceedings to follow the traditional procedure illustrated
by the habeas corpus statutes rather than make up their own
procedure.22
[6-8] The traditional procedure described above applies
equally to child custody habeas proceedings. Since 1890,23
we have recognized, “‘“[T]he writ of habeas corpus has been
extended to, and may be used in, controversies regarding the
custody of infants.”’”24 This extension occurred under the
English common law before the establishment of our state.25
In the case of a writ of habeas corpus sued out for the deten-
tion of a child, the law is concerned not so much about the
illegality of the detention as about the welfare of the child.26
20
See In re Application of Tail, Tail v. Olson, supra note 3.
21
See Rehbein v. Clarke, 257 Neb. 406, 598 N.W.2d 39 (1999).
22
See O’Neal v. State, 290 Neb. 943, 863 N.W.2d 162 (2015) (Cassel, J.,
concurring).
23
See Giles v. Giles, 30 Neb. 624, 46 N.W. 916 (1890).
24
State ex rel. Cochrane v. Blanco, 177 Neb. 149, 152, 128 N.W.2d 615, 617
(1964); Lung v. Frandsen, 155 Neb. 255, 51 N.W.2d 623 (1952); Hanson
v. Hanson, 150 Neb. 337, 34 N.W.2d 388 (1948).
25
See, e.g., Sarah Abramowicz, Note, English Child Custody Law, 1660-
1839: The Origins of Judicial Intervention in Paternal Custody, 99
Colum. L. Rev. 1344 (1999); Eric M. Freedman, Habeas Corpus in Three
Dimensions, Dimension I: Habeas Corpus as a Common Law Writ, 46
Harv. C.R.-C.L.L. Rev. 591 (2011).
26
See Christopherson v. Christopherson, 177 Neb. 414, 129 N.W.2d 113
(1964).
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Further, we have repeatedly recognized, as was acknowl-
edged under common law,27 that 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.28 But while there may
be some distinctions in child custody habeas proceedings
from prisoner habeas proceedings as to the treatment of the
underlying merits, it does not follow that the traditional writ
procedures outlined in our habeas statutes do not govern
applications for writs of habeas corpus when child custody
is involved.
[9-11] In In re Application of Tail, Tail v. Olson,29 a pris-
oner habeas case, we considered the nature of habeas corpus
proceedings, both involving prisoners and child custody. We
cited to §§ 29-2802 and 29-2817, and explained that 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. In In re Application of Tail, Tail, we
observed that we previously held a habeas corpus proceed-
ing involving the custody of a child is a proceeding in rem,
in which the res is the child and its custody.30 Once the writ
issues, “[a]fter 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.”31
27
See Annot., 4 A.L.R. 3d 1277, § 1[c] (1965).
28
McCormick v. State, 218 Neb. 338, 354 N.W.2d 160 (1984); Walker v.
Gehring, 172 Neb. 398, 109 N.W.2d 724 (1961); State ex rel. Hamilton
v. Boiler, 159 Neb. 458, 67 N.W.2d 426 (1954); Lung v. Frandsen, supra
note 24; Hanson v. Hanson, supra note 24.
29
See In re Application of Tail, Tail v. Olson, supra note 3, citing Terry v.
State, 77 Neb. 612, 110 N.W. 733 (1906).
30
Id.
31
Osterholt v. Osterholt, 173 Neb. 683, 685, 114 N.W.2d 734, 736 (1962).
See, also, Hanson v. Hanson, supra note 24.
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[12] In Nebraska Children’s Home Society v. State,32 a
child custody habeas case, we again cited to our habeas stat-
utes, to what is now § 29-2804. And we applied the principle
that the proper method for attacking the sufficiency of the
application for a writ of habeas corpus is by a motion to
quash the writ.33 Several other child custody habeas cases in
Nebraska appear to have followed the traditional writ proce-
dure set forth in the habeas statutes, albeit without citing to
the statutory scheme.34
We recognize that our case law concerning child custody
habeas proceedings has not always been consistent. For the
most part, our cases have failed to cite to §§ 29-2801 through
29-2824.35 Furthermore, our child custody habeas case law
appears to have oftentimes treated the application for a writ of
habeas corpus as if it were a petition setting forth a cause of
action, to which the respondents would file an answer, with the
32
Nebraska Children’s Home Society v. State, supra note 14.
33
Id.
34
See, Reynolds v. Green, 232 Neb. 60, 439 N.W.2d 486 (1989), overruled
on other grounds, Gomez v. Savage, 254 Neb. 836, 580 N.W.2d 523
(1998); Walker v. Gehring, supra note 28; State v. Porter, 78 Neb. 811,
112 N.W. 286 (1907); Terry v. Johnson, 73 Neb. 653, 103 N.W. 319
(1905); Nebraska Children’s Home Society v. State, supra note 14; Janet
K. v. Kevin B., 5 Neb. Ct. App. 169, 556 N.W.2d 270 (1996).
35
See, e.g., Brett M. v. Vesely, 276 Neb. 765, 757 N.W.2d 360 (2008);
Gomez v. Savage, supra note 34; Uhing v. Uhing, 241 Neb. 368, 488
N.W.2d 366 (1992); L.G.P. v. Nebraska Dept. of Soc. Servs., 239 Neb.
644, 477 N.W.2d 571 (1991); Friedrichsen v. Koehn, 216 Neb. 628,
344 N.W.2d 672 (1984); Marcus v. Huffman, 187 Neb. 798, 194 N.W.2d
221 (1972); Hausman v. Shields, 184 Neb. 88, 165 N.W.2d 581 (1969);
Gray v. Hartman, 181 Neb. 590, 150 N.W.2d 120 (1967); State ex rel.
Cochrane v. Blanco, supra note 24; Osterholt v. Osterholt, supra note 31;
Lakey v. Gudgel, 158 Neb. 116, 62 N.W.2d 525 (1954); Barnes v. Morash,
156 Neb. 721, 57 N.W.2d 783 (1953); Lung v. Frandsen, supra note 24;
Hanson v. Hanson, supra note 24; In re Application of Schwartzkopf, 149
Neb. 460, 31 N.W.2d 294 (1948); State v. Bryant, 95 Neb. 129, 145 N.W.
266 (1914); Clarke v. Lyon, 82 Neb. 625, 118 N.W. 472 (1908); Norval v.
Zinsmaster, 57 Neb. 158, 77 N.W. 373 (1898).
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writ issuing or not issuing at the close of all the proceedings
rather than at the beginning.36 Contrary to our cases stating
that a motion to quash is the proper procedure to challenge the
sufficiency of the application for the writ, in Christopherson v.
Christopherson,37 for example, we applied the civil procedure
statutes to determine that the respondent’s demurrer should
be considered a motion to dismiss. We ultimately held that
the motion to dismiss was improper insofar as it attempted to
obtain dismissal by means of factual allegations as yet untested
in court.38
[13] Thus, we clarify here that the procedure set forth
in §§ 29-2801 through 29-2824 applies to child custody
habeas proceedings. In Mayfield v. Hartmann,39 we addressed
a habeas proceeding involving civil commitment and said that
we have uniformly applied rules limiting collateral attacks by
habeas corpus to void judgments to “both civil and criminal
cases alike.” We likewise find that the procedure for child
custody and prisoner custody habeas proceedings should be
uniform. Even if §§ 29-2801 through 29-2824 did not directly
control, the traditional common-law procedures would not
be different.40 The procedural mechanism to bring the child
into court quickly and procure the court’s temporary custody
36
See, e.g., Brett M. v. Vesely, supra note 35; Gomez v. Savage, supra note
34; Uhing v. Uhing, supra note 35; L.G.P. v. Nebraska Dept. of Soc. Servs.,
supra note 35; Friedrichsen v. Koehn, supra note 35; Marcus v. Huffman,
supra note 35; Gray v. Hartman, supra note 35; Osterholt v. Osterholt,
supra note 31; Lakey v. Gudgel, supra note 35; Hanson v. Hanson, supra
note 24; In re Application of Schwartzkopf, supra note 35; State v. Bryant,
supra note 35; Clarke v. Lyon, supra note 35.
37
Christopherson v. Christopherson, supra note 26.
38
See id.
39
Mayfield v. Hartmann, 221 Neb. 122, 125, 375 N.W.2d 146, 149 (1985),
citing Schleuter v. McCuiston, 203 Neb. 101, 277 N.W.2d 667 (1979);
State ex rel. Casselman v. Macken, 194 Neb. 806, 235 N.W.2d 867 (1975);
and Sedlacek v. Hann, supra note 18.
40
See Freedman, supra note 25.
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over that child’s welfare through issuance of a writ pending
a custody hearing protects the interests of the child and the
parents alike.
Accordingly, a motion to dismiss under Neb. Ct. R. Pldg.
§ 6-1112(b) should play no role in a child custody habeas pro-
ceeding. Instead, a challenge should be made to the writ, if it is
issued, by means of a motion to quash.
That was not the procedure followed below. The court erred
by failing to determine sua sponte whether to issue the writ,
from which could have been followed a motion to quash rather
than a motion to dismiss under § 6-1112(b). We will neverthe-
less review the court’s ultimate conclusion that the allegations
in the application were insufficient to state a claim challeng-
ing the lawfulness of the restraint of the child in Jeremy and
Jamie’s custody. In Rehbein v. Clarke,41 we similarly consid-
ered whether the court had properly dismissed the application
for writ of habeas corpus, even though we held that the court
had failed to follow proper procedure when it entertained a
demurrer instead of a motion to quash. The question regardless
was whether the allegations of the application were sufficient
to warrant discharge.42
In accordance with Rehbein, we will examine whether
Maria’s allegations were sufficient to warrant the child’s dis-
charge from Jeremy and Jamie’s custody, but we will not
address the mandate in § 6-1112(b) regarding conversion of
a motion to dismiss into a motion for summary judgment.
Habeas corpus proceedings, like postconviction proceedings,
are not governed by the Nebraska Court Rules of Pleading in
Civil Cases.43 The mandate in § 6-1112(b) is thus inapplicable
to habeas proceedings. Further, we can determine, without
considering the exhibits admitted at the hearing, whether Maria
failed to allege facts warranting relief.
41
Rehbein v. Clarke, supra note 21.
42
See id.
43
See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
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[14] The motion to quash admits all ultimate facts well
pleaded in a relator’s application, as distinguished from conclu-
sions 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.44 Maria alleged in her application that
the relinquishment was “conditioned upon the retention of
some parental rights” and that Jeremy and Jamie “made prom-
ises and representations to [Maria] that she could see the child”
and had failed to allow her to do so. The attached agreement
provides the additional factual allegations that this was a foster
parent adoption after Maria gave consent to adopt and signed
a voluntary relinquishment to DHHS (which DHHS accepted).
The agreement is asserted to amount to a condition under
paragraph V of the petition, therefore rendering the relinquish-
ment invalid.
[15] Communication and contact agreements are contem-
plated and discussed by the law at Neb. Rev. Stat. §§ 43-162
to 43-166 (Reissue 2016). These statutes specifically provide
that the agreements 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 relinquish-
ment to DHHS. Therefore, under the law, such an agreement
in any form could never be considered an invalidating con-
dition, and noncompliance cannot be the basis for the relief
Maria seeks.
[16] Section 43-162 provides for court approval of com-
munication or contact agreements for adoptees in the custody
of DHHS:
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 prospective
44
See Sedlacek v. Greenholtz, supra note 18.
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adoptee is in the custody of [DHHS]. Any such agreement
shall not be enforceable unless approved by the court pur-
suant to section 43-163.
A court gives statutory language its plain and ordinary meaning
and will not look beyond the statute to determine the legisla-
tive intent when the words are plain, direct, and unambiguous.45
Under the plain language of § 43-162, “an agreement regarding
communication or contact . . . shall not be enforceable unless
approved by the court.”
While the application failed to describe whether the agree-
ment was approved by the juvenile court, even had the agree-
ment been approved, its breach would not have rendered
Maria’s relinquishment and consent invalid. Section 43-164
states that failure to comply with a court-approved commu-
nication or contact agreement shall not be grounds for setting
aside or revoking a relinquishment, consent to adoption, or an
adoption decree:
Failure to comply with the terms of an order entered
pursuant to section 43-163 shall not be grounds for
setting aside an adoption decree, for revocation of a
written consent to adoption after the consent has been
approved by the court, or for revocation of a relinquish-
ment of parental rights after the relinquishment has been
accepted in writing by [DHHS] as provided in section
43-106.01.
[17] Maria argues on appeal that her factual allegations in
the application for the writ included an alleged breach of a pri-
vate, apparently oral, promise to maintain contact, as opposed
to the written agreement presented during the adoption pro-
ceeding. But these statutes are not limited to written agree-
ments or agreements presented to the juvenile court. We find
no ambiguity in the Legislature’s stated intent to encompass
within § 43-163 all written or oral agreements regarding com-
munication or contact after an adoption, when the prospective
45
In re Interest of Joseph C., 299 Neb. 848, 910 N.W.2d 773 (2018).
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adoptee is in the custody of DHHS. Under § 43-163, such
agreements are enforceable only if approved by the juvenile
court and, pursuant to § 43-164, such agreements are never
enforceable by way of revoking the consent and dissolving
the adoption.
Thus, the facts alleged in Maria’s application, as distin-
guished from conclusions of law therein, were not sufficient
to warrant discharge. Rather, the allegations in the applica-
tion show on their face that there is an insuperable bar to
relief. While Maria asserted more broadly in her application
that her relinquishment and consent was invalid because it
was “obtained through coercion and/or false pretenses and/or
fraud,” this naked conclusion of law was insufficient to warrant
a writ of habeas corpus.
[18-20] For the first time on appeal, Maria raises the con-
stitutionality of the statutes governing consent and contact
agreements in relinquishments to DHHS. Appellate courts
do not generally consider arguments and theories raised for
the first time on appeal.46 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.47 If
not so raised, it will be considered to have been waived.48
Furthermore, strict compliance with Neb. Ct. R. App. P.
§ 2-109(E) (rev. 2014) is necessary whenever a litigant chal-
lenges the constitutionality of a statute, regardless of how
that constitutional challenge may be characterized.49 Maria
failed to file a separate notice challenging the constitutional-
ity of a statute and serve her brief on the Attorney General, as
required by § 2-109(E).
46
State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
47
State ex rel. Shepherd v. Neb. Equal Opp. Comm., 251 Neb. 517, 557
N.W.2d 684 (1997).
48
Id.
49
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
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While habeas corpus is an appropriate remedy to challenge
the legality of a child’s adoption and custody,50 §§ 43-162
and 43-164 present an insuperable bar to relief under the cir-
cumstances and events alleged in Maria’s petition. Although
the proper procedure was not followed, we affirm the court’s
ultimate determination that the application failed to allege facts
that could warrant relief in a habeas proceeding. For this rea-
son, we find no merit to Maria’s assignments of error.
CONCLUSION
For the foregoing reasons, we hold that the district court
did not err in dismissing Maria’s application for a writ of
habeas corpus.
A ffirmed.
50
See Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).