Auman v. Toomey

368 N.W.2d 459, 220 Neb. 70, 1985 Neb. LEXIS 1044
CourtNebraska Supreme Court
DecidedMay 24, 1985
Docket84-741
StatusPublished
Cited by14 cases

This text of 368 N.W.2d 459 (Auman v. Toomey) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Auman v. Toomey, 368 N.W.2d 459, 220 Neb. 70, 1985 Neb. LEXIS 1044 (Neb. 1985).

Opinions

Boslaugh, J.

On May 1,1984, the petitioner, Mary Jane Auman, executed and delivered a written relinquishment and consent to the adoption of her daughter, Ann Marie, by the respondents, Carol Ann Toomey and Michael J. Toomey. The child has been in the custody of the respondents since that date.

On May 18, 1984, the petitioner executed a written revocation of the relinquishment and commenced this proceeding on June 14, 1984, for a writ of habeas corpus to obtain custody of the child. The trial court found that the relinquishment and consent to adoption executed by the petitioner was valid and that it was in the best interests of the child that she remain in the custody of the respondents, and dismissed the petition. The petitioner has appealed.

The issue presented by the petitioner is whether the relinquishment and consent to adoption she executed was valid.

The record shows that on April 30, 1984, the petitioner contacted an attorney, Clay Statmore, and made an appointment for the next day to discuss adoption procedures for the child, who was then 22 months old. Statmore informed her he represented a couple interested in adopting a child.

On May 1,1984, the petitioner and the child’s natural father, Scott Squires, met with Statmore on two occasions. At the morning meeting Statmore informed them he could not represent them in this matter and that they had a right to speak to an attorney. He asked them if they wanted to adopt out their child. Squires said they had been thinking about it for a year and a half. When asked,-neither was interested in temporarily [72]*72placing the child with relatives, as the responsibility for caring for her would still be with them.

After gathering all the necessary information, Statmore told them he would contact them later that afternoon after checking with the prospective adoptive parents. He informed them that once they signed the relinquishment, it would be final. Up until that point they could change their minds.

That afternoon the couple met again with Statmore and his associate, Dana London. Statmore repeated several times that he did not represent them, that signing the document relinquished all of their rights to the child, and that it was final and irrevocable. He also advised them of the availability of temporary foster care and of their right to an attorney. Both the petitioner and Squires read the relinquishment, had no questions, and signed the documents. The relinquishment was witnessed by Dana London and acknowledged before Statmore, a notary public. The petitioner then made arrangements for Statmore to collect the child and her belongings that evening. That night Statmore delivered the child to the respondents.

On May 4, 1984, the petitioner and Squires returned to Statmore’s office and requested the return of their daughter. Statmore told them the relinquishment was final and that court action was the only way to recover the child. He told them they would need to get their own attorney because he represented the respondents.

On June 14,1984, the petitioner filed this action alleging that the relinquishment and consent to adoption was involuntary and had been made under duress and, therefore, was invalid. She prayed that the custody of the child be returned to her.

At trial the petitioner testified that she relinquished her child due to personal and financial problems. Both she and Squires testified they were under the impression when they signed the relinquishment that there was a 2-week waiting period before the relinquishment would be final, during which they could get their daughter back.

A therapist who had counseled the petitioner over a period of time beginning May 9, 1984, testified that in her opinion the petitioner had impaired judgment at the time she signed the [73]*73relinquishment and was unable to correctly assess the consequences of her behavior. The petitioner’s sister also testified as to the petitioner’s “dazed” state on April 30.

The trial court found that the relinquishment was voluntary and valid and that it was in the best interests of the child that she remain in the custody of the respondents.

The petitioner has assigned three errors, all which center on whether the district court erred in finding the relinquishment to have been voluntarily executed and valid.

A decision in a habeas corpus case involving the custody of a child is reviewed by this court de novo on the record. Where the evidence is in irreconcilable conflict, we consider the findings of the trial court. McCormick v. State, 218 Neb. 338, 354 N.W.2d 160 (1984); Gray v. Maxwell, 206 Neb. 385, 293 N.W.2d 90 (1980).

The burden is on a natural parent challenging the validity of a relinquishment to prove that it was not voluntarily given. Lum v. Mattley, 208 Neb. 789, 305 N.W.2d 878 (1981); State v. Nebraska Children’s Home Society, 94 Neb. 255, 143 N.W. 203 (1913).

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. McCormick, supra; Lum, supra; Kane v. United Catholic Social Services, 187 Neb. 467, 191 N.W.2d 824 (1971). However, a relinquishment conditioned upon the retention of some parental rights is invalid. McCormick, supra.

Here, there is no claim that the relinquishment is facially invalid or fails to meet the statutory requirement of acknowledgment. Neb. Rev. Stat. § 43-106 (Reissue 1984).

The petitioner claims only that the relinquishment was not voluntary due to her mental incompetence at the time of signing and the impression she had that she had 2 weeks from the time of signing in which to change her mind.

At the time the relinquishment was executed, the petitioner was not married or employed. Her only source of income was ADC benefits and food stamps. She received very little support from the child’s natural father because he, too, was without [74]*74work. She claims her financial stress at the time rendered her incompetent to make the decision to relinquish her child. The stresses, motivation, and circumstances that were present in this case are present in many such cases and do not form a basis for revocation. See Kane, supra.

Here, the evidence discloses the decision to relinquish was made by the petitioner herself without outside influence or pressure from anyone. She had thought about relinquishing the child for adoption since the time of her birth. She initiated the proceedings by contacting Statmore and setting up the initial appointment. She did not discuss her intention to relinquish the child for adoption with her parents, who in fact were against the idea. She only informed Squires of the appointment after she had made it.

At the meetings with Statmore she was coherent and participated actively in the conversation. She understood the finality of the relinquishment and declined advice that she needed an attorney.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Interest of Jordon B.
316 Neb. 974 (Nebraska Supreme Court, 2024)
In re Interest of Zoey S.
Nebraska Court of Appeals, 2014
In Re Adoption of Luke
640 N.W.2d 374 (Nebraska Supreme Court, 2002)
Hohndorf v. Watson
482 N.W.2d 241 (Nebraska Supreme Court, 1992)
Yopp v. Batt
467 N.W.2d 868 (Nebraska Supreme Court, 1991)
Hensman v. Parsons
458 N.W.2d 199 (Nebraska Supreme Court, 1990)
Reynolds v. Green
439 N.W.2d 486 (Nebraska Supreme Court, 1989)
D.S. v. United Catholic Social Services
419 N.W.2d 531 (Nebraska Supreme Court, 1988)
Gaughan v. Gilliam
401 N.W.2d 687 (Nebraska Supreme Court, 1987)
Auman v. Toomey
368 N.W.2d 459 (Nebraska Supreme Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
368 N.W.2d 459, 220 Neb. 70, 1985 Neb. LEXIS 1044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auman-v-toomey-neb-1985.