Lum v. Mattley

305 N.W.2d 878, 208 Neb. 789, 1981 Neb. LEXIS 857

• Court: Nebraska Supreme Court
• Decided: May 15, 1981
• Docket: 43364
• Status: Published

Opinions

White, J.

Plaintiff, Lynette Lum, the natural mother of Ruby Nohelani Lum, a child born out of wedlock on November 21, 1979, brought an action in habeas corpus in the District Court for Box Butte County, Nebraska, alleging that a relinquishment signed January 15, 1980, in favor of Dennis R. and Virginia M. Mattley, a married couple, was void because it was obtained by threats, coercion, and fraud and that the best interests of the child required that the plaintiff mother regain custody. Dennis R. and Virginia M. Mattley answered, admitting custody and denying all other allegations of the petition. The trial court found for the defendants. Plaintiff appeals.

Plaintiff assigns two errors: (1) That the trial court erred in determining that, while a natural mother may revoke her relinquishment and consent to adoption at any time prior to the adoption, the right is subject to the court’s determination that the return of the custody to the natural mother is in the best interests of the child; and (2) That the trial court erred in not holding that a natural mother who has relinquished custody is entitled to return of the child’s custody before adoption absent an affirmative finding of unfitness.

We note the absence of a bill of exceptions. Under our cases, where there is no bill of exceptions the court is limited to a sole question: whether the pleadings support the judgment of the trial court. Pauley v. Scheer, 168 Neb. 343, 95 N.W.2d 672 (1959); Bednar v. Bednar, 146 Neb. 726, 21 N.W.2d 438 (1946).

The trial court in its findings held that the relinquishment was voluntary and that plaintiff was neither coerced nor subjected to duress. The plaintiff does not question those findings here and they will not be further discussed.

Implicit in the question of whether the pleadings support the findings of the court is the determination of the extent of the right, if any, of a parent, after a valid relinquishment to a private person has been executed and custody delivered, to revoke the relinquishment and compel the delivery of the child.

The District Court here found that the relinquishment signed by plaintiff was made knowingly, intelligently, and voluntarily, without threats, coercion, fraud, or duress. In addition, the relinquishment form appears to be valid on its face. Thus, we find that the relinquishment of parental rights and consent to adoption form signed by plaintiff is valid.

Under Nebraska law, our focus now shifts to the best interests of the child in determining the right to custody. The rule in Nebraska is that a natural parent “can, by agreement, surrender the custody of his infant children to another, so as to make the custody of that other legal, and he cannot thereafter repudiate such agreement and retain the custody of the children, unless he can show a clear breach of the agreement, or an abuse of the child, or that the best interest of the child requires it.” State v. Nebraska Children’s Home Society, 94 Neb. 255, 263, 143 N.W. 203, 206 (1913). In the wake of a valid relinquishment, then, it is incumbent upon the petitioner to show that the best interests of the child require that it be returned to her custody.

We are convinced that this is the proper rule to follow in cases such as the present one. In Contreras v. Alsidez, 200 Neb. 773, 775, 265 N.W.2d 452, 453 (1978), a habeas corpus action in which there had been no voluntary relinquishment of parental rights, we noted that: “‘When a controversy arises as to the custody of a minor child between a parent and a third person, the custody of the child is to be determined by the best interests of the child with due regard for the superior rights, as between the parties, of a fit, proper, and suitable parent.’”

However, by the terms of the valid relinquishment in the present case, petitioner has voluntarily terminated her own parental rights, including “the superior rights ... of a fit, proper, and suitable parent.” Thus, petitioner’s parental rights are no longer in issue here and the parties now stand on an equal footing with respect to determining custody. The rule of State v. Nebraska Children’s Home Society, supra, properly shifts our focus now to the best interests of the child. The party demanding that custody be changed naturally must bear the burden of affirmatively demonstrating that “the best interests of the child require” that she regain custody.

The rule’s focus on the child’s best interests recognizes that it is the child who will bear the brunt of the impact of revoking a valid relinquishment, by being uprooted and shifted from home to home. To focus instead upon any “right” of a relinquishing parent to change her mind would ignore the fact that parental rights are no longer an issue after a valid relinquishment and would further abrogate our responsibility to the best interests of the child. Even parental rights which are fully intact are not inalienable because of the “paramount interest” of society in the protection of the child’s best interests. State v. Duran, 204 Neb. 546, 554, 283 N.W.2d 382, 387 (1979). Where, as here, parental rights are no longer at issue, the best interests of the child can be our only concern in determination of custody. Thus, the trial court was correct in requiring that petitioner make an affirmative showing that the child’s best interests require her return to petitioner, and the assignments of error are without merit.

The trial court made detailed findings with respect to the best interests of the child requiring custody to remain with the prospective adoptive parents. In the absence of a bill of exceptions, those findings must be taken as correct.

The determination by the District Court in this habeas corpus case does not in any fashion control the proper exercise of the jurisdiction of the county court in the adoption proceeding itself.

The judgment of the District Court in this habeas corpus action is affirmed.

Affirmed.