Ashby v. State

• Decision Date: 05 March 2010
• Docket Number: No. S-08-1274.,S-08-1274.
• Parties: Matthew L. ASHBY, individually, and M.A., a minor, by and through Matthew L. Ashby, his father and next friend, appellants, v. STATE of Nebraska et al., appellees.
• Court: Nebraska Supreme Court

779 N.W.2d 343

279 Neb. 509

Matthew L. ASHBY, individually, and M.A., a minor, by and through Matthew L. Ashby, his father and next friend, appellants, v. STATE of Nebraska et al., appellees.

No. S-08-1274.

Supreme Court of Nebraska.

March 5, 2010.

Herbert J. Friedman and Daniel H. Friedman, of Friedman Law Offices, Lincoln, for appellants.

Jon Bruning, Attorney General, and Michael J. Rumbaugh, Lincoln, for appellees State of Nebraska and Mary Dyer.

Susan Kubert Sapp and Stanton N. Beeder, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellees Monica Taylor Kilmer, Douglas Eric Black, and Tammy Norris Black.

Milton A. Katskee and Melvin R. Katskee, of Katskee, Henatsch & Suing, Omaha, for appellees Estate of Michael Washburn and Erickson & Sederstrom, P.C.

Walter E. Zink II and Amanda A. Dutton, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellee Bryant A. Whitmire.

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

SUMMARY

Matthew L. Ashby is the biological father of M.A., born in January 2004. Ashby never married M.A.'s mother, Monica Taylor Kilmer, and she never listed Ashby as M.A.'s father on the birth certificate. But Ashby registered with the biological father registry within the statutory period to claim paternity.¹ Before the period expired, however, the State of Nebraska, acting through adoption specialist Mary Dyer, allowed the prospective adoptive parents, Douglas Eric Black and Tammy Norris Black, to take M.A. to Alabama. Ashby claims that the State and Dyer acted negligently and violated his due process rights in allowing M.A. to leave the state while Ashby could still assert paternity. The State disagrees. It contends that Dyer had met all the requirements under Nebraska law and the Interstate Compact on the Placement of Children (ICPC).²

Ashby also brings claims against Kilmer; the Blacks; the Blacks' attorney in Alabama, Bryant A. Whitmire; the estate of Kilmer's attorney in Nebraska, Michael Washburn; and Washburn's former law firm, Erickson & Sederstrom, P.C. He claims that all parties knew that he would contest the adoption and that they attempted to complete the adoption without informing him. Ashby sued the defendants for civil conspiracy, false imprisonment, constructive fraud, misrepresentation, and breach of fiduciary duty. Ashby also sued Kilmer's parents and the agency that facilitated the adoption, but those claims were dismissed and are not appealed.

The defendants moved for summary judgment, which the district court granted. Ashby, individually and on behalf of M.A., appeals, and we affirm.

FACTS

M.A.'S BIRTH AND ADOPTION

Ashby and Kilmer separated shortly after M.A.'s conception. Before their separation, Kilmer informed Ashby that she was pregnant and was considering adoption. Ashby told her that if she did not want to raise the child, he would, and that he would not relinquish his parental rights or consent to an adoption. Before M.A.'s birth, however, he did not register with the biological father registry to receive notice of any intended adoption, nor did he give notice that he objected to an adoption and intended to claim paternity.³ The two did not see each other or speak again until after the child was born.

Kilmer contacted a private adoption agency and, through the agency, selected the Blacks, a married couple living in Alabama, to adopt her child. The day after M.A.'s birth, the Blacks came to Nebraska, and about 2 weeks later, they returned to Alabama with M.A. They commenced adoption proceedings in that state.

Washburn represented Kilmer in the private adoption. Because the Blacks lived out of state, Dyer helped in the adoption. Dyer is an adoption specialist with the Department of Health and Human Services and the person charged with assisting out-of-state adoptions under Nebraska's ICPC. According to Dyer, she approves the removal of children from Nebraska for adoption placement in other states. She approves each placement by filling out a form and then forwarding the paperwork approving the placement to her counterpart in the state receiving the child. Dyer stated that she could prevent a child from being placed in another state.

Dyer stated that because this was a private adoption, the State has no responsibility to determine whether a putative father has filed a notice of intent to claim custody. According to her, when a State ward is adopted, the State would prepare the adoption paperwork and would check the biological father registry. But because this was a private adoption, Dyer never checked to confirm whether Ashby had registered with the biological father registry or had received notification of the proposed adoption. She noted that even if she had checked, at the time she approved the placement, Ashby had still not registered.

Dyer testified that the biological mother's attorney carries the burden to check the registry in private adoptions. Dyer acknowledged that the publication notice she received from Washburn put her on notice that Ashby had until February 12, 2004, to register for paternity. But she claims that because the paperwork also indicated that Washburn had mailed a registered letter to Ashby on January 8, 2004, Ashby perhaps had only 5 business days after January 8 to register. Although she acknowledged that her file lacked a receipt from the letter and that she had no proof that Ashby had actually received the letter, she stated that she had no reason to doubt that Washburn had actually contacted Ashby by mail. Dyer also acknowledged that Washburn had indicated that Ashby was unwilling to agree to the adoption and would not sign the consent to the adoption. She admitted that she normally required a "no claim of paternity" certificate before allowing children to leave the state when a biological father has not signed the documents allowing the adoption. But she had not received, nor did she require, such certificate from Washburn.

Because Dyer knew that Ashby still had time to assert his paternity, she had the Blacks sign an at-risk placement notice that required them to return the child to Nebraska if Ashby asserted his paternity.⁴ Dyer testified that although she approves the placement of children outside the state, her duties required only that she execute an at-risk placement form. She contended her duties did not require her to determine whether the biological father has registered with the Department of Health and Human Services' vital records section. Yet, she acknowledged that she has the ultimate power to determine whether a child born in Nebraska may leave the state for a preadoption placement.

ASHBY'S PATERNITY AND CUSTODY ORDER

Before M.A.'s birth, Washburn attempted to contact Ashby by mail about the pending adoption. Washburn allegedly sent a letter to Ashby on January 8, 2004, but the record indicates that he never received a return receipt confirming that Ashby received the letter. Ashby claims that Washburn sent the letter to the wrong address and that he did not receive it until January 29, 8 days after M.A.'s birth. But Washburn also published notice of the birth, and under the statutes in effect at the time, Ashby had until February 12 to register. On January 30, the day after he received Washburn's letter, Ashby registered and filed for custody.

On April 21, 2004, the Madison County Court held a custody hearing. The court's order stated that Ashby had timely filed his notice of intent to claim paternity and that he was the biological father of the child, and it granted him custody. At that time, Dyer contacted the Alabama ICPC office and informed it that under the at-risk placement agreement, the Blacks had to return M.A. to Nebraska. The Blacks refused.

Ashby, armed with the custody order, went to Alabama to have it enforced. The Alabama court, however, eventually declined to enforce the custody order because Ashby had failed to include the Blacks as parties to the action as required by the Uniform Child Custody Jurisdiction and Enforcement Act⁵ and Parental Kidnapping Prevention Act of 1980.⁶ The Alabama court concluded that the Nebraska judgment was valid as to Ashby's paternity but not valid as to the custody determination. So it did not order the Blacks to return M.A. to Nebraska.⁷ It concluded, however, that M.A.'s custody should be determined in Nebraska after Ashby included the Blacks as parties in the custody case. It also stayed the adoption proceedings in Alabama until that happened. The record fails to show that Ashby took any further action to obtain custody. And in February 2009, Ashby voluntarily relinquished his parental rights in a settlement with the Blacks. The settlement, however, reserved his claims in this suit filed in the Lancaster County District Court.

ASHBY'S STATE COURT CLAIMS AND DISTRICT COURT'S DISPOSITION

In the Lancaster County District Court action, Ashby alleged that the State, through its employee Dyer, negligently allowed M.A. to leave Nebraska before determining whether Ashby was properly notified of the adoption. And he alleges that Dyer's actions deprived him of procedural and substantive due process rights under 42 U.S.C. § 1983 (2006). Ashby also claimed that (1) all the defendants conspired to violate his civil rights and deprive him of a parental relationship with his son; (2) the Blacks falsely imprisoned M.A.; and (3) Dyer, Kilmer, the Blacks, Whitmire, Washburn, and Erickson & Sederstrom engaged in constructive fraud, misrepresentation, and breach of fiduciary duty. He sought not the return of his son, but compensatory and punitive damages.

In two separate orders, the district court granted summary judgment to Kilmer, the Blacks, Whitmire, Washburn, and Erickson & Sederstrom. In April 2008, the court denied Ashby's request that the court order Whitmire to produce his file on M.A. And in November 2008, the court granted summary judgment to the State and Dyer....