D.S. v. United Catholic Social Services of Archdiocese of Omaha, Inc., 87-469
| Decision Date | 19 February 1988 |
| Docket Number | No. 87-469,87-469 |
| Citation | 227 Neb. 654,419 N.W.2d 531 |
| Parties | D.S., Appellant, v. UNITED CATHOLIC SOCIAL SERVICES OF the ARCHDIOCESE OF OMAHA, INC., et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Habeas Corpus: Child Custody: Appeal and Error. 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.
2. hMotions to Dismiss: Appeal and Error. When a trial court sustains a motion to dismiss at the close of a plaintiff's case in chief, the Supreme Court must treat as admitted the truth of all relevant evidence favorable to the plaintiff and must give the plaintiff the benefit of all permissible inferences deducible from the properly admitted evidence to determine whether a prima facie case has been established.
3. Child Custody: Adoption: Notice. A relinquishment to a licensed child placement agency is complete when the agency executes its written acceptance. There is no requirement that a copy of the signed acceptance be delivered to the person executing the relinquishment.
4. Trial. A court may make any order which justice requires to protect a person from annoyance, embarrassment, oppression, or undue burden or expense, including limitations on the method of discovery.
5. Trial: Proof. Control of discovery is a matter of judicial discretion. The burden of showing an abuse of discretion is upon the individual asserting it.
6. Trial: Proof. A judicial abuse of discretion requires that the ruling of a judge be shown to be clearly untenable, depriving the litigant of a substantial right and denying a just result in the matter submitted for disposition.
Warren S. Zweiback of Zweiback, Flaherty, Betterman & Lamberty, P.C., Omaha, for appellant.
Jeanne A. Weaver of Hotz, Kizer & Wintz, P.C., and John H. Kellogg, Jr., Omaha, for appellees United Catholic Social Services, et al.
The plaintiff is a 21-year-old unmarried woman. On August 8, 1986, she gave birth to a son. On August 18, she executed a relinquishment in favor of the United Catholic Social Services of the Archdiocese of Omaha, Inc. (UCSS). The acceptance of the relinquishment was executed the same day and the baby placed for adoption on the following day.
On December 16, 1986, the plaintiff commenced this action for a writ of habeas corpus on the theory that her relinquishment was invalid. The second amended petition, filed April 10, 1987, alleged that the relinquishment was involuntarily given in the presence of threats, coercion, fraud, and duress, and that a written acceptance was never delivered to the plaintiff.
At the close of the plaintiff's evidence, the defendants moved to dismiss the petition. The trial court found that the relinquishment had been freely and voluntarily signed by the plaintiff; that it had not been obtained by threats, force, or coercion; and that the motion to dismiss should be sustained. The plaintiff has appealed.
The plaintiff's principal assignment of error is that the trial court erred in failing to find that the relinquishment was invalid because it was involuntarily given.
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. Gaughan v. Gilliam, 224 Neb. 836, 401 N.W.2d 687 (1987), citing Auman v. Toomey, 220 Neb. 70, 368 N.W.2d 459 (1985).
When a trial court sustains a motion to dismiss at the close of a plaintiff's case in chief, the Supreme Court must treat as admitted the truth of all relevant evidence favorable to the plaintiff and must give the plaintiff the benefit of all permissible inferences deducible from the properly admitted evidence to determine whether a prima facie case has been established. See, First Nat. Bank & Trust Co. v. Hughes, 214 Neb. 42, 332 N.W.2d 674 (1983); Gordman Properties Co. v. Board of Equal., 225 Neb. 169, 403 N.W.2d 366 (1987). Thus, we review the record to determine whether the evidence, when viewed in the light most favorable to the plaintiff, was not sufficient as a matter of law to sustain a finding that the relinquishment was invalid.
The record shows that the plaintiff was a student at Creighton University on January 15, 1986, when she learned that she was pregnant. On the next day she notified the father, who was a married man with one child. They discussed the possibility of an abortion, and he sent the plaintiff some money to pay for an abortion.
The plaintiff's mother and father lived on a farm near a small town in Iowa. She did not tell her parents that she was pregnant until some days later, when her sister had a medical appointment in Omaha. By that time she had consulted several doctors, had decided against having an abortion, and had completed plans to transfer to Gonzaga University at Spokane, Washington. The purpose of transferring to Gonzaga was so that students from her home town attending school at Creighton would not learn of her pregnancy.
When the plaintiff told her sister that she was pregnant, her sister shook her head and said, "Oh, my God." The sister, together with her mother, immediately began asking the plaintiff, The plaintiff told her sister and mother that she had made plans to leave for Gonzaga University and stated, "I have to go; I have to leave." The plaintiff told her sister that she planned to place the baby for adoption. In describing her mother's reaction, the plaintiff stated that "[s]he acted very disgusted with me and she asked me how I could do that and she asked me what I planned to do, how I planned to leave Creighton, how I could screw up my education and stuff like that...."
The following day, the plaintiff left for Gonzaga, where she stayed until May, except for a brief return to Iowa over the spring break in March.
According to the child's father, he maintained contact with the plaintiff while she was at Gonzaga, and the two of them spoke on the telephone about every 10 days. He also stated that the plaintiff asked him for his opinion as to what she should do, "[m]any times." He said that he told the plaintiff that she had to "make up her own mind." He at no time made any physical threats to the plaintiff in regard to the adoption.
During the next few months, the plaintiff told various individuals that she planned to place the baby for adoption. Prior to the break in March, she apparently had conversations with her mother and sister about returning to Iowa for the break. She stated that she wished to spend the break at home but her mother would not allow it because people there would see her and learn of her pregnancy. Together, her mother and sister agreed that if she flew from Spokane to Sioux Falls instead of Omaha, no one would see her and learn of her condition. Her sister agreed to let the plaintiff stay with her and her family in Spirit Lake, Iowa, if the plaintiff would not "go anywhere" or "do anything," including going home. The sister stated that the reason for "hiding" the plaintiff was so others would not see her and because "[w]e didn't want anybody to know." By "we" she meant the family, and at that time thought the plaintiff felt that way, too. The sister stated that she restricted the plaintiff's activities because The plaintiff was not bound or tied in the sister's home over the break, nor were the doors locked when the sister left for work. The sister ultimately stated that everyone, including the plaintiff, was involved in the decision that the plaintiff restrict her "public" activities.
The plaintiff spent the spring break at her sister's house. Her parents visited her there during her stay. During this time the plaintiff told her parents that she was unsure of what she wanted to do with the baby and, for the first time, said that she was considering the idea of keeping the baby herself. In response, her mother said that "the child needs two parents and that these people really wanted this baby and that they would really love the baby." During this time, the plaintiff recalled, her mother told her that she was not a good person and that she had sinned and could probably never become a good person, and that if she kept the baby she would be ruining their life, the baby's life, and everyone's life.
The sister became aware of the plaintiff's ambivalence in placing the child for adoption and stated that she told the plaintiff "I didn't know how she could do that to mom and dad." The sister denied arguing with the plaintiff about the matter and characterized their encounters as discussions, in which she would tell the plaintiff that she thought it better for the plaintiff not to keep the baby. The sister denied telling the plaintiff anything about what others might think if they were to see her pregnant. According to the plaintiff, the conversations with her sister during the break focused on the humiliation and embarrassment that would inure to the plaintiff and the parents if she decided to keep the baby. The sister admitted taking a side in the debate and urging adoption as the proper choice for the plaintiff as well as for the sister and the parents, so that no one would be embarrassed. The sister further told the plaintiff that welfare would be an awful choice, that the plaintiff could not go to school and have a baby, and that the plaintiff needed to give the baby two parents.
In addition to speaking with her parents and sister over the break, the plaintiff also spoke with the father of the child, who told her not to keep the child because it would ruin his life once his...
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