Ex parte Schwartzkopf

• Decision Date: 12 March 1948
• Docket Number: 32371.
• Citation: 31 N.W.2d 294,149 Neb. 460
• Parties: Ex parte SCHWARTZKOPF et al. SCHWARTZKOPF et al. v. COVER et al.
• Court: Nebraska Supreme Court

31 N.W.2d 294

149 Neb. 460

Ex parte SCHWARTZKOPF et al.

SCHWARTZKOPF et al. v. COVER et al.

No. 32371.

Supreme Court of Nebraska

March 12, 1948

Syllabus by the Court.

1.Adoption proceedings under our statutes determine more than mere custody of the adopted child.Such proceedings create a status of parent and child between the adoptive parents and the minor child.

2.The writ of habeas corpus is not a corrective remedy, and is never allowed as a substitute for appeal or proceedings in error.

3.Habeas corpus is a proper proceeding to determine the right to the custody of a minor child.

4.Ordinarily, the basis for the issuance of a writ of habeas corpus is an illegal detention, but in the case of a writ sued out for the detention of a child, the law is concerned not so much about the illegality of the detention as about the welfare of the child.

5.In a controversy for the custody of an infant of tender years, the court will consider the best interest of the child, and will make such order for its custody as will be for its welfare, without reference to the wishes of the parties.

Neighbors & Danielson, of Scottsbluff, for appellants.

Morrow Lovell & Bulger, of Scottsbluff, for appellees.

Heard before SIMMONS, C. J., MESSMORE, YEAGER, CHAPPELL and WENKE, JJ., and BARTOS and JACKSON, District Judges.

BARTOSDistrict Judge.

On July 22 1947, Carl Schwartzkopf, George F. Buechler, and Frances Buechler filed their joint petition in the district court for Scotts Bluff County, Nebraska, for a writ of habeas corpus against Aaron L. Cover, Beth L. Cover, and Aaron L. Cover as guardian of the person and estate of Robert Spencer Buechler, a minor.The object and prayer of the petition was to recover the custody of the minor child, Robert Spencer Buechler.The relators claim the right to the custody of the child by virtue of their relationship and contend that the respondents unlawfully are withholding from them the custody of the child.

The respondents, by their return to the writ, claim the right to the custody of the child by virtue of a relinquishment and consent executed by the mother in her lifetime in their favor.

A hearing was had to the court upon the issues as above outlined and evidence was adduced by all parties to this litigation.The trial court, after making special findings, entered a decree denying the writ of habeas corpus, dismissing the relators' petition and declaring the infant to be in the lawful custody and care of the respondents.The relators have perfected their appeal to this court.

The appellants, hereinafter designated as relators, contend that: 1.The writing executed by Virginia Buechler was a relinquishment of control without an express consent and therefore was not sufficient under our statutes to justify adoption.2.If the mother's relinquishment was a consent to adoption, it became inoperative upon her death and the exclusive right to custody of the child devolved upon the father, especially since the father has legitimated the child and there has been a judicial finding of his paternity.3.The natural father and the natural grandparents, as natural guardians, upon the death of the mother of a child born out of wedlock and before adoption is decreed, have the right to revoke the consent to adopt, executed by the mother in her lifetime.4.The maternal grandparents of a child born out of wedlock, being found to be fit, are entitled to the custody of the child upon the death or disqualification of the parents.5.The best interest of the child would be served by recognizing the natural guardian's right to custody in the absence of a clear showing of unfitness.

The following facts are either admitted by the pleadings or appear uncontroverted from the evidence.Virginia Buechler was a daughter of George F. and Frances Buechler, residents of St. Louis, Missouri.She came to Scottsbluff, Nebraska, the latter part of 1943 to work as a radio communicator at the United States Army air base located in that city.She commenced keeping company with Carl Schwartzkopf sometime in 1945.Schwartzkopf was then a married man and the father of two children.She gave birth to a male child on the 17th day of April, 1947, in St. Mary's Hospital in said city.Carl Schwartzkopf admitted before and after the birth of said child, and admits in the petition, that he is the natural father of the child.Virginia Buechler and Carl Schwartzkopf never married.She died in Scottsbluff on the 21st day of May, 1947, as a result of an automobile accident in which Carl Schwartzkopf was also injured and thereafter hospitalized for several weeks.

On April 23, 1947, while in the hospital and in the presence of a nurse, Virginia Buechler signed an instrument whereby she surrendered her child and the custody and control thereof to Aaron L. and Beth L. Cover, husband and wife.The child was named in that instrument as 'Robert Spencer Buechler.'This instrument was acknowledged by her before a notary public.She also, on the same day, signed and acknowledged before a notary public a voluntary appearance in a court proceeding then filed in the county court of Scotts Bluff County and entitled 'In the Matter of the Adoption of Robert Spencer Buechler, an infant.'The respondents on the same day filed in the same court their petition, and the two instruments executed by the mother, for the adoption of the child.The child was then six or seven days old and the respondents took it to their home for the first time, where it has been in their custody ever since.The petition for the adoption of the child was set for hearing on the 12th day of June, 1947.No notice by publication or otherwise was ordered by the court, because the county court in fixing the time for hearing the petition for adoption of the child held that 'no notice of publication be made herein for the reason that all interested parties are already before the Court.'On June 12, 1947, the matter of the adoption was, on application of the petitioners(respondents herein), continued to the 25th day of October, 1947, for the reason that the child was not in the care and custody of the said petitioners for a period of six months as is required by law.

On May 29, 1947, the respondentAaron L. Cover was, on due application therefor, appointed by the county court of Scotts Bluff County, guardian over the person and estate of the child.No notice was given by said court of the filing of the petition for the guardianship proceeding or of a hearing thereon.The respondent qualified as such guardian and is now the duly qualified and acting guardian over the person and estate of the child.

The relators demanded the custody of the child from the respondents.This demand was refused.

At the outset it must be remembered that this is an action for a writ of habeas corpus to determine the right to the custody of the child.It is not a proceeding to determine the right of adoption of the child by the respondents.As far as the record discloses, the adoption proceedings are still undetermined and pending in the county court of Scotts Bluff County, Nebraska.

Adoption proceedings determine more than the custody of the adopted child.It has been held in the case of In re Estate of Enyart, 116 Neb. 450, 218 N.W. 89, 91, that 'Pursuant to this statute, the decree of adoption created, in law, between the adoptive parent and adopted child, the relation of parent and child, * * *.'

Whether or not the writing executed by Virginia Buechler was a relinquishment of control without an express consent and therefore not sufficient under our statutes to justify adoption, or whether or not her consent to adoption became inoperative upon her death and could be revoked by the natural father of the child or by its grandparents, need not be decided at this time.

'Habeas corpus is not a corrective remedy and cannot be employed as a writ of quo warranto or as a writ or certiorari.While a writ of habeas corpus is in the nature of a writ of error in so far as it brings into review the legality of the authority by which the prisoner is confined, it is well settled that such writ will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having jurisdiction over the person and subject matter.'25 Am.Jur., Habeas Corpus, § 14, p. 152.

To the same effect is the case of In re Langston, 55 Neb. 310, 75 N.W. 828, wherein this court held that: 'The writ of habeas corpus is not a corrective remedy, and is never allowed as a substitute for appeal or proceeding in error.'

Habeas corpus proceeding is a proper remedy to determine the right to the custody of a child.The evidence in this case discloses the following pertinent facts relative to the custody of the child.The attending physician testified that the evening before the child was born he had a conversation in the hospital with Carl, who informed him that Virginia did not want the baby, that she wanted it adopted into a good home, that he did not approve of her adopting the baby out but that there was not much he could do about it.The doctor also talked to Virginia about the child before it was born and she told the doctor in the presence of Carl that she did not want the child.They talked...