Friehe v. Schaad

• Decision Date: 12 April 1996
• Docket Number: No. S-95-523,S-95-523
• Parties: Jennifer FRIEHE, Appellee, v. Robert J. SCHAAD, Appellant.
• Court: Nebraska Supreme Court

Page 740

545 N.W.2d 740

249 Neb. 825

Jennifer FRIEHE, Appellee, v. Robert J. SCHAAD, Appellant.

No. S-95-523.

Supreme Court of Nebraska.

April 12, 1996.

Syllabus by the Court

1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law on which the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision by the trial court.

2. Constitutional Law: Statutes: Presumptions: Proof: Appeal and Error. When passing on the constitutionality of a statute, an appellate court begins with a presumption of validity, and the burden of demonstrating a constitutional defect rests with the challenger.

3. Equity: Appeal and Error. In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court.

4. Equal Protection. Under the Equal Protection Clause, gender-based classifications are subject to intermediate scrutiny.

5. Equal Protection. The intermediate scrutiny test requires that gender-based distinctions must serve important governmental objectives and must be substantially related to achievement of those objectives.

6. Constitutional Law: Parent and Child. A distinction exists between the termination of an opportunity to form a familial bond and the termination of an established familial bond, warranting different levels of constitutional protection.

7. Due Process: Notice. Procedural due process limits the ability of the government to deprive people of interests which constitute "liberty" or "property" interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard.

8. Estoppel. The doctrine of equitable estoppel applies where, as a result of conduct of a party upon which another person has in good faith relied to his detriment, the acting party is absolutely precluded, both at law and in equity, from asserting rights which might have otherwise existed.

Appeal from the District Court for Hall County: Teresa K. Luther, Judge.

Michael J. Murphy, of Angle, Murphy, Valentino & Campbell, P.C., York, for appellant.

Michael C. Washburn, of Erickson & Sederstrom, P.C., Omaha, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

GERRARD, Justice.

Appellee, Jennifer Friehe, filed an action for declaratory judgment in the district court for Hall County seeking termination of the parental rights of putative father, Robert J. Schaad, to the minor child, Seth Daniel Friehe, and seeking the right to singularly execute and enforce a relinquishment of rights for purposes of adoption. Friehe asserted that since Schaad had not filed a notice of intent to claim paternity within 5 days of the child's birth, as required by Neb.Rev.Stat. §§ 43-104.02 and 43-104.04 (Reissue 1993), Schaad's consent to relinquishment was unnecessary. In response, Schaad challenged the constitutionality of §§ 43-104.02 and 43-104.04 as applied to him, asserting that these statutes, as applied in this case, violate the Equal Protection and Due Process Clauses of the 14th Amendment of the U.S. Constitution and Neb. Const. art. I, § 3. The district court upheld the constitutionality of the statutes as applied in this case and entered an order allowing Friehe to execute a valid relinquishment and consent and to proceed to adoption, without the necessity of Schaad's consent or relinquishment. Schaad appealed to the Nebraska Court of Appeals, and this case was transferred to our docket in order to regulate the caseloads of the appellate courts. We hold that §§ 43-104.02 and 43-104.04 are constitutional as applied in this case and affirm the declaratory judgment of the district court.

FACTUAL BACKGROUND

Jennifer Friehe and Robert J. Schaad began dating in November 1992 and continued their relationship until approximately March or April 1994. The parties engaged in sexual relations at least as late as March 1994, and there is no dispute that Schaad is the father of the child in question. Friehe gave birth to Seth Daniel Friehe the evening of June 15, 1994. Schaad was notified by telephone of the birth on June 16; this was his first knowledge of the pregnancy and resulting birth. Friehe alleges that she herself was unaware of the pregnancy until the day of birth, when she went to the doctor complaining of flu-like symptoms and was informed that she was in labor.

On June 16, the day following the birth, Schaad traveled to the Friehe home where he was informed by Friehe's parents that Friehe was contemplating adoption. Schaad also visited Friehe in the hospital on this day and was again informed that Friehe was considering adoption; however, Friehe expressed a desire that the parties make a joint decision. Schaad did not dispute the possibility of adoption at that time, but requested more time to make a decision. On June 16, Schaad did not go to the hospital to visit the child, but observed the child during feeding while in Friehe's room.

Over the next few days, numerous discussions occurred between Friehe, Schaad, and their respective parents, in which Schaad indicated a desire to raise the child, and Friehe indicated that her first choice remained adoption. Schaad visited the child at the hospital on an infrequent basis. No immediate agreement could be reached by the parties; however, on June 18, the parties reached a consensus to postpone a final decision concerning adoption for at least 1 week and to place the child in temporary foster care in the meantime through Nebraska Children's Home Society, a licensed Nebraska adoption and foster care agency.

On June 19, the child was placed in temporary foster care. Schaad did not file a notice of intent to claim paternity by June 20, 5 days after the child's birth. There is no evidence that either party was aware of the 5-day filing requirement as of June 20. However, on June 21, Schaad contacted an attorney and was informed of the 5-day filing rule, which had already passed. Schaad did not file a notice of intent to claim paternity at that time, but continued to try and work things out with Friehe. One week later, an agreement had still not been reached between the parties, and a final decision was indefinitely postponed. Friehe then left town to visit relatives in Colorado. At least one letter was exchanged between the parties during this time, in which Friehe clearly indicated her preference for adoption.

On July 6, after returning from out of town, Friehe informed Schaad of her decision to place the infant for adoption. Schaad then filed two notices of intent to claim paternity of the infant with the Nebraska Department of Social Services. The first notice, dated July 10, was handwritten, while the second, dated July 14, was executed on the state-prepared form. In late July 1994, the adoption placement agency was changed upon request of the Nebraska Children's Home Society to Lutheran Family Services; however, the foster home of the child has remained unchanged. The child remains in temporary foster care.

On September 14, Friehe filed a petition for declaratory judgment in the district court for Hall County seeking a determination of the respective rights of the parties and asserting that Schaad's rights in regard to the adoption were terminated by his failure to comply with §§ 43-104.02 and 43-104.04. In response, Schaad asserted that these statutes are unconstitutional as applied to him and that Friehe was equitably estopped from claiming the protection of these statutes as a result of fraudulent misrepresentations. Specifically, Schaad alleged that Friehe was equitably estopped from relying on §§ 43-104.02 and 43-104.04 because Friehe intentionally hid the fact of her pregnancy from Schaad and intentionally entered into the agreement on June 18 to postpone the adoption decision in an attempt to prevent Schaad from exercising his right to file a notice on intent to claim paternity within the 5-day period.

The Attorney General was properly served with notice of the constitutional issues in this case. The parties stipulated to submission of the matter on pleadings, depositions, affidavits, exhibits, and written arguments. The district court found the statutes constitutional and applicable, and ordered that a relinquishment executed by Friehe alone would be valid for purposes of the adoption. Schaad appeals from this declaratory judgment.

Schaad alleges that in addition to the oral expression of his intent to raise the child and his attempt to establish a close relationship with the child, he has acted financially responsible in offering to pay Friehe's medical expenses of the birth, although such offer was refused by Friehe's father. This offer of payment is undisputed. Because of these actions, Schaad asserts that termination of his parental rights by operation of §§ 43-104.02 and 43-104.04 would unconstitutionally violate his rights to due process and equal protection under the law.

ASSIGNMENTS OF ERROR

Schaad asserts that the district court erred in (1) not finding §§ 43-104.02 and 43-104.04 violative of a putative father's rights of due process and equal protection guaranteed by the 14th Amendment to the U.S. Constitution and (2) not applying the doctrine of equitable estoppel to prevent the termination of the rights of a putative father where the father has in good faith relied to his detriment on the false and misleading representations of the mother.

STANDARD OF REVIEW

Whether a statute is constitutional is a question of law on which the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision by the trial court. State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996); Kuchar v. Krings, 248 Neb. 995, 540 N.W.2d 582 (1995). When passing on the constitutionality of a statute, an appellate court begins with a presumption of validity, and...