Gomez v. Savage

• Decision Date: 26 June 1998
• Docket Number: No. S-97-333,S-97-333
• Citation: 254 Neb. 836,580 N.W.2d 523
• Parties: Martin GOMEZ, on behalf of himself and his minor children, Kassandra B. and Nicholas B., Appellant, v. Karen M. SAVAGE and Timothy L. Savage, Appellees, and Anita A. Bechtold, Intervenor-Appellee.
• Court: Nebraska Supreme Court

Page 523

580 N.W.2d 523

254 Neb. 836

Martin GOMEZ, on behalf of himself and his minor children, Kassandra B. and Nicholas B., Appellant, v. Karen M. SAVAGE and Timothy L. Savage, Appellees and Anita A. Bechtold, Intervenor-Appellee.

No. S-97-333.

Supreme Court of Nebraska.

June 26, 1998.

Syllabus by the Court

1. Habeas Corpus: Child Custody: Appeal and Error. A decision in a habeas corpus case involving custody of a child is reviewed by an appellate court de novo on the record, and in that de novo review, where 2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

the evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

3. Parental Rights: Adoption. In the case of an agency adoption, the relinquishing parent surrenders all rights to the child in favor of the state or a licensed child placement agency.

4. Parental Rights: Adoption. Pursuant to Neb.Rev.Stat. § 43-106.01 (Reissue 1993), when a child is relinquished by written instrument to a licensed child placement agency and the agency has, in writing, accepted full responsibility for the child, the person so relinquishing shall be relieved of all parental duties toward and all responsibilities for such child and have no rights over such child.

5. Adoption. In an agency adoption, if the adoptive parents are unsuitable or decline to go through with the adoption, the agency retains custody over the child until such time as the child is adopted by another family.

6. Adoption. In the case of a private adoption, the child is relinquished directly into the hands of the prospective adoptive parents without interference by the state or a private agency.

7. Parental Rights: Adoption. Pursuant to Neb.Rev.Stat. § 43-111 (Reissue 1993), in an agency adoption, the relinquishing parent's rights are not totally extinguished until the child has been formally adopted by the prospective parents.

8. Parental Rights. A relinquishment of parental rights, given voluntarily, is not revocable.

9. Parental Rights: Adoption. In the absence of threats, coercion, fraud, or duress, a properly executed relinquishment of parental rights and consent to adoption signed by a natural parent knowingly, intelligently, and voluntarily is valid.

10. Evidence: Appeal and Error. Under a de novo review, factual questions are tried de novo on the record and the appellate court does not consider any impermissible or improper evidence.

11. Habeas Corpus: Child Custody: Parental Rights. Where the custody of a minor child is involved in a habeas corpus action, the custody of the child is to be determined by the best interests of the child, with due regard for the superior rights of a fit, proper, and suitable parent.

12. Child Custody: Parental Rights. A court may not properly deprive a parent of the custody of a minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship, or has forfeited that right.

13. Child Custody: Parental Rights. The right of a parent to the custody of a minor child is not lightly to be set aside in favor of more distant relatives or unrelated parties, and a court may not deprive a parent of such custody unless he or she is shown to be unfit or to have forfeited his or her superior right to such custody.

14. Child Custody: Words and Phrases. Parental unfitness involves personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child's well-being.

15. Habeas Corpus: Child Custody: Parental Rights. If the evidence of unfitness is insufficient to justify termination of parental rights in an action maintained under the Nebraska Juvenile Code, similarly deficient evidence of parental unfitness in a habeas corpus proceeding prevents a court from granting child custody to one who is a stranger to the parent-child relationship.

16. Parental Rights: Proof. An order terminating parental rights must be based upon clear and convincing evidence.

17. Child Custody: Parental Rights. A court cannot deprive a parent of the custody of a child merely because the parent has limited resources or financial problems, or is not socially acceptable, nor because the parent's lifestyle is different or unusual.

18. Child Custody: Parental Rights. The fact that a person outside the immediate family relationship may be able to provide greater or better financial care or assistance for a child than can a parent is an insufficient basis to deprive a parent of the right to child custody.

19. Parental Rights. A court can determine that a parent has failed to fulfill parental responsibilities of support and maintenance when no orders for support have been entered.

20. Parental Rights. One need not have physical possession of a child to demonstrate the existence of neglect contemplated by Neb.Rev.Stat. § 43-292(2) (Cum.Supp.1996).

21. Parental Rights. The State is not required to show harm to the children before parental rights can be terminated.

22. Parental Rights. A parent's moral conduct is a valid consideration in a determination of parental fitness.

Peter T. Hoffman, of University of Nebraska Civil Clinical Law Program, Lincoln, for appellant.

Herbert J. Elworth, of Casey & Elworth, Plattsmouth, and Mark R. Widell, Lincoln, for appellees and intervenor-appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

CONNOLLY, Justice.

In this appeal of a habeas corpus action seeking custody of two minor children, we are required to determine the competing interests of the appellant father, Martin Gomez; the intervenor-appellee mother, Anita Bechtold, who relinquished the children for adoption and later revoked the relinquishment; and the proposed adoptive parents, appellees Karen M. Savage and Timothy L. Savage. The district court determined that Bechtold's revocation was valid, that Gomez was unfit to have custody, and that it would be in the best interest of the children to remain in the custody of the Savages. We affirm as modified.

BACKGROUND

Gomez and Bechtold began dating when they were teenagers, and on July 23, 1982, they had a child, Jamie. Although they never married, Gomez and Bechtold began living together in 1984. The couple had two more children, Kassandra, born May 4, 1986, and Nicholas, born July 17, 1989, who are the subjects of this litigation. Gomez was not identified as the father on any of the children's birth certificates. However, the parties do not contest that he is the biological father.

Gomez did not assist with payment for the births of any of Bechtold's children. However, Gomez was present in the birthing room when Nicholas and Kassandra were born. In or about 1986, Gomez left Bechtold and the two children for about 6 months and moved to Kansas. During that time, he provided no support for his children and did not make contact with them or their mother. However, Gomez and Bechtold reunited in December 1987. During the time that Gomez and Bechtold were together, Gomez assisted with the housework, cooking, and care of the children. Gomez also attended parent-teacher conferences, attended school functions, and gave the children birthday gifts.

During the periods of time that Gomez and Bechtold lived together, Gomez partially supported Bechtold and the children with his wages, unemployment income, and a workers' compensation settlement. Bechtold received public assistance and attended cosmetology school for 14 months. Bechtold began a career in hairstyling in 1989.

According to Bechtold, Gomez used alcohol and marijuana during the periods of time they were together, and occasionally used crank, an illegal narcotic. Bechtold further testified that Gomez physically and mentally abused her and was "mean" to her and the children.

Gomez and Bechtold separated on August 10, 1990, after Gomez became involved with another woman whom he subsequently married. Gomez' wife has two children from a previous relationship and has one child fathered by Gomez. Following the separation According to Bechtold, between August 10, 1990, and November 1, 1991, the only support Gomez provided was approximately $50 in cash, along with the purchase of mittens and hats for the children and school supplies for Jamie. Bechtold testified that the total value of support from Gomez during this period was around $150. Gomez contends that he also provided diapers, toys, clothing, and hygienic items. Gomez preferred to provide support by buying items for the children rather than by giving cash to Bechtold because he did not trust her to buy things for the children.

Gomez maintained some contact with his children but provided little financial support. The record is in conflict regarding how much time Gomez spent with his children after the separation. Gomez indicates that he spoke with the children by telephone several days each week and kept the children for overnight stays, weekends, and other visits. Bechtold indicates that Gomez called and visited the children less often than that.

RELINQUISHMENT AND PLACEMENT FOR ADOPTION

During the summer of 1991, Bechtold determined that she could not take care of the children by herself and concluded that she could not rely on Gomez for financial support. Bechtold then decided to place the two younger children for adoption. Bechtold discussed adoption with Gomez, who told her he would not consent to placing the children for adoption. According to Bechtold, Gomez told her that he was saving money in order to get married and buy a house, and would not help Bechtold financially until after he and his new wife settled in. However, Gomez...