Hensman v. Parsons, 89-1244

Citation235 Neb. 872,458 N.W.2d 199
Decision Date20 July 1990
Docket NumberNo. 89-1244,89-1244
PartiesCarolyn HENSMAN, Individually and For Her Minor Children, Kassondra Lea Hensman and Alicia Marie Hensman, Appellant, v. Paul PARSONS and Tamera Parsons, Appellees.
CourtSupreme Court of Nebraska

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 the Supreme Court de novo on the record, provided, where credible evidence is in conflict on a material issue of fact, the Supreme 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.

2. Appeal and Error. An issue not properly presented to and passed upon by the trial court may not be raised on appeal.

3. Parental Rights: Adoption: Proof. The burden is on the natural parent challenging the validity of a relinquishment to prove that it was not voluntarily given.

4. 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.

5. Contracts. Whether a document is ambiguous is a question of law initially determined by a trial court.

6. Judgments: Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review.

7. Contracts: Words and Phrases. Ambiguity exists in an instrument when a word, phrase, or provision in the instrument has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.

8. Contracts: Intent: Appeal and Error. When a document is ambiguous, it is for the trier of fact to determine the intent of the parties from all the facts and circumstances. Such findings will be upheld on appeal unless they are clearly erroneous.

9. Child Custody. Under Nebraska law, the best interests of the child must always be considered in determining matters of child custody.

10. HParental Rights: Adoption: Proof. A natural parent seeking to revoke a valid relinquishment has the burden of showing that the best interests of the child require revocation.

Audrey S. Ellison, Omaha, for appellant.

Dennis E. Martin, Omaha, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Carolyn Hensman appeals an order of the district court for Douglas County discharging a writ of habeas corpus under which she sought to have the two children she had relinquished for adoption returned to her. The district court concluded that Hensman had permanently relinquished her parental rights to the children. We affirm.

A decision in a habeas corpus case involving the custody of a child is reviewed by the Supreme Court de novo on the record, D.S. v. United Catholic Soc. Servs., 227 Neb. 654, 419 N.W.2d 531 (1988); Gaughan v. Gilliam, 224 Neb. 836, 401 N.W.2d 687 (1987). In a de novo review of a record, where credible evidence is in conflict on a material issue of fact, the Supreme 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. See In re Estate of Widger, 235 Neb. 179, 454 N.W.2d 493 (1990).

On Saturday, June 3, 1989, appellant contacted the appellees, Paul and Tamera Parsons, inquiring whether they were interested in adopting her 6- and 17-month-old daughters. Hensman stated that she needed an answer by the next day, but she agreed to let the Parsonses have the children overnight to help them reach their decision. On Sunday, June 4, 1989, the appellees told Hensman that they wished to adopt the children but wanted to contact an attorney to assure that the adoption would be permanent. Appellant agreed to the Parsonses' condition.

On June 5, 1989, at the office of appellees' attorney, Hensman executed two separate consents and relinquishments for the adoption of her daughters by the Parsonses. Thereafter, having sold some of her belongings, Hensman left the State of Nebraska, spending some time in Minneapolis, Minnesota, as well as in Des Moines, Iowa. In early July 1989, appellant called the Parsonses and requested the return of the children. The Parsonses refused.

Hensman petitioned the trial court for a writ of habeas corpus, contending that (1) she did not fully understand the significance of the relinquishments, (2) she could revoke the relinquishments because a decree of adoption had not yet been entered, and (3) at the time of the execution of the relinquishments, she was under the effect of antidepressant medication and undergoing great mental anguish due to personal difficulties.

At the hearing on appellant's petition, Parsonses' attorney, who was also their counsel at trial, testified that appellant reviewed the relinquishments and, prior to execution, the attorney questioned Hensman as to whether she understood the contents of the relinquishments and whether she understood that execution of the documents was a permanent relinquishment of her children. The attorney testified that Hensman said she had read the relinquishments, that she understood them and that it was her desire to execute them, and that she understood the serious nature of her actions.

Appellant admitted that she understood she was giving custody of her children to the Parsonses. Hensman contended, however, that no one explained the relinquishments to her. She claimed she only gave temporary custody to the Parsonses and could change her mind. Hensman also asserted that the relinquishments were not entered into voluntarily and knowingly because, at the time of the relinquishments, she was depressed, under a lot of stress, and was taking medication. Hensman conceded that the word "temporary" did not appear in the relinquishments.

After the hearing, the trial court found that the relinquishments were ambiguous because on the one hand, they gave the impression that they were permanent, but on the other hand, they stated that the relinquishments were irrevocable upon the entry of a decree of adoption. Despite the ambiguity, the trial court concluded from the facts of the case that appellant knew that the relinquishments were taking place and that they were for the purpose of adoption by the Parsonses, that Hensman understood the relinquishments to be absolute and permanent, and that having this knowledge, she knowingly and voluntarily executed the relinquishments. The trial court found that the relinquishments complied with Nebraska statutes. The trial court also found that appellant's ability to understand the events surrounding the execution of the relinquishments was not impaired by medication and that, despite evidence of emotional stress, appellant executed the relinquishments knowingly and voluntarily. The trial court further determined that it was in the best interests of the children to adhere to the terms of the relinquishments.

On appeal, Hensman contends the trial court erred (1) in finding that the relinquishments complied with Neb.Rev.Stat. § 43-106.02 (Reissue 1988); (2) in failing to find that appellant had revoked the relinquishments pursuant to Nebraska law; (3) in finding that appellant knew the relinquishments were absolute and permanent; (4) in finding that appellant knowingly and voluntarily executed the relinquishments; (5) in finding that the relinquishments were valid while also finding that they were ambiguous; (6) in receiving the testimony of appellees' attorney, in violation of DR 5-102 of the Code of Professional Responsibility; (7) in utilizing the best interests standard for terminating appellant's parental rights; and (8) in finding that adherence to the relinquishments was in the best interests of the minor children.

Hensman first claims the trial court erred in concluding that the relinquishments complied with all the statutory requirements for a valid relinquishment. Specifically, appellant contends that the requirements of § 43-106.02 were not met because she was never presented with nonconsent forms. A review of the record reveals that the issue of presentation or nonpresentation of nonconsent forms was not presented to the trial court. An issue not properly presented to and passed upon by the trial court may not be raised on appeal. Beaver Lake Assn. v. Sorensen, 231 Neb. 75, 434 N.W.2d 703 (1989). Appellant's first assignment of error is not properly before this court.

Hensman's second through fourth assignments of error are inextricably related and will be considered together. In sum, appellant argues that the trial court erred in finding that she executed the relinquishments voluntarily and knowingly and that she knew they were absolute and permanent. Hensman also contends that the trial court erred in failing to find that she had revoked the relinquishments.

The burden is on the natural parent challenging the validity of a relinquishment to prove that it was not voluntarily given. Gaughan v. Gilliam, 224 Neb. 836, 401 N.W.2d 687 (1987). 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. Id.

Hensman claims that a number of forces impacted upon her decision to sign the relinquishments so as render her acts involuntary and the relinquishments invalid. Appellant argues (1) that she was in an unsettled state of mind and suffering from depression, (2) that she was being treated by a physician for premenstrual syndrome, and (3) that the Parsonses caused the relinquishments to be executed in haste.

Although appellant may have been in a somewhat unsettled state of mind and suffering from depression at the time of the relinquishments, her assertion...

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