Jesse B. v. Peterson

• Decision Date: 24 June 2016
• Docket Number: No. S–15–870.,S–15–870.
• Citation: 293 Neb. 973,883 N.W.2d 1
• Parties: Jesse B., individually and as Guardian and next friend of Jaelyn B., a minor child, appellant, v. Tylee H. and Douglas J. Peterson, Attorney General of the State of Nebraska, appellees.
• Court: Nebraska Supreme Court

293 Neb. 973

883 N.W.2d 1

Jesse B., individually and as Guardian and next friend of Jaelyn B., a minor child, appellant,

v.Tylee H. and Douglas J. Peterson, Attorney General of the State of Nebraska, appellees.

No. S–15–870.

Supreme Court of Nebraska.

Filed June 24, 2016.

George T. Babcock, of Law Offices of Evelyn N. Babcock, Omaha, and Jennifer Gaughan, of Legal Aid of Nebraska, for appellant.

Shawn D. Renner and Susan K. Sapp, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellee Tylee H.

Heavican, C.J., Wright, Connolly, Miller–Lerman, and Cassel, JJ., and Pirtle and Riedmann, Judges.

Connolly, J.

I. SUMMARY

This appeal is the companion case to In re Adoption of Jaelyn B .¹ In both cases, the appellant, Jesse B., claimed that his child, Jaelyn B., could not be adopted without his consent because he was her legal father. In this appeal, he specifically challenged in the district court the constitutionality of several Nebraska adoption statutes,² including statutes that permitted Jaelyn's adoption without his consent. And he claimed that Nebraska must give full faith and credit to Ohio's paternity determination. The district court postponed deciding his claims until after the county court had issued an adoption decree. Afterward, it concluded that it did not have jurisdiction to grant habeas relief. It determined that Jesse lost standing to challenge Jaelyn's adoption after the county court found that he was not her biological father.

We reverse. Without addressing Jesse's constitutional challenges, we conclude that under Neb. Rev. Stat. 43–1406(1) (Reissue 2008), the district court erred in failing to determine that Nebraska had to give full faith and credit to Ohio's determination of Jesse's paternity. Under Ohio law, Jesse has the right to withhold consent to the adoption of Jaelyn. So, the district court erred in failing to determine that the county court could not order an adoption when Jesse had not consented. We reverse the judgment and remand the cause with instructions for further proceedings on issues relevant to Jaelyn's custody.

II. BACKGROUND

The facts and procedural history of this appeal are fully set out in In re Adoption of Jaelyn B . We summarize them here. In doing so, we apply two judicial notice principles. A court may judicially notice adjudicative facts, which are not subject to reasonable dispute, at any stage of the proceeding.³ In interwoven and interdependent cases, we may examine our own records and take judicial notice of the proceedings.⁴

In April 2013, Jaelyn was born in Ohio. The next day, the mother, Heather K., and Jesse signed in the presence of a notary an “Acknowledgment of Paternity Affidavit.” They affirmed that Jesse was Jaelyn's father. A notice on the form explained that its purpose “is to acknowledge the legal existence of a father and child relationship through voluntary paternity establishment.” The notice explained that Ohio statutes limited the signatories' right to rescind an acknowledgment. The signatories could seek an administrative rescission within 60 days. They could also seek a judicial rescission on limited grounds, but only after the 60–day period and within 1 year of the acknowledgment's becoming final under specified Ohio statutes. Alternatively, a potential signatory could ask for genetic testing at no charge. On June 3, Ohio's office of vital statistics recorded Heather and Jesse as Jaelyn's mother and father on her birth certificate.

In January 2014, Jesse received adoption paperwork from Heather's Nebraska attorney, Kelly Tollefsen. The letter stated that Heather had identified Jesse as a possible biological father and that Heather intended to relinquish Jaelyn for an adoption. It informed him that if he intended to claim paternity and seek custody, he should obtain his own attorney, or he could sign the enclosed forms for relinquishing Jaelyn and consenting to her adoption. Jesse could not afford an attorney and did not obtain legal assistance in Nebraska until later that spring.

In June 2014, Jesse filed a complaint in Lancaster County District Court for a writ of habeas corpus and a declaratory judgment. On July 22, Jesse filed a complaint for custody in the Ohio Court of Common Pleas. Eight days later, on July 30, Jesse filed an objection to Jaelyn's adoption and requested notice of any adoption proceeding for Jaelyn in Douglas County Court. Later, in August 2014, Tylee H., the prospective adoptive parent, filed a petition to adopt Jaelyn in Douglas County Court.

1. Jesse's Complaint

Jesse filed an amended complaint in September 2014 after he discovered that the prospective adoptive parent was Tylee. The named respondents were John Doe, a possible unknown adoptive parent; Tollefsen; Tylee; and Tylee's attorney. He also named the Attorney General as a respondent because he challenged the constitutionality of Nebraska statutes.⁵ Jesse alleged that Tollefsen would not disclose where the adoption proceeding would be filed, but that she did disclose the name of the attorney representing Tylee. Tylee's attorney also would not disclose where the adoption proceeding would be filed.

Jesse asked the district court to declare the following statutes unconstitutional because they violated his constitutional due process and equal protection rights: Sections 43–104, 43,104.01 to 43–104.05, 43–104.12, 43–104.13, 43–104.17, 43–104.22, and 43.104.25. Jesse asserted 11 claims, which we condense to four sets of allegations regarding his statutory and constitutional claims.

First, Jesse alleged that under Ohio law, an acknowledgment of paternity is a legal finding of paternity, and that neither he nor Heather had rescinded the acknowledgment. He claimed that the U.S. Constitution and § 43–1406 required Nebraska to give full faith and credit to Ohio's paternity determination.

Second, Jesse claimed that he was Jaelyn's legal father under Nebraska law. He asserted that under the law of both states, the respondents—Heather, Tylee, and their separate attorneys—had unlawfully restrained Jaelyn of her liberty and kept her from her rightful custodian.

Third, Jesse claimed that he had an established familial relationship with Jaelyn that was constitutionally protected. He alleged that the respondents knew or should have known of this relationship and that the notice he received for a putative father was insufficient and violated his substantive and procedural due process rights.

Fourth, Jesse alleged two equal protection claims resting on marital status and gender: (1) The notice and protections he would have received if he were married were inferior to those he received as an unmarried legal father; and (2) the notice that he received was inferior to the notice that is required for a legal mother.

2. Court Postpones Deciding Jesse's Claims at Tylee's Request

In September 2014, the district court issued a writ of habeas corpus that ordered the respondents to bring Jaelyn to court and respond to these allegations. The respondents moved to dismiss the complaint for lack of subject matter jurisdiction. In October, at Jesse's request, the court dismissed John Doe and the attorneys as respondents. The respondents had also moved to continue the hearing on their motion to dismiss Jesse's complaint until after the county court decided whether to allow an adoption. They alleged that a continuance would promote judicial efficiency and save them costs. They also alleged that genetic testing had shown that another man, Tyler T., was Jaelyn's biological father and that Tyler had waived his parental rights.

At an October 2014 hearing on the respondents' motions to dismiss or postpone the proceedings, Tylee contended that the district court lacked subject matter jurisdiction over Jesse's habeas proceeding. She argued that Jesse could have commenced a proceeding under § 43–104.05 and alleged that he was excused from the filing time limits and entitled to have the court determine whether his consent was required under § 43–104.22. But she argued that even if he had done that, his consent to an adoption was not required under § 43–104.22 because he was not Jaelyn's biological father.

Jesse responded that the putative father statutes did not apply to him and that the father of a child born in another state cannot comply with those statutes. He argued that a habeas proceeding was the correct procedure to challenge Jaelyn's unlawful detention and that Nebraska's adoption statutes were unconstitutional facially and as applied to him. He argued that Tylee had no standing to challenge his legal status as Jaelyn's father. He asked for visitation pending the court's determination. The court took the motions under advisement. The record does not contain a ruling on the respondents' continuance motion, but the court did not issue a judgment until almost a year later.

In February 2015, 4 months after the hearing on Tylee's motion to dismiss or continue the proceedings, the court sustained Tylee's motion to present new evidence. That hearing occurred in April. Tylee submitted three documents from the adoption proceeding in county court: (1) genetic testing results showing that Tyler was Jaelyn's biological father; (2) the county court's order denying Jesse's motion to intervene under § 43–104.22 because he was not Jaelyn's biological father; and (3) the county court's January 2015 adoption decree. Jesse argued that those exhibits were irrelevant to whether the court had jurisdiction over his habeas proceeding. He submitted evidence of his paternity acknowledgment, Jaelyn's birth certificate, and an order from the Ohio Court of Common Pleas showing that he had a custody case pending there since July 2014.

In September 2015, the district court entered its judgment. It concluded that it had jurisdiction over Jesse's complaint. But it nonetheless determined that it did not have jurisdiction to grant habeas relief. It reasoned that under Neb. Rev. Stat. § 43–102 (Reissue 2008), a county court...