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Maria T., appellant, v. Jeremy

and Jamie S., appellee

___ N.W.2d ___

Filed July 20, 2018. No. S-17-925.

1. Habeas Corpus: Child Custody: Appeal and Error. A decision in a 

habeas corpus case involving the custody of a child is reviewed by an 

appellate court de novo on the record.

2. Habeas Corpus: Appeal and Error. Whether the allegations in an 

application for a writ of habeas corpus are sufficient to warrant discharge is a matter of law that an appellate court reviews de novo.

3. Habeas Corpus: Constitutional Law. The writ of habeas corpus derives 

from common law and is guaranteed by the Nebraska Constitution.

4. Habeas Corpus. The function of the application for a writ of habeas 

corpus is to procure the issuance of the writ, and ordinarily when this is 

done, the application is functus officio for procedural purposes.

5. Habeas Corpus: Courts. Courts are cautioned in habeas proceedings to 

follow the traditional procedure illustrated by the habeas corpus statutes 

rather than make up their own procedure.

6. Habeas Corpus: Child Custody. The writ of habeas corpus has been 

extended to, and may be used in, controversies regarding the custody 

of infants.

7. ____: ____. In the case of a writ of habeas corpus 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.

8. ____: ____. When habeas corpus is used in child custody cases, such 

proceedings are governed by considerations of expediency and equity 

and should not be bound by technical rules of practice.

9. Habeas Corpus. In a habeas corpus proceeding, before a hearing on the 

merits, the person to whom the writ is directed makes a response to the 

writ and not, strictly speaking, to the relator’s application.

10. Habeas Corpus: Child Custody. A habeas corpus proceeding involving the custody of a child is a proceeding in rem, in which the res is the 

child and its custody.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/31/2018 01:09 AM CDT
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11. Habeas Corpus: Child Custody: Jurisdiction. After the court’s jurisdiction has been invoked by a petition for habeas corpus seeking the 

custody of children, the children become wards of the court and their 

welfare lies in the hands of the court.

12. Habeas Corpus. The proper method for attacking the sufficiency of 

the application for a writ of habeas corpus is by a motion to quash 

the writ.

13. Habeas Corpus: Child Custody. The procedure set forth in Neb. Rev. 

Stat. §§ 29-2801 through 28-2824 (Reissue 2016 & Supp. 2017) applies 

to child custody habeas proceedings.

14. Habeas Corpus: Pleadings. The motion to quash admits all ultimate 

facts well pleaded in a relator’s application, as distinguished from conclusions of law therein, and when thus tested it is ascertained that the 

allegations thereof are not sufficient to warrant discharge, the motion 

should be sustained and the writ of habeas corpus dissolved or quashed.

15. Adoption: Parent and Child: Parental Rights. Agreements in adoption proceedings allowing contact between an adopted child and the 

child’s biological parents require court approval to be enforceable, and 

even if approved, noncompliance may not be the basis for setting aside 

a particular adoption, or revoking a relinquishment to the Department of 

Health and Human Services.

16. Statutes: Legislature: Intent. A court gives statutory language its 

plain and ordinary meaning and will not look beyond the statute to 

determine the legislative intent when the words are plain, direct, and 

unambiguous.

17. Adoption: Statutes: Legislature: Intent. There is no ambiguity in the 

Legislature’s stated intent to encompass within Neb. Rev. Stat. § 43-163 

(Reissue 2016) all written or oral agreements regarding communication 

or contact after an adoption, when the prospective adoptee is in the custody of the Department of Health and Human Services.

18. Appeal and Error. Appellate courts do not generally consider arguments and theories raised for the first time on appeal.

19. Constitutional Law: Appeal and Error. Except in the most unusual 

cases, for a question of constitutionality to be considered on appeal, it 

must have been properly raised in the trial court. If not so raised, it will 

be considered to have been waived.

20. Constitutional Law: Rules of the Supreme Court: Statutes. Strict 

compliance with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is necessary 

whenever a litigant challenges the constitutionality of a statute, regardless of how that constitutional challenge may be characterized.

Appeal from the District Court for Lancaster County: Sus

I. Strong, Judge. Affirm
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David V. Chipman, of Monzón, Guerra & Associates, for 

appellant.

Steffanie J. Garner Kotik, of Kotik & McClure Law, for 

appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, F

Papik, JJ., and Dobrovolny, District Jud

Dobrovolny, District Judg

NATURE OF CASE

The district court dismissed on the pleadings a biological 

mother’s petition for habeas corpus challenging the adoptive parents’ custody over the child. The mother alleged in 

the petition that her relinquishment of parental rights to the 

Department of Health and Human Services (DHHS) and consent to adoption had been obtained through coercion, false 

pretenses, or fraud. She attached a communication and consent 

agreement to the petition and alleged that the biological parents 

had failed to allow her to have contact with the child. The district court concluded the petition did not state a claim, because 

Neb. Rev. Stat. § 43-164 (Reissue 2016) provides that failure 

to comply with a court-approved communication or contact 

agreement shall not be grounds for setting aside or revoking 

the relinquishment, the consent to adoption, or the adoption 

decree. We affirm.

BACKGROUND

Petiti

Maria T. filed a petition for writ of habeas corpus on May 

2, 2017, naming Jeremy S. and Jamie S. as respondents. 

She alleged that she was the biological mother of a minor 

child, born in 2012, who was unlawfully restrained by Jeremy 

and Jamie.

In paragraph IV, Maria alleged that the restraint was illegal, 

because her “consent to adoption and/or voluntary relinquishment was obtained through coercion and/or false pretenses 
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and/or fraud, which invalidates such relinquishment and/or 

consent.”

In paragraph V, Maria alleged that her relinquishment was 

conditioned upon the retention of some “parental rights and 

any relinquishment or consent given by [Maria] is therefore 

invalid.” In this paragraph, she stated that she was attaching a “‘Communication and Contact Agreement’” signed by 

the parties.

In paragraph VI, Maria alleged that Jeremy and Jamie had 

failed to allow her to have contact with the child after having 

made promises and representations that they would.

Maria asked that the court find the relinquishment was 

invalid and revoked. She asked that the court take custody 

of the child and determine whether the child’s best interests 

would be served by returning the child to Maria.

The relinquishment was not attached to the petition, but 

Maria did attach the agreement signed by Maria, Jeremy, 

and Jamie.

Though the petition did not set forth whether the child was 

in the custody of DHHS at the time of the relinquishment, the 

agreement set forth that Jeremy and Jamie were the child’s 

foster parents and that they would be entering into a foster 

parent adoption after Maria relinquished her parental rights 

to DHHS.

The agreement set forth that Jeremy and Jamie were to communicate with Maria regarding the child’s welfare and allow 

periodic contact between Maria and the child. However, the 

agreement also set forth that the parties understood that “this 

agreement is subject to the approval of the court having jurisdiction over the adoption proceedings.”

Further, in the agreement, the parties set forth their understanding that

the failure to comply with the terms of the order as pursuant to Section 43-163 shall not be grounds for setting aside 

an adoption decree, for revocation of a written consent 

for adoption after the consent has been approved by the 

court having jurisdiction over the adoption proceedings, 
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or for revocation or relinquishment of parental rights 

after the relinquishment has been accepted in writing by 

[DHHS] as provided in Section 43-106.01.

Instead, according to the agreement, any order pursuant to 

Neb. Rev. Stat. § 43-163 (Reissue 2016) could be enforced by 

civil litigation.

Neb. Rev. Stat. § 43-106.01 (Reissue 2016) provides:

When a child shall have been relinquished by written 

instrument, as provided by sections 43-104 and 43-106, 

to [DHHS] or 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. Nothing contained in this section shall impair the right of such child 

to inherit.

The petition did not specifically allege whether the court 

having jurisdiction over the child’s adoption had approved the 

communication and contact agreement.

Hearing on Motion to D

Jeremy and Jamie moved to dismiss for failure to state a 

claim. Their motion is not in the record. At the hearing on 

the motion to dismiss, Jeremy and Jamie offered three exhibits into evidence. Maria objected on the ground that it was a 

hearing on a motion to dismiss “and you’re not supposed to 

consider matters outside the pleading, otherwise it becomes a 

summary judgment.” She did not challenge the authenticity of 

the documents in the exhibits or object on any other grounds. 

Jeremy and Jamie’s attorney responded that she believed the 

evidence was appropriately offered in support of her motion to 

dismiss, because the exhibits contained documents recited in 

Maria’s petition.

The court asked Maria if she would “like a time to submit 

evidence in this matter.” Maria said she would not. But the 

court did not explicitly state it had changed the status of the 

motion. The parties proceeded with argument without the 
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court’s ruling on the offer of exhibits and apparently under 

the assumption that the court was considering a motion 

to dismiss.

Jeremy and Jamie’s attorney indicated her understanding 

that the allegations in Maria’s petition were based on Jeremy 

and Jamie’s alleged failure to comply with the agreement. At 

no point did Maria’s attorney respond that her allegations of 

“coercion and/or false pretenses and/or fraud” were based on 

anything other than Jeremy and Jamie’s failure to comply with 

the agreement. Maria’s attorney did not ask the court for leave 

to amend the petition.

At the conclusion of the hearing, the court received the 

exhibits into evidence. Exhibit 1 consists of Maria’s relinquishment to DHHS, her consent form, and DHHS’ acceptance of 

her relinquishment. Exhibit 1 reflects that Maria voluntarily 

relinquished to DHHS her parental rights over the child on 

June 12, 2015. Exhibit 2 is the agreement that was attached to 

the petition. Exhibit 3 is the bill of exceptions for the adoption 

hearing. The bill of exceptions reflects that on May 13, 2016, 

the separate juvenile court approved the adoption of the child 

by Jeremy and Jamie, but explicitly did not approve the communication and contact agreement for the reason that it was not 

in the child’s best interests.

District Court’s Or

The district court dismissed the petition for failure to state a 

claim and alternatively addressed granting summary judgment 

in favor of Jeremy and Jamie.

In the court’s analysis on the motion to dismiss, the court 

stated that it did not consider any of the exhibits. But the 

court considered the attached agreement as part of the allegations of the petition. The agreement, the court said, confirmed 

that the child was adopted by way of a foster parent adoption wherein Maria unconditionally relinquished her parental 

rights to DHHS.

The court concluded that Maria had failed to state a claim, 

because she had failed to allege that the agreement had been 
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approved by the court. Alternatively, after citing to both 

§ 43-164 and Neb. Rev. Stat. § 43-166(6) (Reissue 2016), the 

court concluded that “neither the statutes in effect at the time, 

nor the case law, afford [Maria] the opportunity to allege fraud, 

duress or coercion on the basis of the Communication and 

Contact Agreement entered into between the parties.”

Next, the court set forth an analysis regarding “if this 

Court were to treat [Jeremy and Jamie’s] motion as a motion 

for summary judgment rather than a motion to dismiss.” The 

court found no genuine issue as to the fact that the court never 

approved the agreement. Therefore, the court reasoned, the 

agreement could not provide any basis for Maria’s allegation 

that the relinquishment was procured through fraud, duress, 

and coercion. Even if the agreement had been approved, the 

court stated that as a matter of law, Jeremy and Jamie’s failure 

to comply with the agreement’s terms could not be used as 

a basis for invalidating the relinquishment and setting aside 

the adoption.

In its conclusion, the court set forth in the order that it was 

sustaining Jeremy and Jamie’s motion to dismiss. The court 

ordered the case dismissed with prejudice. Maria appeals.

ASSIGNMENTS OF ERROR

Maria assigns that the district court erred in (1) granting 

Jeremy and Jamie’s motion to dismiss and (2) finding in the 

alternative that Jeremy and Jamie were entitled to summary 

judgment.

STANDARD OF REVIEW

[1] A decision in a habeas corpus case involving custody of a 

child is reviewed by an appellate court de novo on the record.1

[2] Whether the allegations in an application for a writ of 

habeas corpus are sufficient to warrant discharge is a matter of 

law that an appellate court reviews de novo.2

1 Monty S. v. Jason W., 290 Neb. 1048, 863 N.W.2d 484 (2015).

2 See State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016).
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ANALYSIS

As a threshold matter, we clarify the procedural rules applicable to an application for a writ of habeas corpus in a child 

custody matter. For the reasons that follow, we conclude that 

the court and the parties did not follow the correct procedure 

for a habeas proceeding. Nevertheless, the court did not err in 

its ultimate determination that Maria failed to allege facts that 

would establish that Jeremy and Jamie were not entitled to 

sole custody of Maria’s biological child.

[3] The writ of habeas corpus derives from common law3

and is guaranteed by the Nebraska Constitution in article I, 

§ 8, which provides that “[t]he privilege of the writ of habeas 

corpus shall not be suspended.” Neb. Rev. Stat. §§ 29-2801 

through 29-2824 (Reissue 2016 & Supp. 2017) set forth certain procedures for a habeas corpus proceeding. The statutory 

procedure set forth in §§ 29-2801 through 29-2824 appears to 

have largely codified the traditional procedure under common 

law for the writ.4 We have said that the Nebraska Constitution 

provides for the remedy of habeas corpus, while the procedure for the writ is governed by statute.5

 It is a special 

civil proceeding providing a summary remedy to persons illegally detained.6

The first step in order to initiate a habeas proceeding is 

for “any person,” who “is or shall be confined in any jail 

. . . or shall be unlawfully deprived of his or her liberty,” to 

“make application, either by him or herself or by any person on his or her behalf.”7

 If, “by oath or affirmation,” it 

appears in the application that “the person so imprisoned or 

3 See, e.g., In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 

840 (1944).

4 See, e.g., Brandon L. Garrett, Habeas Corpus and Due Process, 98 

Cornell L. Rev. 47 (2012).

5 Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016).

6 Id.

7 § 29-2801.
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detained is imprisoned or detained without any legal authority 

. . . it shall be [the judge’s] duty forthwith to allow a writ of 

habeas corpus.”8

Before anything else, the court must determine, sua sponte 

and based on the allegations in the application, if the writ 

should issue.9 We have explained that if the relator shows by 

the facts alleged in the application for the writ that the relator 

is not entitled to relief, then the writ should be denied and the 

application dismissed, and that order may be appealed.10 In 

contrast, when the relator sets forth facts which, if true, would 

entitle the relator to discharge, the writ is a matter of right 

and the relator should be produced before the court.11 Habeas 

corpus is a Latin term that, translated literally, means “‘“that 

you have the body,”’”12 and the writ commands that the person 

holding the body of the person allegedly illegally detained produce the body on the day specified and submit to and receive 

whatever the court shall consider in the relator’s behalf.13

Thus, pursuant to §§ 29-2802 and 29-2803, when a judge 

issues the writ, it must be obeyed, or resistance thereto made 

in the regular manner.14 The person detained and named in the 

writ must be brought before the court on the day specified, 

and while the hearing and final disposition are pending, the 

person allegedly illegally detained will be subject to a court 

order for safekeeping or detention, as the nature of the case 

8 Id.

9 See Hennings v. Chandler, 229 Ill. 2d 18, 890 N.E.2d 920, 322 Ill. Dec. 1 

(2008) (and discussion of cases therein).

10 See In re Application of Tail, Tail v. Olson, supra note 3. See, also, e.g., 

Johnson v. Gage, 290 Neb. 136, 858 N.W.2d 837 (2015).

11 In re Application of Dunn, 150 Neb. 669, 35 N.W.2d 673 (1949).

12 Sanders v. Frakes, supra note 5, 295 Neb. at 379, 888 N.W.2d at 519.

13 See, e.g., Click v. Click, 98 W. Va. 419, 127 S.E.2d 194 (1925); Black’s 

Law Dictionary 825 (10th ed. 2014).

14 See Nebraska Children’s Home Society v. State, 57 Neb. 765, 78 N.W. 267 

(1899).
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may require.15 “Neither ministerial officer nor private citizen 

can be permitted to ignore its mandate because he [or she] 

may think the judge allowed it on insufficient grounds.”16

Section 29-2817 describes that before the hearing on the 

underlying merits, the person to whom the writ is directed 

shall file a “return,” explaining whether he or she has the 

relator under his or her “custody or power, or under restraint” 

and the authority for such custody, power, or restraint. Under 

§ 29-2819, the “return” is treated differently depending upon 

whether the person detained is in custody under any warrant 

or commitment in pursuance of law or is instead restrained 

of liberty by any alleged private authority. In the case of 

an alleged private authority, “the return of the writ shall be 

considered only as a plea of the facts therein set forth, and 

the party claiming the custody shall be held to make proof of 

such facts.”17

[4] The habeas statutes do not describe by what means, 

if any, the respondent may challenge the sufficiency of the 

relator’s application. But we have held that before filing a 

response, the respondent may challenge the sufficiency of the 

statements in the application of the relator by filing a motion 

to quash or to “dissolve” the writ.18 This is consistent with traditional common-law habeas corpus procedure.19 The function 

of the application is to procure the issuance of the writ, and 

15 See §§ 29-2802 and 29-2822. See, also, § 29-2806.

16 Nebraska Children’s Home Society v. State, supra note 14, 57 Neb. at 770, 

78 N.W. at 269.

17 § 29-2819.

18 See Sedlacek v. Greenholtz, 152 Neb. 386, 388, 41 N.W.2d 154, 156 

(1950). See, also, Case v. State, 177 Neb. 404, 129 N.W.2d 107 (1964), 

quoting Sedlacek v. Hann, 156 Neb. 340, 56 N.W.2d 138 (1952), vacated 

on other grounds 381 U.S. 336, 85 S. Ct. 1486, 14 L. Ed. 2d 422 (1965); 

In re Application of Dunn, supra note 11.

19 See, Kennedy v. Walker, 135 Conn. 262, 63 A.2d 589 (1948); Com. ex 

rel. Margiotti, Aplnt. v. U. Tr. Co. et al., 327 Pa. 497, 194 A. 661 (1937); 

Garrett, supra note 4.
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ordinarily when this is done, the application is functus officio 

for procedural purposes.20

[5] As such, when the proper procedure is followed, the 

application has served its purpose by obtaining the writ and, 

by the time the respondent is on notice, the application is 

no longer in effect such that it could be subject to a motion 

to dismiss for failure to state a claim. For this reason, we 

have said that a demurrer is not a motion usually associated 

with writs of habeas corpus.21 Courts are cautioned in habeas 

proceedings to follow the traditional procedure illustrated 

by the habeas corpus statutes rather than make up their own 

procedure.22

[6-8] The traditional procedure described above applies 

equally to child custody habeas proceedings. Since 1890,23

we have recognized, “‘“[T]he writ of habeas corpus has been 

extended to, and may be used in, controversies regarding the 

custody of infants.”’”24 This extension occurred under the 

English common law before the establishment of our state.25

In the case of a writ of habeas corpus 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.26

20 See In re Application of Tail, Tail v. Olson, supra note 3.

21 See Rehbein v. Clarke, 257 Neb. 406, 598 N.W.2d 39 (1999).

22 See O’Neal v. State, 290 Neb. 943, 863 N.W.2d 162 (2015) (Cassel, J., 

concurring).

23 See Giles v. Giles, 30 Neb. 624, 46 N.W. 916 (1890).

24 State ex rel. Cochrane v. Blanco, 177 Neb. 149, 152, 128 N.W.2d 615, 617 

(1964); Lung v. Frandsen, 155 Neb. 255, 51 N.W.2d 623 (1952); Hanson 

v. Hanson, 150 Neb. 337, 34 N.W.2d 388 (1948).

25 See, e.g., Sarah Abramowicz, Note, English Child Custody Law, 1660-

1839: The Origins of Judicial Intervention in Paternal Custody, 99 

Colum. L. Rev. 1344 (1999); Eric M. Freedman, Habeas Corpus in Three 

Dimensions, Dimension I: Habeas Corpus as a Common Law Writ, 46 

Harv. C.R.-C.L.L. Rev. 591 (2011).

26 See Christopherson v. Christopherson, 177 Neb. 414, 129 N.W.2d 113 

(1964).
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Further, we have repeatedly recognized, as was acknowledged under common law,27 that when habeas corpus is used 

in child custody cases, such proceedings are governed by 

considerations of expediency and equity and should not be 

bound by technical rules of practice.28 But while there may 

be some distinctions in child custody habeas proceedings 

from prisoner habeas proceedings as to the treatment of the 

underlying merits, it does not follow that the traditional writ 

procedures outlined in our habeas statutes do not govern 

applications for writs of habeas corpus when child custody 

is involved.

[9-11] In In re Application of Tail, Tail v. Olson,

29 a prisoner habeas case, we considered the nature of habeas corpus 

proceedings, both involving prisoners and child custody. We 

cited to §§ 29-2802 and 29-2817, and explained that before a 

hearing on the merits, the person to whom the writ is directed 

makes a response to the writ and not, strictly speaking, to 

the relator’s application. In In re Application of Tail, Tail, we 

observed that we previously held a habeas corpus proceeding involving the custody of a child is a proceeding in rem, 

in which the res is the child and its custody.30 Once the writ 

issues, “[a]fter the court’s jurisdiction has been invoked by a 

petition for habeas corpus seeking the custody of children, the 

children become wards of the court and their welfare lies in the 

hands of the court.”31

27 See Annot., 4 A.L.R.3d 1277, § 1[c] (1965).

28 McCormick v. State, 218 Neb. 338, 354 N.W.2d 160 (1984); Walker v. 

Gehring, 172 Neb. 398, 109 N.W.2d 724 (1961); State ex rel. Hamilton 

v. Boiler, 159 Neb. 458, 67 N.W.2d 426 (1954); Lung v. Frandsen, supra

note 24; Hanson v. Hanson, supra note 24.

29 See In re Application of Tail, Tail v. Olson, supra note 3, citing Terry v. 

State, 77 Neb. 612, 110 N.W. 733 (1906).

30 Id.

31 Osterholt v. Osterholt, 173 Neb. 683, 685, 114 N.W.2d 734, 736 (1962). 

See, also, Hanson v. Hanson, supra note 24.
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[12] In Nebraska Children’s Home Society v. State,

32 a 

child custody habeas case, we again cited to our habeas statutes, to what is now § 29-2804. And we applied the principle 

that the proper method for attacking the sufficiency of the 

application for a writ of habeas corpus is by a motion to 

quash the writ.33 Several other child custody habeas cases in 

Nebraska appear to have followed the traditional writ procedure set forth in the habeas statutes, albeit without citing to 

the statutory scheme.34

We recognize that our case law concerning child custody 

habeas proceedings has not always been consistent. For the 

most part, our cases have failed to cite to §§ 29-2801 through 

29-2824.35 Furthermore, our child custody habeas case law 

appears to have oftentimes treated the application for a writ of 

habeas corpus as if it were a petition setting forth a cause of 

action, to which the respondents would file an answer, with the 

32 Nebraska Children’s Home Society v. State, supra note 14.

33 Id.

34 See, Reynolds v. Green, 232 Neb. 60, 439 N.W.2d 486 (1989), overruled 

on other grounds, Gomez v. Savage, 254 Neb. 836, 580 N.W.2d 523 

(1998); Walker v. Gehring, supra note 28; State v. Porter, 78 Neb. 811, 

112 N.W. 286 (1907); Terry v. Johnson, 73 Neb. 653, 103 N.W. 319 

(1905); Nebraska Children’s Home Society v. State, supra note 14; Janet 

K. v. Kevin B., 5 Neb. App. 169, 556 N.W.2d 270 (1996).

35 See, e.g., Brett M. v. Vesely, 276 Neb. 765, 757 N.W.2d 360 (2008); 

Gomez v. Savage, supra note 34; Uhing v. Uhing, 241 Neb. 368, 488 

N.W.2d 366 (1992); L.G.P. v. Nebraska Dept. of Soc. Servs., 239 Neb. 

644, 477 N.W.2d 571 (1991); Friedrichsen v. Koehn, 216 Neb. 628, 

344 N.W.2d 672 (1984); Marcus v. Huffman, 187 Neb. 798, 194 N.W.2d 

221 (1972); Hausman v. Shields, 184 Neb. 88, 165 N.W.2d 581 (1969); 

Gray v. Hartman, 181 Neb. 590, 150 N.W.2d 120 (1967); State ex rel. 

Cochrane v. Blanco, supra note 24; Osterholt v. Osterholt, supra note 31;

Lakey v. Gudgel, 158 Neb. 116, 62 N.W.2d 525 (1954); Barnes v. Morash, 

156 Neb. 721, 57 N.W.2d 783 (1953); Lung v. Frandsen, supra note 24; 

Hanson v. Hanson, supra note 24; In re Application of Schwartzkopf, 149 

Neb. 460, 31 N.W.2d 294 (1948); State v. Bryant, 95 Neb. 129, 145 N.W. 

266 (1914); Clarke v. Lyon, 82 Neb. 625, 118 N.W. 472 (1908); Norval v. 

Zinsmaster, 57 Neb. 158, 77 N.W. 373 (1898).
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writ issuing or not issuing at the close of all the proceedings 

rather than at the beginning.36 Contrary to our cases stating 

that a motion to quash is the proper procedure to challenge the 

sufficiency of the application for the writ, in Christopherson v. 

Christopherson,

37 for example, we applied the civil procedure 

statutes to determine that the respondent’s demurrer should 

be considered a motion to dismiss. We ultimately held that 

the motion to dismiss was improper insofar as it attempted to 

obtain dismissal by means of factual allegations as yet untested 

in court.38

[13] Thus, we clarify here that the procedure set forth 

in §§ 29-2801 through 29-2824 applies to child custody 

habeas proceedings. In Mayfield v. Hartmann,

39 we addressed 

a habeas proceeding involving civil commitment and said that 

we have uniformly applied rules limiting collateral attacks by 

habeas corpus to void judgments to “both civil and criminal 

cases alike.” We likewise find that the procedure for child 

custody and prisoner custody habeas proceedings should be 

uniform. Even if §§ 29-2801 through 29-2824 did not directly 

control, the traditional common-law procedures would not 

be different.40 The procedural mechanism to bring the child 

into court quickly and procure the court’s temporary custody 

36 See, e.g., Brett M. v. Vesely, supra note 35; Gomez v. Savage, supra note 

34; Uhing v. Uhing, supra note 35; L.G.P. v. Nebraska Dept. of Soc. Servs., 

supra note 35; Friedrichsen v. Koehn, supra note 35; Marcus v. Huffman, 

supra note 35; Gray v. Hartman, supra note 35; Osterholt v. Osterholt, 

supra note 31; Lakey v. Gudgel, supra note 35; Hanson v. Hanson, supra

note 24; In re Application of Schwartzkopf, supra note 35; State v. Bryant, 

supra note 35; Clarke v. Lyon, supra note 35.

37 Christopherson v. Christopherson, supra note 26.

38 See id.

39 Mayfield v. Hartmann, 221 Neb. 122, 125, 375 N.W.2d 146, 149 (1985), 

citing Schleuter v. McCuiston, 203 Neb. 101, 277 N.W.2d 667 (1979); 

State ex rel. Casselman v. Macken, 194 Neb. 806, 235 N.W.2d 867 (1975); 

and Sedlacek v. Hann, supra note 18.

40 See Freedman, supra note 25.
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over that child’s welfare through issuance of a writ pending 

a custody hearing protects the interests of the child and the 

parents alike.

Accordingly, a motion to dismiss under Neb. Ct. R. Pldg. 

§ 6-1112(b) should play no role in a child custody habeas proceeding. Instead, a challenge should be made to the writ, if it is 

issued, by means of a motion to quash.

That was not the procedure followed below. The court erred 

by failing to determine sua sponte whether to issue the writ, 

from which could have been followed a motion to quash rather 

than a motion to dismiss under § 6-1112(b). We will nevertheless review the court’s ultimate conclusion that the allegations 

in the application were insufficient to state a claim challenging the lawfulness of the restraint of the child in Jeremy and 

Jamie’s custody. In Rehbein v. Clarke,

41 we similarly considered whether the court had properly dismissed the application 

for writ of habeas corpus, even though we held that the court 

had failed to follow proper procedure when it entertained a 

demurrer instead of a motion to quash. The question regardless 

was whether the allegations of the application were sufficient 

to warrant discharge.42

In accordance with Rehbein, we will examine whether 

Maria’s allegations were sufficient to warrant the child’s discharge from Jeremy and Jamie’s custody, but we will not 

address the mandate in § 6-1112(b) regarding conversion of 

a motion to dismiss into a motion for summary judgment. 

Habeas corpus proceedings, like postconviction proceedings, 

are not governed by the Nebraska Court Rules of Pleading in 

Civil Cases.43 The mandate in § 6-1112(b) is thus inapplicable 

to habeas proceedings. Further, we can determine, without 

considering the exhibits admitted at the hearing, whether Maria 

failed to allege facts warranting relief.

41 Rehbein v. Clarke, supra note 21.

42 See id.

43 See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
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[14] The motion to quash admits all ultimate facts well 

pleaded in a relator’s application, as distinguished from conclusions of law therein, and when thus tested it is ascertained that 

the allegations thereof are not sufficient to warrant discharge, 

the motion should be sustained and the writ of habeas corpus 

dissolved or quashed.44 Maria alleged in her application that 

the relinquishment was “conditioned upon the retention of 

some parental rights” and that Jeremy and Jamie “made promises and representations to [Maria] that she could see the child” 

and had failed to allow her to do so. The attached agreement 

provides the additional factual allegations that this was a foster 

parent adoption after Maria gave consent to adopt and signed 

a voluntary relinquishment to DHHS (which DHHS accepted). 

The agreement is asserted to amount to a condition under 

paragraph V of the petition, therefore rendering the relinquishment invalid.

[15] Communication and contact agreements are contemplated and discussed by the law at Neb. Rev. Stat. §§ 43-162 

to 43-166 (Reissue 2016). These statutes specifically provide 

that the agreements require court approval to be enforceable, 

and even if approved, noncompliance may not be the basis for 

setting aside a particular adoption, or revoking a relinquishment to DHHS. Therefore, under the law, such an agreement 

in any form could never be considered an invalidating condition, and noncompliance cannot be the basis for the relief 

Maria seeks.

[16] Section 43-162 provides for court approval of communication or contact agreements for adoptees in the custody 

of DHHS:

The prospective adoptive parent or parents and the birth 

parent or parents of a prospective adoptee may enter into 

an agreement regarding communication or contact after 

the adoption between or among the prospective adoptee 

and his or her birth parent or parents if the prospective 

44 See Sedlacek v. Greenholtz, supra note 18.
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adoptee is in the custody of [DHHS]. Any such agreement 

shall not be enforceable unless approved by the court pursuant to section 43-163.

A court gives statutory language its plain and ordinary meaning 

and will not look beyond the statute to determine the legislative intent when the words are plain, direct, and unambiguous.45

Under the plain language of § 43-162, “an agreement regarding 

communication or contact . . . shall not be enforceable unless 

approved by the court.”

While the application failed to describe whether the agreement was approved by the juvenile court, even had the agreement been approved, its breach would not have rendered 

Maria’s relinquishment and consent invalid. Section 43-164 

states that failure to comply with a court-approved communication or contact agreement shall not be grounds for setting 

aside or revoking a relinquishment, consent to adoption, or an 

adoption decree:

Failure to comply with the terms of an order entered 

pursuant to section 43-163 shall not be grounds for 

setting aside an adoption decree, for revocation of a 

written consent to adoption after the consent has been 

approved by the court, or for revocation of a relinquishment of parental rights after the relinquishment has been 

accepted in writing by [DHHS] as provided in section 

43-106.01.

[17] Maria argues on appeal that her factual allegations in 

the application for the writ included an alleged breach of a private, apparently oral, promise to maintain contact, as opposed 

to the written agreement presented during the adoption proceeding. But these statutes are not limited to written agreements or agreements presented to the juvenile court. We find 

no ambiguity in the Legislature’s stated intent to encompass 

within § 43-163 all written or oral agreements regarding communication or contact after an adoption, when the prospective 

45 In re Interest of Joseph C., 299 Neb. 848, 910 N.W.2d 773 (2018).
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adoptee is in the custody of DHHS. Under § 43-163, such 

agreements are enforceable only if approved by the juvenile 

court and, pursuant to § 43-164, such agreements are never 

enforceable by way of revoking the consent and dissolving 

the adoption.

Thus, the facts alleged in Maria’s application, as distinguished from conclusions of law therein, were not sufficient 

to warrant discharge. Rather, the allegations in the application show on their face that there is an insuperable bar to 

relief. While Maria asserted more broadly in her application 

that her relinquishment and consent was invalid because it 

was “obtained through coercion and/or false pretenses and/or 

fraud,” this naked conclusion of law was insufficient to warrant 

a writ of habeas corpus.

[18-20] For the first time on appeal, Maria raises the constitutionality of the statutes governing consent and contact 

agreements in relinquishments to DHHS. Appellate courts 

do not generally consider arguments and theories raised for 

the first time on appeal.46 Except in the most unusual cases, 

for a question of constitutionality to be considered on appeal, 

it must have been properly raised in the trial court.47 If 

not so raised, it will be considered to have been waived.48

Furthermore, strict compliance with Neb. Ct. R. App. P. 

§ 2-109(E) (rev. 2014) is necessary whenever a litigant challenges the constitutionality of a statute, regardless of how 

that constitutional challenge may be characterized.49 Maria 

failed to file a separate notice challenging the constitutionality of a statute and serve her brief on the Attorney General, as 

required by § 2-109(E).

46 State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).

47 State ex rel. Shepherd v. Neb. Equal Opp. Comm., 251 Neb. 517, 557 

N.W.2d 684 (1997).

48 Id.

49 State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
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While habeas corpus is an appropriate remedy to challenge 

the legality of a child’s adoption and custody,50 §§ 43-162 

and 43-164 present an insuperable bar to relief under the circumstances and events alleged in Maria’s petition. Although 

the proper procedure was not followed, we affirm the court’s 

ultimate determination that the application failed to allege facts 

that could warrant relief in a habeas proceeding. For this reason, we find no merit to Maria’s assignments of error.

CONCLUSION

For the foregoing reasons, we hold that the district court 

did not err in dismissing Maria’s application for a writ of 

habeas corpus.

Affirm

50 See Jesse B. v. Tylee H., 293 Neb. 973, 883 N.W.2d 1 (2016).