Brett M. v. Vesely

brett m., AlSo kNoWN AS morgAN v., A miNor Child,
ex rel . NebrASkA C hildreN’S home SoCiety,
A NebrASkA NoNprofit CorporAtioN, Appellee ,
v. JASoN veSely ANd ANgelA veSely,
huSbANd ANd Wife , AppellANtS.
757 N.W.2d 360
Filed November 21, 2008. 	No. S-08-178.
1. Habeas Corpus: Child Custody: Appeal and Error. A decision in a habeas cor-
pus case involving custody of a child is reviewed by an appellate court de novo
on the record.
2. Habeas Corpus: Minors. The basis for the issuance of a writ of habeas corpus is
an illegal detention, but in the case of a writ 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.
3. Parental Rights: Adoption. In an agency adoption, under Neb. rev. Stat.
§ 43-106.01 (reissue 2004), the rights of a parent who has relinquished in writ-
ing his or her child are terminated when the agency accepts responsibility for the
child in writing.
4. Adoption: Child Custody. In an agency adoption, if the adoptive parents are
unsuitable or decline to go through with an adoption, the agency retains custody
over the child.
5. Adoption: Guardians and Conservators. Where a licensed child placement
agency places a child with prospective adoptive parents for the purpose of adop-
tion, it cannot arbitrarily and unreasonably terminate that placement merely
by asserting and proving that it is still the legal guardian. There must be some
evidence of reasonable grounds for terminating a placement for adoption by a
licensed placement agency.
Appeal from the District Court for Knox County: pAtriCk g.
rogerS, Judge. reversed with directions.
Kathleen Koenig rockey and Christopher C. hilkemann,
of Copple, rockey & McKeever, P.C., L.L.O., and Kelly N.
Tollefsen for appellants.
Tom D. hockabout, of Moyer, Egley, Fullner & Montag,
for appellee.
Jeffrey M. Doerr, of Law Offices of Jeffrey M. Doerr, P.C.,
guardian ad litem.
heAviCAN, 	C.J., 	Wright, 	C oNNolly, 	gerrArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
BrETT M. v. VESELY 	765
Cite as 276 Neb. 765
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

miller-lermAN, J.
NATUrE OF ThE CASE
This case involves an appeal from the issuance of a writ of
habeas corpus by the district court for Knox County ordering
the removal of Brett M., also known as Morgan V. (Morgan),
from the home of his prospective adoptive parents, appellants
Jason Vesely and Angela Vesely, where he had been placed by
appellee, Nebraska Children’s home Society (the agency). We
conclude that although legal custody of Morgan remained with
the agency, Morgan was not being illegally detained by the
Veselys and that it is in the best interests of Morgan to remain
with the Veselys. We reverse the issuance of the writ.
STATEMENT OF FACTS
The Veselys were the prospective adoptive parents of Morgan,
who was placed in their home by the agency in anticipation of
an agency adoption. The record shows that since 2003, the
Veselys have lost three children, due to complications as the
result of premature births, and have experienced a miscarriage
and failed fertility treatments. In 2005, the Veselys contacted
the agency to inquire about adoption. After contacting the
agency, the Veselys attended the agency’s “information shar-
ing meeting,” which the agency describes as the first step for
any eligible adoptive couple. After this meeting, the Veselys
expressed interest in continuing with the process to become
adoptive parents.
On February 2 and 3, 2006, the Veselys attended the agen-
cy’s training class for prospective adoptive parents. During this
class, the agency covers issues raised by adoption, infertility,
and pursuing fertility treatments. At the training, the agency
advises couples that changes in their lives, including preg-
nancy status, that could impact the placement of a child should
be reported.
After completion of the training class, the next step in the
adoptive process is a home study. The Veselys’ home study was
completed on December 29, 2006, by the couple’s caseworker,
who testified that it was her usual practice to inform parents
of the necessity to keep the agency advised of any changes in
their circumstances.
766 	276 NEBrASKA rEPOrTS

Upon completion of a successful home study, prospective
adoptive couples are provided with an approval letter informing
them that they are being placed on the waiting list for place-
ment of a child. The Veselys received their letter on February
9, 2007. The following July, Angela Vesely became pregnant
through the process of in vitro fertilization.
On November 1, 2007, the Veselys were contacted by the
agency and informed that the agency had a child waiting
in North Platte, Nebraska, to be adopted, and that the birth
mother had selected the Veselys’ profile for placement of the
child. The child, Morgan, was born on October 29, 2007. On
November 2, the Veselys drove to North Platte and met with
the birth mother. The birth mother’s parents were also pres-
ent. The Veselys stated that at no time during this 2-hour
meeting were they asked about their pregnancy status. After
meeting with the Veselys, the birth mother signed relinquish-
ment papers irrevocably relinquishing custody of Morgan to
the agency. The birth mother indicated her wish to place
Morgan with the Veselys. On that same day, the Veselys left
the hospital with Morgan and brought him to their home in
Verdigre, Nebraska.
On November 7, 2007, the agency executed a “Confirmation
of Placement” stating that the child was placed with the
Veselys for the purpose of adoption. The confirmation of place-
ment authorized the Veselys to give permission for medical
and surgical care needed for Morgan and provided that as of
November 2, “the adoptive parents assume full responsibility
for this child.”
On December 3, 2007, through a Medicaid application for
Morgan, the agency became aware that Angela Vesely was
pregnant. Upon learning about the pregnancy, a representa-
tive of the agency contacted Jason Vesely and inquired about
the pregnancy. Jason Vesely informed the agency that because
of the problems they had experienced with prior births, the
Veselys were waiting to tell Morgan’s birth mother about the
pregnancy until after Christmas, when, according to Jason
Vesely, they would feel more secure that the pregnancy would
be successful.
BrETT M. v. VESELY 	767
Cite as 276 Neb. 765

On December 10, 2007, a representative of the agency met
with the birth mother and her mother and advised them that
Angela Vesely was pregnant. On December 12, representatives
of the agency, including the director, met with the Veselys and
advised them that the agency intended to revoke the place-
ment. The director instructed the Veselys to return Morgan
to the agency on December 14, citing as reasons the Veselys’
failure to disclose their pregnancy status, the birth mother’s
being upset about the pregnancy, and the concern for poten-
tial bonding issues. The Veselys protested and informed the
staff of the agency that they loved Morgan and would take
whatever steps were necessary to keep Morgan in their home.
On December 14, the agency formally revoked the confirma-
tion of placement by executing a “Confirmation of revocation
of Placement.”
The Veselys did not return Morgan to the agency, and on
December 14, 2007, filed in the county court for Knox County
a petition for appointment as guardians on behalf of Morgan.
On December 30, Angela Vesely gave birth to a son, who was
born prematurely at 28 weeks.
On January 28, 2008, the agency filed a petition for a writ of
habeas corpus, asking that the district court order the Veselys
to return Morgan to the custody of the agency. It is this habeas
corpus action which gives rise to the instant appeal. The dis-
trict court held a hearing on the petition for habeas corpus
on February 11. At the hearing, the court heard testimony
from Morgan’s nurse practitioner, who visited the Veselys and
observed them with Morgan on November 13, 2007. She testi-
fied that she observed good interaction between the Veselys
and Morgan, that Morgan moved his head toward their voices,
that there was a good rapport between the Veselys and Morgan,
and that Morgan was cooing at the Veselys. She further opined
that the Veselys and Morgan were beginning the bonding proc-
ess. Morgan’s physician testified that there was a good rapport
between Jason Vesely and Morgan. The physician also testified
that bonding between the child and parents could occur very
quickly. There was also testimony at the hearing indicating that
the Veselys had support from extended family, many of whom
were available to help care for Morgan.
768 	276 NEBrASKA rEPOrTS

The court also heard testimony from the parties with respect
to what information the Veselys received regarding the advis-
ability of informing the agency of their pregnancy status. The
agency also introduced into evidence the birth mother’s place-
ment profile, which indicated that she wanted her son placed in
a home with a stay-at-home mother and wanted him to be an
only child.
On February 15, 2008, the district court entered an order
concluding that the agency had legal custody of Morgan; that
the agency revocation of placement was valid; and that it was
in the child’s best interests that his care, custody, and control
be returned to the agency. The court found that the Veselys
had provided Morgan with all the necessary care, support, and
love and that based on the testimony of the medical profes-
sionals, Morgan had thrived. Nevertheless, the court concluded
that other factors supported a decision to return the child to
the agency. These factors included the court’s determination
that the Veselys should have reported their pregnancy status
to the agency; the court’s determination that the birth mother
selected the Veselys based on a profile that Morgan would
have an at-home mother and would be an only child, and that
therefore, Angela Vesely’s pregnancy changed the “spirit” of
the adoption; and the court’s concern that there was likely to
be prolonged litigation in this case. This order is the subject of
this appeal.
After this ruling, the parties seem to agree that Morgan was
returned to the agency and placed with his maternal grand-
parents. The record does not contain detailed information
concerning the maternal grandparents’ home environment. The
district court’s order states that there is nothing in the record
to indicate that the placement with the maternal grandparents
would not be in the best interests of Morgan or in his welfare
or that the prospective placement would not provide Morgan
with care and love. The district court issued a writ of habeas
corpus directing the Veselys to deliver Morgan to the agency.
The Veselys appeal.
ASSIGNMENTS OF ErrOr
The Veselys claim that the district court erred (1) by find-
ing that Morgan was illegally detained by the Veselys and
BrETT M. v. VESELY 	769
Cite as 276 Neb. 765

(2) by determining that it was in Morgan’s best interests to be
returned to the agency.
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.
Gomez v. Savage, 254 Neb. 836, 580 N.W.2d 523 (1998).
ANALYSIS
[2] In this case, we are concerned with a habeas corpus
action involving the custody of a child in the context of an
agency adoption. Therefore, our consideration of this appeal
is made by reference to the jurisprudence surrounding habeas
corpus actions involving detention of a child and the law
regarding agency adoptions. With respect to the latter, we note
that the Legislature, as well as this court, has long recognized
a distinction between agency adoptions and private adoptions.
Yopp v. Batt, 237 Neb. 779, 467 N.W.2d 868 (1991). With
respect to habeas corpus, we have said that ordinarily, the
basis for the issuance of a writ of habeas corpus is an illegal
detention, but in the case of a writ sued out for the deten-
tion of a child, the law is concerned not so much about the
illegality of the detention as about the welfare of the child.
Christopherson v. Christopherson, 177 Neb. 414, 129 N.W.2d
113 (1964).
Although the Agency Retained Legal Custody of Morgan,
the Veselys Did Not Illegally Detain Him.
[3-5] The Veselys appeal from the district court’s issuance
of a writ of habeas corpus ordering the removal of the minor
child, Morgan, from their home. In determining the validity of
the issuance of the writ of habeas corpus, we must first deter-
mine which party had legal custody of Morgan and, thereafter,
determine whether Morgan was being illegally detained by
another party. Because this case involves a child placement
agency, we are guided initially by statute. In an agency adop-
tion, under Neb. rev. Stat. § 43-106.01 (reissue 2004), the
rights of a parent who has relinquished in writing his or her
child are terminated when the agency accepts responsibility for
the child in writing. It is the agency that finds and investigates
770 	276 NEBrASKA rEPOrTS

the prospective parents. Gomez v. Savage, supra. We have
stated that “[i]f the adoptive parents are unsuitable or decline to
go through with the adoption, the agency retains custody over
the child . . . .” Id. at 846, 580 N.W.2d at 531. It has also been
observed that
[w]here a licensed child placement agency places a child
with prospective adoptive parents for the purpose of
adoption, it cannot arbitrarily and unreasonably terminate
that placement merely by asserting and proving that it is
still the legal guardian. . . . [T]here must be also some
evidence of reasonable grounds for terminating a place-
ment for adoption by a licensed placement agency in
this state.
Nebraska Children’s Home Soc. v. Collins, 195 Neb. 531, 538-
39, 239 N.W.2d 258, 262 (1976) (McCown, J., concurring).
In this case, the evidence shows that the agency retained
legal custody of Morgan. Pursuant to § 43-106.01, the birth
mother relinquished her parental rights to the agency in
writing and the agency accepted responsibility for Morgan
in writing. Neb. rev. Stat. § 43-109(1)(a) (reissue 2004)
requires that a child reside with the prospective adoptive par-
ents for a minimum of 6 months before the prospective adop-
tive parents can become eligible to adopt the child. Because
Morgan had not resided with the Veselys for 6 months when
the agency sought to revoke the placement and filed this
habeas corpus action, no formal adoption proceedings had yet
been undertaken.
The Veselys assert that they retained “legal” custody of
Morgan because the agency arbitrarily revoked the placement
of Morgan. While we agree with the assertion that an agency
must have a proper basis for revoking a prospective adoptive
placement, we do not agree with the Veselys that an improper
revocation controls the issue of the legal custody of Morgan.
The 	district 	court 	correctly 	concluded 	that 	the 	agency
retained legal custody of Morgan. This is so because the birth
mother had relinquished her parental rights in writing, the
agency accepted responsibility for the child in writing, and for-
mal adoption proceedings had not been completed. however,
the district court also found that by virtue of the revocation, the
BrETT M. v. VESELY 	771
Cite as 276 Neb. 765

Veselys’ rights to physical custody for placement purposes had
been properly terminated by the agency and that the Veselys
were therefore illegally detaining Morgan. We disagree with
this determination.
In reaching our conclusion, we have considered but rejected
the agency’s argument that because of its status as legal cus-
todian and the Veselys’ failure to report their pregnancy sta-
tus, revocation of the placement was justified. An adoption
agency cannot arbitrarily or unreasonably terminate a place-
ment merely by asserting that it is still the legal guardian of
the child. Nebraska Children’s Home v. Collins, supra. As
the Veselys point out, the parties entered into an agreement
titled “Client rights and responsibilities,” and nowhere in this
agreement does it state that the Veselys were required to inform
the agency of their pregnancy status. The parties did not enter
into any written agreement specifically stating that the Veselys
would forfeit their rights to adopt Morgan if Angela Vesely
became pregnant or if she were pregnant at the time Morgan
was placed with them. Absent any such written agreement or
policy, we do not believe that the Veselys’ failure to disclose
their pregnancy status was a reasonable ground to terminate
the placement for adoption with the Veselys. Contrary to the
district court’s determination, the Veselys were not illegally
detaining Morgan.
It Was in the Best Interests of Morgan
to Remain With the Veselys.
To determine the best interests of Morgan, we next review
the record as of the time the district court ruled. When deter-
mining the best interests of a child, we review the record before
the district court de novo. Gomez v. Savage, 254 Neb. 836, 580
N.W.2d 523 (1998). As we have noted above, in the case of
a writ served out for the detention of a child, the law is con-
cerned not so much with the illegality of the detention as about
the welfare of the child. Christopherson v. Christopherson, 177
Neb. 414, 129 N.W.2d 113 (1964).
The Veselys argue that the district court erred in its best
interests analysis when it determined that although Morgan
was thriving in the care of the Veselys, the revocation of the
772 	276 NEBrASKA rEPOrTS

placement and his removal was nevertheless warranted based
on considerations such as the “spirit” of the adoption, the
wishes of the biological mother, the possibility of future liti-
gation, and the effect of the Veselys’ minor child on Morgan’s
welfare. The Veselys generally argue that it was in Morgan’s
best interests to remain with them. The Veselys specifically
contend that by applying the best interests criteria set forth in
Nebraska custody cases involving divorcing parents, it was not
in Morgan’s best interests to be returned to the agency. See,
e.g., McDougall v. McDougall, 236 Neb. 873, 464 N.W.2d
189 (1991) (reciting best interests factors used in dissolu-
tion cases).
Although relevant, we are not persuaded that the best
interests factors examined in custody cases between divorcing
parents are the most appropriate criteria to a determination of
best interests in the current context. rather, in determining
whether the best interests of the child are served by contin-
ued placement with prospective adoptive parents, we believe
it is appropriate to consider factors that have been used in
similar placement cases elsewhere. These factors include, but
are not limited to, the prospective adoptive parents’ ability
to provide for the child’s emotional and intellectual develop-
ment, the quality of the prospective adoptive parents’ home
environment, the length of placement of the child, and the
financial ability of the prospective adoptive parents to provide
for the child. See, e.g., In re Summer A., 49 A.D.3d 722, 854
N.Y.S.2d 195 (2008); In re Baby Boy M., 269 A.D.2d 450,
703 N.Y.S.2d 221 (2000). Indeed, these factors are consist-
ent with considerations we have applied in juvenile cases
where we have reviewed whether removal of the child or
termination of parental rights is in the child’s best interests.
In those cases, we have considered whether a parent has the
insight and motivation to protect his or her child, the length
of time the child has remained away from the parent, and the
parent’s capacity and desire to be an active parent. See, e.g.,
In re DeWayne G. & Devon G., 263 Neb. 43, 638 N.W.2d 510
(2002); In re Joshua M. et al., 251 Neb. 614, 558 N.W.2d
548 (1997); In re Interest of B.B. et al., 239 Neb. 952, 479
N.W.2d 787 (1992). We logically apply these considerations
BrETT M. v. VESELY 	773
Cite as 276 Neb. 765

to the Veselys as prospective adoptive parents in this habeas
corpus proceeding.
With respect to the factors set forth above, we note that the
agency did not argue in the district court, or on appeal, that
the Veselys were unsuited to serve as parents. Importantly, on
the record presented, the district court effectively found the
Veselys to be suitable. In its order, the district court stated:
This court specifically finds that since the date Morgan
was placed with [the Veselys] on November 2, 2007, they
have provided all of the necessary care, support and love
for [Morgan] in their home which is appropriate for that
purpose. The [Veselys’] immediate family has shared in
said efforts and ha[s] also provided nurturing to Morgan.
In response to these efforts, it is undisputed, and the court
so finds, that Morgan has thrived as demonstrated by the
testimony of the medical professionals, as well as other
family members. The court further finds that the [Veselys]
truly love Morgan and have every intention to provide for
all of his needs in the future.
Our de novo review of the record shows that the district
court’s findings are well supported. There was testimony at
the hearing by Morgan’s nurse practitioner that she observed
good interaction and a good rapport between the Veselys and
Morgan and that the Veselys and Morgan were in the beginning
stages of bonding. Morgan’s physician also testified that there
was good rapport between Morgan and Jason Vesely. There
was evidence that the Veselys had support from their extended
family. There was no evidence at the hearing to suggest that
Morgan’s needs were not being met by the Veselys, that the
home environment was unsuitable, or that the Veselys could not
financially take care of Morgan.
Based on our de novo review of the record made before the
district court, and applying the considerations discussed above,
we determine that it was in the best interests of Morgan to
remain with the Veselys, that the district court’s ruling to the
contrary at the time it was made was erroneous, and that its
order issuing the writ must be reversed.
774 	276 NEBrASKA rEPOrTS

CONCLUSION
Our de novo review of the record made at the district court
establishes that Morgan was not being illegally detained by the
Veselys and that it is in the best interests of the minor child,
Morgan, to remain in the care of the Veselys. Accordingly, we
reverse the order of the district court which issued the writ of
habeas corpus and we hereby order that Morgan be returned
to the Veselys, pending the initiation and resolution of adop-
tion proceedings.
reverSed With direCtioNS.
iN re A ppliCAtioN of dAvid v. hArtmANN for A dmiSSioN
to the NebrASkA StAte bAr oN exAmiNAtioN.
757 N.W.2d 355
Filed November 21, 2008. 	No. S-34-070006.
1. Rules of the Supreme Court: Attorneys at Law: Appeal and Error. Under
Neb. Ct. r. § 3-115, the Nebraska Supreme Court considers the appeal of an
applicant from a final adverse ruling of the Nebraska State Bar Commission de
novo on the record made at the hearing before the commission.
2. Rules of the Supreme Court: Attorneys at Law. The Nebraska Supreme Court
is vested with the sole power to admit persons to the practice of law in this state
and to fix qualifications for admission to the Nebraska bar.
3. ____: ____. The Nebraska Supreme Court has delegated administrative responsi-
bility for bar admissions solely to the Nebraska State Bar Commission.
4. Attorneys at Law: Proof. The applicant for admission to the Nebraska State Bar
bears the burden of proving good character by producing documentation, reports,
and witnesses in support of the application.
5. Attorneys at Law. Where the record of an applicant for admission to the
Nebraska State Bar demonstrates a significant lack of honesty, trustworthiness,
diligence, or reliability, a basis may exist for denying his or her application.
6. ____. When evidence exists to indicate that an applicant has engaged in conduct
demonstrating a lack of character and fitness in the past, the Nebraska State Bar
Commission must determine whether present character and fitness qualify the
applicant for admission.
Original action. Application granted.
Sean J. Brennan for applicant.
IN rE APPLICATION OF hArTMANN 	775
Cite as 276 Neb. 775