Nebraska Supreme Court Rules That Open Adoptions Nullify Termination of Parental Rights

On May 29, 2015, the Nebraska Supreme Court ruled that a lower court was correct in returning a baby to his biological parents after an open adoption agreement essentially fell apart.

Teresa and Monty Sellers, who lived in Kansas, offered to have a baby for Becky and Jason Wissmann, who could not have biological children. Baby Liam was born in July, 2013. The Sellerses and the Wissmanns entered into an open adoption agreement, which specified that the birth parents would remain in the child’s life. However, the agreement did not specify what the open adoption would like, and did not include a detailed visitation plan. When the birth parents were spending 1–4 hours a day every other day with the baby after birth, the visitation interfered with the adoptive parents’ bonding with the baby. When the baby was two weeks old, the birth parents then wanted to take the child out of town for a family reunion. The adoptive parents refused. By the end of August, 2013, the adoptive parents decided they no longer wanted an open adoption.

Just before the adoption was to be finalized in January 2014, the birth parents petitioned the court for the baby to be returned to them. They claimed that their termination of parental rights (TPR) and consent to adoption were invalid, because of fraud and duress, and because they were never told that open adoptions are unenforceable in Nebraska. A county court dismissed the fraud and duress claims, but invalidated the adoption because the birth parents’ TPR and consent had been given based on the belief that they would still be a part of their son’s life after the adoption. Baby Liam was placed with his birth parents in September, 2014.

The Nebraska Supreme Court heard the case and sided with the county court. According to the Supreme Court, case law states that “an open adoption acts as the retention of some parental rights” and “retention of some parental rights renders a relinquishment invalid.”

Take a moment and read that again.

“An open adoption acts as the retention of some parental rights” and “retention of some parental rights renders a relinquishment invalid.”

The Supreme Court of Nebraska may have just invalidated any private adoption in which an open adoption agreement exists between the birth parents and adoptive parents. At the very least, they just opened a door for birth parents to petition the courts to invalidate their TPRs and consents to adoption in Nebraska.

Nebraska law allows for open adoptions from foster care. It does not allow for open adoptions in private adoptions. (A private adoption is any adoption that isn’t through foster care.) The legislature has not addressed this, so the court will not allow open private adoptions. This ruling could also be used as precedent in other states that do not have clear laws addressing open adoption agreements in private adoptions.

This verdict is not about the one child who was bounced from home to home. It could be about thousands of children who were adopted in private adoptions with open adoption agreements in states in which those agreements are unenforceable. The ruling has the potential to change open adoption across the nation.

And yet, it’s gone widely unnoticed. What do you think? What will happen next?