The Nebraska Supreme Court on Friday affirmed a lower court's decision to return a baby to his biological parents after spending more than a year with his adoptive parents.
The case involving two Richardson County couples raises questions about the lack of legal communication and visitation safeguards in so-called open adoptions in Nebraska and could lead to more closed, private adoptions, some family lawyers said Friday.
Private and agency adoptions have increasingly been more open in recent years, meaning more communication about and contact among biological parents and the children they give up for adoption, lawyers said.
The Richardson County case underscores the importance that biological parents understand that when they finalize an adoption in Nebraska they legally surrender their parental rights, other lawyers said.
Jason and Rebecca Wissmann, who lost the baby boy they adopted, hope lawmakers will fix the open adoption problem and spare others the devastation they experienced, their attorney said.
"It’s over with and done with for good (for them)," Jeanette Stull said.
The Wissmanns couldn't have children on their own and a foster child they raised for almost two years had been placed with biological relatives with no warning, Stull said.
"They were reeling."
Friends Teresa and Monty Sellers felt sorry for Rebecca Wissmann and discussed the possibility that Teresa might serve as a surrogate, court documents say.
Both sides agreed the adoption would be open and the Sellerses would remain a part of the baby's life.
Lawson Wissmann was born in July 2013 and went home with the Wissmanns. Two days later, both couples met with the Wissmann family's lawyer, and the Sellerses signed documents giving up their parental rights and consenting to the adoption.
For several weeks after that, Teresa Sellers saw the baby about every other day for several hours, according to court documents.
In time, the Wissmanns felt the visits were interfering with their bond with Lawson, Stull said, and "all hell broke loose" when the Sellerses wanted to take him to a family reunion in Council Bluffs, Iowa.
The Wissmanns ended the visits in late August 2013 and in January 2014 -- days before the adoption was to become final -- the Sellerses petitioned the court for the return of the baby.
They claimed their consent to the adoption and relinquishment of their parental rights were invalid for several reasons, including fraud and duress.
Monty and Teresa Sellers testified they were never told that open adoptions are essentially unenforceable in Nebraska, Chief Justice Michael Heavican wrote in the Supreme Court's decision.
Richardson County District Judge Daniel Bryan rejected the claims of fraud and duress but still invalidated the adoption, ruling that the Sellerses' consent was coerced because they gave up their parental rights believing they would still see the child after his birth.
After a hearing in September, Bryan placed the baby back with his biological parents.
The Wissmanns appealed, saying in part that the Sellerses' rights were not stripped from them involuntarily as were those of the family in a 1984 case cited by Bryan.
That case, involving a state ward, prompted the Nebraska Legislature to enact a 1988 law creating court-enforced agreements allowing communication and contact between the adopted child and his or her biological parents.
In Nebraska, no such agreements exist for children and families involved in private adoptions, Stull said. If families reach an agreement in an open adoption, it's not legally binding, she said.
The issue at the heart of the 1984 case held true in this case, Heavican wrote for the unanimous majority. People who give up parental rights believing they will retain some rights renders the relinquishment invalid, he said.
The court upheld the decision to keep Lawson with his biological parents.
"We are not unsympathetic to the plight of adoptive and biological parents as they navigate through the highly emotional process of adoption," Heavican wrote, adding that some open arrangements could benefit the children.
But any agreements signed with the promise of an open adoption will remain invalid in the court's eyes, Heavican said.
"Until the Legislature acts to approve of these open adoption arrangements in a private adoption context, this court will not recognize them," he wrote.
Jessica Meyer, the Sellerses' lawyer, said her clients are grateful for and pleased with the decision.
"The Sellers love their son and are overjoyed to have him in their home,” Meyer said.
Stull said the case shows why adoptive parents need enforceable contact agreements.
Adoption and family law attorney Kelly Tollefsen said she has seen families engage in more open adoptions in the past 15 years and fears the decision could mean more closed adoptions that ultimately leave children with unanswered questions later in life.
But Susan Sapp, who also practices adoption and family law in Lincoln, said most adoption lawyers make it clear to their clients that when they give a child up for adoption, they relinquish all parental rights, she said.
Often, families communicate after the adoption, she said, but no one recommends co-parenting.
Sapp said she's never had a biological parent change his or her mind, and she doesn't know whether she would support lawmakers giving parents in private adoptions court-enforced contact agreements.
Those agreements could put both sets of parents back in court should disagreements arise, she said. And she's not sure that's good for the child.
Stull said Rebecca and Jason Wissmann will always love Lawson, but they are focusing on raising Jason Wissmann's 12-year-old daughter.