Hopkins v. Hopkins ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/19/2016 09:08 AM CDT
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HOPKINS v. HOPKINS
Cite as 294 Neb. 417
Kyel Christine Hopkins, appellee, v.
Robert K eith Hopkins, appellant.
___ N.W.2d ___
Filed August 19, 2016. No. S-14-790.
1. Statutes: Judgments: Appeal and Error. The meaning and interpreta-
tion of a statute are questions of law. An appellate court independently
reviews questions of law decided by a lower court.
2. Judgments: Evidence: Appeal and Error. Despite de novo review,
when credible evidence on material questions of fact is in irreconcil-
able conflict, an appellate court will, when determining the weight of
the evidence, consider that the trial court observed the witnesses when
testifying, and used those observations when accepting one version of
the facts over the other.
3. Modification of Decree: Appeal and Error. Modification of a dis-
solution decree is a matter entrusted to the discretion of the trial court,
whose order is reviewed de novo on the record, and which will be
affirmed absent an abuse of discretion by the trial court.
4. Child Custody. Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change in circumstances showing
that the custodial parent is unfit or that the best interests of the child
require such action.
5. Modification of Decree: Child Custody: Proof. In a child custody
modification case, first, the party seeking modification must show a
material change in circumstances, occurring after the entry of the previ-
ous custody order and affecting the best interests of the child. Next, the
party seeking modification must prove that changing the child’s custody
is in the child’s best interests.
6. Child Custody: Convicted Sex Offender. Neb. Rev. Stat. § 43-2933(1)
(Reissue 2008) guides custody determinations when a person required to
register under the Sex Offender Registration Act has access to a child.
7. ____: ____. Neb. Rev. Stat. § 43-2933(1)(b) (Reissue 2008) applies
when a party seeking custody resides with a person required to register
under the Sex Offender Registration Act and that person committed an
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underlying offense that was either a felony in which the victim was a
minor or an offense making the offender’s access to a child contrary
to the child’s best interests. Subsection (1)(c) applies when a person
required to register under the Sex Offender Registration Act has unsu-
pervised contact with a child and the underlying crime was a felony
involving a minor victim.
8. Presumptions: Proof: Words and Phrases. A presumption is the evi-
dentiary assumption of one fact (the presumed fact) based upon proof
of other facts (the predicate facts). The presumed fact is taken as true
unless the opponent of the presumed fact meets a particular burden
of proof.
9. ____: ____: ____. The “bursting bubble” presumption shifts only the
burden of production, and if that burden is met, the presumption
disappears.
10. ____: ____: ____. Under the “Morgan” theory of presumptions, a pre-
sumption shifts the burdens of both production and persuasion, and the
presumption remains in evidence even if the opponent’s burden is met.
11. Statutes: Proof. The plain language of Neb. Rev. Stat. § 43-2933(1)(c)
(Reissue 2008) shifts only the burden of production.
12. Child Custody: Convicted Sex Offender. Neb. Rev. Stat. § 49-2933
(Reissue 2008) requires a trial court to consider whether, in its discre-
tion, a sex offender poses a risk, sufficiently great or important to be
worthy of attention, of committing a sexual offense against the child or
children in question.
13. Proof. The determination that a party has met its burden of production
can involve no credibility assessment; the burden-of-production determi-
nation necessarily precedes the credibility-assessment stage.
14. Statutes: Legislature: Public Policy. It is the Legislature’s function
through the enactment of statutes to declare what is the law and pub-
lic policy.
Petition for further review from the Court of Appeals,
Moore, Chief Judge, and Pirtle and Bishop, Judges, on appeal
thereto from the District Court for Phelps County, Terri S.
H arder, Judge. Judgment of Court of Appeals affirmed.
Kent A. Schroeder, Kenneth F. George, Mindy L. Lester, and
D. Brandon Brinegar, of Ross, Schroeder & George, L.L.C.,
for appellant.
Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O.,
for appellee.
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Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Heavican, C.J.
I. NATURE OF CASE
Robert Keith Hopkins seeks review of the Nebraska Court
of Appeals’ decision affirming the district court’s denial of
Robert’s counterclaim for custody of his daughters. Robert,
whose marriage to Kyel Christine Hopkins was dissolved in
March 2004, asserts that under Neb. Rev. Stat. § 43-2933
(Reissue 2008), custody should be modified, because Kyel
is now married to Thomas Rott (Thomas), a registered
sex offender.
The question presented is whether Kyel has met her statu-
tory burden to produce evidence that the girls are not at sig-
nificant risk and, if so, whether the district court abused its
discretion by finding that the girls were not at significant risk.
Guided by the plain language of § 43-2933, we affirm the dis-
trict court’s denial of modification.
II. BACKGROUND
In 2004, Robert and Kyel divorced. The decree granted Kyel
full custody of their two daughters, with regular visitation for
Robert. The parties each also have children from other mar-
riages not relevant to our review.
In January 2013, Kyel filed an application to modify visi-
tation. Robert counterclaimed, seeking full custody. Robert
asserts that he should be granted a modification of custody,
because Kyel’s current spouse, Thomas, resides with and has
unsupervised access to the children and is a registered sex
offender for reason of a felony involving a minor. Robert
alleges he was not aware of Thomas’ sex offender status until
July 2013, after Kyel initiated modification proceedings.
1. Thomas’ Offenses, Incarceration,
and R ehabilitation Efforts
In 2002, Thomas sexually assaulted his minor stepdaughter
from a prior marriage. The probable cause affidavit for Thomas’
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arrest stated that the victim alleged that Thomas had rubbed her
breasts and vaginal area 12 to 14 times over the course of 2
years, including digital penetration one time and penetration
with a vibrator one time. But Thomas did not admit to these
precise facts. According to the affidavit, Thomas admitted that
he had touched the minor’s breasts five to six times, penetrated
her once digitally, and rubbed her with a vibrator. At trial on
the application to modify, Thomas testified that the inappropri-
ate touching lasted a period of 3 to 4 months, and not the 2
years alleged by the victim.
The State charged Thomas with two counts of first degree
sexual assault, and one count of sexual assault of a child.
Thomas eventually pled guilty to a modified count one,
attempted sexual assault of a child, and the other charges
were dismissed by the State. Thomas was incarcerated from
2003 to approximately 2007. He completed several volun-
tary rehabilitative programs while in prison. Among these
was “GOLF 3,” which was a program designed specifically
for sex offenders. Thomas testified that after “he had done
everything at that point that I could for what they had” and
participating in individual counseling at the state penitentiary,
he applied for and was admitted to an inpatient sex offender
program at the Lincoln Correctional Center for more inten-
sive rehabilitation. Thomas applied for this program after he
had already been denied any opportunity for parole. At the
trial on modification, Thomas testified that he participated
in the inpatient program “to make sure that what happened
would never ever happen again.” Thomas testified that he
has not been investigated for any sexual misconduct since
his incarceration.
2. Thomas’ Access to Children
A few years after Thomas’ release, he and Kyel began dat-
ing in May 2010, and they moved in together that August.
They married in 2012. Some evidence at trial revealed that
initially, Kyel was reluctant to address Thomas’ criminal his-
tory. Joan Schwan, the children’s therapist, testified that Kyel
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stated she preferred to put the thought of Thomas’ history out
of mind. At first, Kyel allegedly told Schwan that Thomas’
conviction was the result of a bad divorce—a fact Schwan
discovered to be untrue upon her own investigation. At trial,
Schwan testified that she recommended the family be open
about Thomas’ criminal history and stated that Kyel’s apparent
denial of that history was concerning.
Other evidence in the record reveals that in 2004, Kyel
dated, and had a child with, a different man who later pled
guilty to a misdemeanor charge of attempted sexual assault of
a child for digitally penetrating one of Kyel’s other daughters.
Robert testified at the trial for modification that Kyel took
no steps to investigate Thomas’ background, but Robert also
admitted to having no personal knowledge of this fact. In
fact, Kyel and Thomas both testified that Thomas told Kyel
everything about his sex offender status before they moved
in together. Kyel also testified that before deciding to move
in, she discussed Thomas’ history with a Child Protective
Services hotline and with family members, seeking their advice.
Although Kyel initially concealed Thomas’ sex offender status
from the girls, under Schwan’s direction, Kyel eventually told
them during a therapy session.
The record shows that Thomas has unsupervised time with
the children each day from 6 to 7 a.m. Thomas has also taken
each of the girls hunting alone. The household takes precau-
tions such as ensuring there is a lock on the bathroom door,
adjusting shower schedules, establishing a dress code, hav-
ing the girls change in private, and limiting Thomas’ time
alone with one child. Kyel and Thomas also informed other
parents of his sex offender registration status before chil-
dren came over to their house. Both girls testified they felt
safe with Thomas, and neither girl reported any actions of a
sexual nature.
Schwan testified at the trial for modification. She stated
that the children have not reported any “grooming behaviors”
(methods sexual abusers use to build a child’s trust). Thomas
has had angry outbursts in front of the girls—one time he
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abruptly stopped his car during an argument with the girls and
another time he threw a brick. Schwan additionally testified
that the girls reported Thomas had once punched a grain bin.
Robert contends that these incidents are red flags. Schwan,
however, disagreed. Schwan described grooming behaviors as
actions an offender takes to test whether a child is likely to
keep inappropriate behavior secret. For example, if an offender
were to give a child special treatment, and tell the child not
to reveal that special treatment to a parent, that would be a
red flag. Schwan’s description of grooming behaviors did not
include angry outbursts.
Schwan has never met Thomas, nor was she offered to the
court as an expert witness in adult sex offenders. Although
Schwan had reviewed some of Thomas’ prison records (which
are not part of the record on appeal), she testified that she had
no basis to determine whether Thomas had actually been reha-
bilitated. Schwan related only her opinion, based upon contact
with Kyel and the girls, that there was no risk to the girls. The
district court found that Schwan’s opinion was entitled to “con-
siderable weight.”
Other than Thomas’ unsupervised access to the children,
Robert presented no evidence of a material change in circum-
stances since the decree; Robert relies solely on § 43-2933
for modification.
3. Best Interests of Children
Aside from exploring Thomas’ risk level as a sex offender,
the parties also presented evidence generally concerning the
best interests of the children. Both Robert and Kyel called
character witnesses, who generally vouched for each of Robert
and Kyel’s credentials as good parents. Robert testified that
on one occasion in or around 2010, Kyel’s home was cramped
and very messy, with food and items on the floor. Robert also
expressed concern that Kyel apparently was not proactive
about investigating Thomas’ criminal history before moving
in with him. However, this testimony was contradicted by
Kyel’s and Thomas’ own testimony.
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The children, by all accounts, love both of their parents
and get along well with them. The girls seem to be generally
happy and doing well in school. The younger daughter testi-
fied that she would like to live with Robert in order to spend
more time with her father and half siblings there. But Schwan
testified that the younger child probably does not understand
what that would be like in the long term because she is some-
what emotionally delayed. The older daughter testified that
she was unsure which parent she would like to live with and
preferred not to make a decision.
4. Procedural History
The district court denied Kyel’s application to modify, find-
ing there was no material change in circumstances. Kyel
did not appeal this determination, and we will not review it.
The district court then assessed Robert’s counterclaim under
§ 43-2933, which controls when a party to a custody suit is or
resides with someone who is required to register under the Sex
Offender Registration Act (SORA). The full statutory scheme
of § 43-2933 is described below.
The district court found that the facts of this case triggered
a presumption under § 43-2933(1)(c) against Kyel’s having
custody. But the district court held that Kyel had overcome
that presumption based upon Schwan’s testimony. It also dis-
cussed Thomas’ successful completion of rehabilitative pro-
grams and the lack of any allegations of sexual misconduct
since 2003.
The Court of Appeals affirmed as modified.1 That court’s
modification is not relevant to the issues on appeal. It found
that the presumption against custody had been overcome
and affirmed the district court’s continued award of custody
to Kyel.
Robert filed a petition for further review, which we granted
because the interpretation of § 43-2933(1)(c) is an issue of
first impression.
1
Hopkins v. Hopkins, 23 Neb. Ct. App. 174, 869 N.W.2d 390 (2015).
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III. ASSIGNMENTS OF ERROR
On further review, Robert assigns, consolidated and restated,
that the Court of Appeals erred by (1) finding that Kyel had
rebutted the § 43-2933(1)(c) presumption and (2) failing to
award custody to Robert.
IV. STANDARD OF REVIEW
[1] The meaning and interpretation of a statute are questions
of law. An appellate court independently reviews questions of
law decided by a lower court.2
[2] Despite de novo review, when credible evidence on
material questions of fact is in irreconcilable conflict, an appel-
late court will, when determining the weight of the evidence,
consider that the trial court observed the witnesses when testi-
fying, and used those observations when accepting one version
of the facts over the other.3
[3] Modification of a dissolution decree is a matter entrusted
to the discretion of the trial court, whose order is reviewed
de novo on the record, and which will be affirmed absent an
abuse of discretion by the trial court.4
V. ANALYSIS
Robert asserts that if, as here, a person required to register
under SORA because of a felony offense involving a minor
victim resides with a party seeking custody and the person has
unsupervised contact with a child, § 43-2933(1)(c) creates a
very strong presumption against custody. Robert argues that
the Court of Appeals failed to impose a strong enough burden
upon Kyel.
We disagree with Robert’s assessment of § 43-2933(1)(c).
As discussed extensively below, the Legislature has chosen,
with explicit language, precisely how courts should pro-
ceed in custody suits involving unsupervised contact by sex
2
State v. Neisius, 293 Neb. 503, 881 N.W.2d 572 (2016).
3
State ex rel. Medlin v. Little, 270 Neb. 414, 703 N.W.2d 593 (2005).
4
Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).
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offenders. Under the Legislature’s instruction, and limited
by our standard of review, we find that Kyel overcame the
presumption of § 43-2933(1)(c) and that Robert subsequently
failed to prove the girls were at significant risk. Therefore,
we affirm the Court of Appeals’ affirmance of the district
court’s judgment.
1. Presumption in § 43-2933(1)(c)
(a) Statutory Scheme for
Custody Determinations
[4-6] Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change in circumstances
showing that the custodial parent is unfit or that the best inter-
ests of the child require such action.5 First, the party seeking
modification must show a material change in circumstances,
occurring after the entry of the previous custody order and
affecting the best interests of the child. Next, the party seek-
ing modification must prove that changing the child’s cus-
tody is in the child’s best interests.6 However, § 43-2933(1)
guides custody determinations when a person required to
register under SORA (offender) has access to a child. Under
§ 43-2933(3), if there is a change in circumstances regarding
§ 43-2933(1) or (2), modification is warranted.
Section 43-2933, in pertinent part, provides:
[(1)](b) No person shall be granted custody of, or
unsupervised parenting time, visitation, or other access
with, a child if anyone residing in the person’s household
is . . . a[n] offender . . . as a result of a felony conviction
in which the victim was a minor or for an offense that
would make it contrary to the best interests of the child
for such access unless the court finds that there is no
5
Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
6
State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230
(2015).
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significant risk to the child and states its reasons in writ-
ing or on the record.
(c) The fact that a child is permitted unsupervised con-
tact with a person who is required, as a result of a felony
conviction in which the victim was a minor, to be regis-
tered as a sex offender under [SORA] shall be prima facie
evidence that the child is at significant risk. When mak-
ing a determination regarding significant risk to the child,
the prima facie evidence shall constitute a presumption
affecting the burden of producing evidence. . . .
....
(3) A change in circumstances relating to subsection
(1) or (2) of this section is sufficient grounds for modifi-
cation of a previous order.
Speaking broadly, subsection (1)(a) applies in cases where
the person seeking custody is an offender. Subsection (1)(b)
governs custody determinations when a person seeking custody
resides with an offender. Both subsections (1)(a) and (1)(b)
state that custody shall not be granted “unless the court finds
that there is no significant risk to the child.” And subsection
(1)(c) imposes a statutory presumption of significant risk in
certain cases, explained further below.
[7] Subsection (1)(b) does not apply to every circumstance
in which a person seeking custody resides with an offender.
Rather, the subsection applies only if the offender committed
an underlying offense that was either a felony offense in which
the victim was a minor (felony) or an offense making the
offender’s access to a child contrary to the child’s best inter-
ests (contrary-to-interest). Subsection (1)(c) applies when an
offender has unsupervised contact with a child and the underly-
ing crime was a felony-type offense. It imposes a presumption
that there is a significant risk in these cases.
Thus, to reach subsection (1)(b), a court must ask whether a
party seeking custody (or other access) resides with an offender
who committed either an underlying felony or contrary-to-
interest-type offense. If so, subsection (1)(b) applies and the
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court shall not grant custody “unless the court finds that there
is no significant risk to the child and states its reasons in writ-
ing or on the record.” Next, to reach the subsection (1)(c)
presumption, the court must determine whether the offender
committed an underlying felony-type offense and whether the
offender is permitted unsupervised access to the child. If the
answer to both of these questions is yes, then (with exceptions
not relevant here) subsection (1)(c) provides that these facts
“shall be prima facie evidence that the child is at significant
risk. When making a determination regarding significant risk to
the child, the prima facie evidence shall constitute a presump-
tion affecting the burden of producing evidence.”
Finally, subsection (3) states that “[a] change in circum-
stances relating to subsection (1) . . . is sufficient grounds for
modification of a previous order.” We read this to mean that
if the circumstances described in subsection (1) or subsection
(2) were to arise after entry of an order, that order can be
modified. For example, if after an initial order a party with
custody moves in with an offender who committed a felony
or contrary-to-interest offense, and the child is at significant
risk, then that is a change in circumstances sufficient to mod-
ify custody.
Thomas is an offender with an underlying felony or
­contrary-to-interest offense, and he lives with Kyel, who has
custody, so subsection (1)(b) applies. Specifically, Thomas
committed a felony-type offense and also has unsupervised
contact with the children; therefore, the presumption of sig-
nificant risk under subsection (1)(c) also applies in this case.
Should the court determine that there has been a change in
circumstances placing the girls at significant risk in the con-
text of subsections (1)(b) and (c), then subsection (3) calls for
modification in Robert’s favor, unless other mitigating factors
(not relevant here) warrant retaining custody with Kyel.
The nature of the subsection (1)(c) presumption is the cen-
tral controversy for our review in this case. It is interpreted in
detail below.
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(b) Presumptions Generally
[8] Before proceeding to the merits of Robert’s arguments,
we take this opportunity to review presumptions generally. We
have noted before that the term “presumption,” though a term
of art, is often conflated with other concepts.7 Broadly, a pre-
sumption (sometimes called a rebuttable presumption) is the
evidentiary assumption of one fact (the presumed fact) based
upon proof of other facts (the predicate facts).8 The presumed
fact is taken as true unless the opponent of the presumed fact
meets a particular burden of proof.
Burden of proof is another commonly confused term. It can
mean, as relevant here, either the burden of persuasion or the
burden of production.9 The burden of persuasion requires the
party bearing the burden to convince a fact finder to a particu-
lar standard of proof.10 A burden of production requires parties
to present particular evidence, regardless of whether that evi-
dence actually persuades the finder of fact.11
[9,10] Generally, there are two types of presumptions. The
“‘bursting bubble’” presumption shifts only the burden of pro-
duction, and if that burden is met, the presumption disappears.12
As the U.S. Supreme Court explained in great depth in St.
Mary’s Honor Center v. Hicks,13 “although the . . . ­presumption
7
McGowan v. McGowan, 197 Neb. 596, 250 N.W.2d 234 (1977).
8
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L.
Ed. 2d 407 (1993).
9
See id.
10
John T. McNaughton, Burden of Production of Evidence: A Function of a
Burden of Persuasion, 68 Harv. L. Rev. 1382 (1955).
11
St. Mary’s Honor Center, supra note 8.
12
Joel S. Hjelmaas, Stepping Back From the Thicket: A Proposal for the
Treatment of Rebuttable Presumptions and Inferences, 42 Drake L. Rev.
427, 432 & n.27 (1993). See, also, R. Collin Mangrum, Mangrum on
Nebraska Evidence 129 (2016).
13
St. Mary’s Honor Center, supra note 8, 509 U.S. at 507 (emphasis in
original) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)).
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shifts the burden of production to the defendant, ‘[t]he ultimate
burden of persuading the trier of fact . . . remains at all times
with the plaintiff.’” Under the competing “Morgan” theory
of presumptions,14 a presumption shifts the burdens of both
production and persuasion, and the presumption remains in
evidence even if the opponent’s burden is met.15
Nebraska Evidence Rule 30116 has adopted the Morgan
­theory of presumptions as the default rule: “In all cases not
otherwise provided for by statute or by these rules a presump-
tion imposes on the party against whom it is directed the bur-
den of proving that the nonexistence of the presumed fact is
more probable than its existence.”
(c) Presumption in § 43-2933(1)(c)
Robert argues that § 43-2933(1)(c) is a Morgan presump-
tion, shifting both the burden of production and the burden
of persuasion. But § 43-2933(1)(c) “otherwise provides”17 a
bursting bubble presumption. In pertinent part, § 43-2933(1)(c)
provides:
The fact that a child is permitted unsupervised contact
with a person who is required, as a result of a felony con-
viction in which the victim was a minor, to be registered
as a sex offender under [SORA] shall be prima facie evi-
dence that the child is at significant risk. When making a
determination regarding significant risk to the child, the
prima facie evidence shall constitute a presumption affect-
ing the burden of producing evidence.
(Emphasis supplied.)
14
See Edmund M. Morgan, Instructing the Jury Upon Presumptions and
Burden of Proof, 47 Harv. L. Rev. 59 (1933).
15
Hjelmaas, supra note 12. See, also, Mangrum, supra note 12.
16
Neb. Evid. R. 301, Neb. Rev. Stat. § 27-301 (Reissue 2008). See, also,
28 U.S.C. app. rule 301, notes on Committee on the Judiciary, H.R. Rep.
No. 93-650 (1974) (describing original draft using “more probable than
its existence” language, now found in Nebraska’s rule, altered burden of
persuasion).
17
See Neb. Evid. R. 301.
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[11] Robert is technically correct that subsection (1)(c) does
not expressly state that rule 301 does not apply. However,
absent anything to the contrary, statutory language is to be
given its plain meaning, and a court will not look beyond
the statute or interpret it when the meaning of its words
is plain, direct, and unambiguous.18 The plain language of
§ 43-2933(1)(c) shifts only the burden of production. We
need not look beyond the scope of the statute, to rule 301, to
determine the effect of the presumption, because the statute is
unambiguous. The Legislature used clear and direct language.
To read subsection (1)(c) as imposing the same presumption
as rule 301 would render the statute’s presumption language
superfluous and meaningless.
Both Robert and Justice Connolly’s dissent raise our per
curiam decision in Watkins v. Watkins19 to assert that under
the rules of statutory construction, we are required to find
that subsection (1)(c) does more than merely shift the burden
of production. In Watkins, a father sought to modify custody
of his children because the children’s mother resided with a
registered sex offender. In that case, however, the offender had
committed an underlying misdemeanor contrary-to-­ interest
offense—not a felony offense. Therefore, we assessed whether
the offender in that case was a significant risk under subsec-
tion (1)(b) alone, without reference to the subsection (1)(c)
presumption. However, we interpreted subsection (1)(b) to
create a presumption of significant risk.
But, in retrospect, the language of subsection (1)(b) does
not support the interpretation this court made in Watkins,
and we now disapprove of our reasoning in that case to
the extent it is inconsistent with the instant opinion. Section
43-2933(1)(b) reads:
No person shall be granted custody of, or unsupervised
parenting time, visitation, or other access with, a child
18
State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919, 766 N.W.2d
134 (2009).
19
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
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if anyone residing in the person’s household is required
to register as a sex offender under [SORA] as a result
of a felony conviction in which the victim was a minor
or for an offense that would make it contrary to the best
interests of the child for such access unless the court finds
that there is no significant risk to the child and states its
reasons in writing or on the record.
Contrary to our decision in Watkins, we find the statute
requires only that the court must make a factual finding, not
that the court must find that there is a significant risk in the
absence of rebutting evidence. Thus, while subsection (1)(b)
and SORA indicate that the Legislature perceives a correlation
between sex offender criminal history and the risk that offender
poses to a child, subsection (1)(b) does not require any particu-
lar outcome based upon that criminal history alone.
Reading these subsections in the context of subsection
(1)(c) supports this interpretation. Subsection (1)(c) explicitly
establishes a presumption affecting the burden of produc-
tion. As discussed extensively above, the only two types of
presumptions are those shifting the burden of production and
those shifting both the burden of production and the burden
of persuasion.
Although we agree that the Legislature intended subsection
(1)(c) to make it more difficult for a parent to obtain or retain
custody in this situation, such intent causes us to reevaluate
Watkins—not ignore the plain language of the statute. Justice
Connolly urges us to ignore the explicit language of subsection
(1)(c) and find that subsection (1)(b) is a presumption shifting
the burden of production, and, therefore, subsection (1)(c) must
be a presumption shifting the burden of persuasion. We find
it more proper to implement the plain language of subsection
(1)(c), imposing a presumption shifting the burden of produc-
tion, and, therefore, we find subsection (1)(b) is not a burden-­
shifting presumption at all.
Justice Connolly’s dissent attempts to support its con-
trary interpretation by emphasizing language from the statute
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referring to the facts of subsection (1)(c) as “prima facie
evidence.” The dissent correctly notes, citing to Nebraska
case law, that “once a noncustodial parent establishes a prima
facie case, a custodial parent must produce evidence that, if
believed by the trier of fact, would rebut the presumption that
a plaintiff is entitled to judgment.”20 (Emphasis supplied.) But
the dissent fails to note that we have done exactly that. As we
explained in depth above, if a party presents evidence giving
rise to a presumption that shifts only the burden of produc-
tion, the opposing party may overcome that presumption with
evidence that, if believed by a reasonable fact finder, tends
to disprove the presumed fact, regardless of whether that evi-
dence ultimately persuades the court. By assessing whether
Kyel’s evidence, if believed, would rebut the presumption that
Thomas posed a significant risk, we have correctly applied
precisely the standard which the dissent accuses the court
of ignoring.
Next, Justice Connolly, citing to a Nebraska case, implies
that the court is splitting hairs, and states that “we have previ-
ously reasoned that it serves no purpose to impose a technical
understanding of a legal term in a statute when the Legislature
obviously intended a different result.”21 But, as noted, Watkins
does not actually express legislative intent; subsection (1)(b)
was not meant to establish a presumption. Therefore, we
do not find that the Legislature obviously intended the dis-
sent’s desired result. The language of the statute requires our
interpretation, and we see no indication that the Legislature
20
See, First Tennessee Bank Nat. Assn. v. Newham, 290 Neb. 273, 859
N.W.2d 569 (2015); In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d
13 (2007); Mefferd v. Sieler & Co., 267 Neb. 532, 676 N.W.2d 22 (2004);
Nebraska Pub. Emp. v. Otoe Cty., 257 Neb. 50, 595 N.W.2d 237 (1999);
Father Flanagan’s Boys’ Home v. Agnew, 256 Neb. 394, 590 N.W.2d 688
(1999).
21
See Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d
848 (2010), disapproved in part on other grounds, Hossaini v. Vaelizadeh,
283 Neb. 369, 808 N.W.2d 867 (2012).
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intended a different outcome. We decline to exaggerate the
impact of subsection (1)(c) based upon our erroneous interpre-
tation of subsection (1)(b) in Watkins.
For these reasons, to overcome the presumption under
§ 43-2933(1)(c), Kyel was required only to produce evidence
that the girls were not at significant risk.
2. Kyel’s Evidence to Overcome
§ 43-2933(1)(c) Presumption
To determine whether Kyel produced evidence to overcome
the presumption of § 43-2933(1)(c), we must identify what evi-
dence might be relevant to prove or disprove that an offender
poses a significant risk of harm. The Legislature has not
defined “significant risk” in the context of § 43-2933, and we
have never directly interpreted this part of the statute. Nor can
this court locate legislative history to guide our reading of this
term. This court has found similar statutes in other jurisdictions
requiring a finding of no significant risk.22 But we have not
located case law discussing the meaning of the term thoroughly
enough to be helpful here.
However, we note that the Legislature has found that sex
offenders pose a high risk of recidivism.23 And regulations
formerly used by the Nebraska State Patrol, under authority
granted by SORA, categorized “risk” to determine how likely
an offender was to commit a repeat offense.24 Therefore, we
conclude that the harm contemplated in § 43-2933 refers to the
probability that an offender will commit another sex offense,
harming the child in question.
[12] The risk that an offender will reoffend need not be
high or even probable in order to warrant a modification of
custody under § 43-2933. The plain meaning of “significant,”
22
See, Ariz. Rev. Stat. Ann. § 25-403.05 (2007); Cal. Fam. Code §§ 3030
and 3030.5 (West Cum. Supp. 2016).
23
See Neb. Rev. Stat. § 29-4002 (Reissue 2008).
24
See 272 Neb. Admin. Code, ch. 19, attach. B (2003).
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as relevant here, is “[s]ufficiently great or important to be
worthy of attention.”25 Thus, § 43-2933 requires a trial court
to consider whether, in its discretion, a sex offender poses a
risk, sufficiently great or important to be worthy of attention,
of committing a sexual offense against the child or children
in question.
We have discovered little authority to clarify what evidence
may be necessary in order to measure risk. And we do not
presume to name an exhaustive list of circumstances which
might indicate the presence or absence of a significant risk of
harm. Nor do we limit the method by which the risk of harm
may be established. Instead, we note that the trial court’s
discretion is integral to this analysis. A trier of fact benefits
from the opportunity to hear and observe witnesses. Generally,
therefore, it is in a better position than appellate courts to
make credibility determinations essential to the assessment of
significant risk.
As discussed, because Thomas is a sex offender with an
underlying felony offense and because he has unsupervised
contact with the girls, it is presumed that the girls are at sig-
nificant risk, requiring modification. Subsection (1)(c) oper-
ates to shift the burden of production—in other words, it is a
bursting bubble presumption. Thus, to overcome the presump-
tion, Kyel was required only to present evidence tending to
prove that Thomas was not a significant risk to the girls. If
she presented such evidence, then the presumption disappeared
and the district court, as trier of fact, was not required to find
that Thomas was a significant risk. Instead, the court was
called upon to weigh the evidence presented and come to its
own conclusion.
Both the district court and the Court of Appeals found
that Kyel overcame the presumption of significant risk. Both
courts referenced Thomas’ rehabilitative treatment, the lack
of any reports or suspicion of sexual offenses since 2002, the
25
Oxford Dictionaries (Oxford Univ. Press), http://www.oxforddictionaries.
com/definition/english/significant (last visited Aug. 3, 2016).
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girls’ testimony, and Schwan’s testimony. Specifically, those
courts considered Schwan’s statements that the girls had not
reported any “grooming behaviors” and that she had trained
Kyel and the girls about red flags.
This evidence met Kyel’s burden to produce evidence.
Thomas’ apparent commitment to rehabilitation, the substan-
tial passage of time since his conviction, and the lack of any
allegations against him since his release all tend to mitigate
a risk of recidivism. Thus, the § 43-2933(1)(c) presumption
disappeared and the district court was entitled to make factual
findings free from any mandatory presumption.
[13] Robert argues that the presumption was not overcome,
because the district court should not have given so much
weight to Schwan’s testimony. But, as noted, the credibility of
Kyel’s evidence should not impact its rebutting effect. “[T]he
determination that a [party] has met its burden of production
. . . can involve no credibility assessment[;] the burden-of-
production determination necessarily precedes the credibility-
assessment stage.”26
We therefore conclude that Kyel overcame the presumption
of subsection (1)(c), and Robert’s first assignment of error is
without merit.
3. Modification of Custody
In his second assignment of error, Robert argues that the
district court erred by denying his counterclaim for modifica-
tion. Modification of a dissolution decree is a matter entrusted
to the discretion of the trial court, whose order is reviewed
de novo on the record, and which will be affirmed absent an
abuse of discretion by the trial court.27 Under § 43-2933(1)(b)
and (3), if Thomas was a significant risk, such would have
been grounds for modification.
26
St. Mary’s Honor Center, supra note 8, 509 U.S. at 509 (emphasis in
original).
27
Caniglia, supra note 4.
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Once Kyel overcame the subsection (1)(c) presumption of
significant risk, the district court was free to reach its own
conclusion, within the bounds of its discretion, about whether
Robert had proved sufficient grounds.28 As in any other case,
Robert, as the party seeking modification, bore the burden of
persuasion. The subsection (1)(c) presumption had absolutely
no impact on Robert’s overall burden to prove that there were
sufficient grounds to support his claim.29
[14] It is the Legislature’s function through the enactment of
statutes to declare what is the law and public policy.30 It is not
for this court to overrule the Legislature’s policy determina-
tions. An appellate court does not sit as a superlegislature to
review the wisdom of legislative acts.31 Thus, we must apply
the presumption scheme of § 43-2933 as the Legislature has
written. We cannot replace the bursting bubble presumption
of § 43-2933 with a Morgan presumption shifting the burden
of persuasion, or with a conclusive rule that offenders like
Thomas can never have access to a child.
Further, though we conduct a de novo review on the record
in custody determinations, we will not disturb the district
court’s ruling unless the district court abused its discretion.32
A judicial abuse of discretion exists when a judge, within the
effective limits of authorized judicial power, elects to act or
refrains from acting, and the selected option results in a deci-
sion which is untenable and unfairly deprives a litigant of a
substantial right or a just result.33 Thus, we must review this
case to determine whether, without regard to the presumption
28
See St. Mary’s Honor Center, supra note 8.
29
See id.
30
In re Invol. Dissolution of Wiles Bros., 285 Neb. 920, 830 N.W.2d 474
(2013).
31
Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43
(2003).
32
Caniglia, supra note 4.
33
Salazar v. Scotts Bluff Cty., 266 Neb. 444, 665 N.W.2d 659 (2003).
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of subsection (1)(c), the district court abused its discretion
in finding that Robert had not met his burden to prove that
Thomas posed a significant risk and that modification was
not warranted.
Robert presented little evidence about the risk Thomas alleg-
edly poses. Aside from showing that Thomas had sexually
assaulted a minor 12 years prior to the trial on modification,
and some contested evidence that Kyel was not proactive about
investigating Thomas’ underlying offense, Robert produced
no evidence tending to show that Thomas was a significant
risk. We acknowledge that Thomas was charged with three
counts of sexually assaulting a child—his stepdaughter at the
time—(though he was convicted of one count of attempted
sexual assault) and that the victim was the same gender as the
two children in question. In addition, at the time of trial, one
of the girls was about the same age as Thomas’ prior victim
had been. These facts tend to weigh against a finding of no
significant risk.
On the other hand, Kyel presented substantial evidence
that Thomas was not a risk to the girls. Thomas had volun-
teered for extensive rehabilitation during his incarceration,
even after he became ineligible for parole. He had not been
investigated for any sexual wrongdoing since his release. It
had been over a decade since Thomas’ offense. And further,
Thomas expressed remorse and exhibited a highly positive
response to treatment. Moreover, there was no evidence that
Thomas had any other criminal history or that he had a psy-
chological or psychiatric condition making him a high risk
to reoffend.
In addition, we note that the girls testified they felt safe
at home. Friends of Kyel and Thomas also testified that they
did not feel he was a risk. Furthermore, Schwan, based upon
her treatment of the girls, did not think Thomas was engaging
in any grooming behaviors. Kyel and Thomas also testified
about the precautions taken in the home to make everybody
feel safe, and Thomas testified extensively about his personal
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motivations to avoid any future offenses. By all accounts, the
girls get along well living with Kyel and Thomas and appear to
be happy and healthy.
Our de novo review, therefore, reveals considerable evi-
dence that Thomas was not a significant risk to reoffend, and
only limited evidence that Thomas was a risk. We cannot say,
in light of Robert’s failure to produce more convincing evi-
dence to prove there was a significant risk, and Kyel’s abun-
dance of rebutting evidence, that the district court’s finding
was untenable.
The district court did not abuse its discretion in finding that
Thomas was not a significant risk and denying modification
of custody under § 43-2933. To come to a contrary conclusion
would require a credibility assessment; to find for Robert, we
would need to find that Kyel’s evidence lacked credibility to
such an extent that the district court’s finding was untenable.
But despite de novo review, when credible evidence on mate-
rial questions of fact is in irreconcilable conflict, an appellate
court will, when determining the weight of the evidence, con-
sider that the trial court observed the witnesses when testify-
ing, and used those observations when accepting one version
of the facts over the other.34 Thus, we decline to usurp the
district court’s role in this case.
Nor can Robert successfully argue that modification was
warranted under any other theory. To be granted modification,
Robert must prove that there has been a material change in
circumstances making modification to be in the best interests
of the children.35 Robert attempted to prove this through the
framework of § 43-2933 and did not produce evidence of any
other changes in circumstances. Because Robert proved neither
a material change in circumstances generally nor grounds for
modification under § 43-2933(3), his second assignment of
error is without merit.
34
See State ex rel. Medlin, supra note 3.
35
Schrag, supra note 5.
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VI. CONCLUSION
It is the province of the legislative branch, and not of this
court, to create policy. The court is charged with neither the
duty nor the power to question the wisdom of that policy.
Robert asks us to place a burden upon Kyel higher than the
burden legislatively imposed; essentially, Robert requests a
de facto rule that a person residing with a felony offender can
never retain custody. But the Legislature has not enacted such
a policy. The plain language of § 43-2933(1)(c) establishes
a presumption shifting only the burden of production. The
Legislature could have created a presumption against custody
with a more demanding burden. It is not within this court’s
power to expand the scope of the Legislature’s policy.
Though Kyel presented significant evidence that Thomas
was not a risk, she was not required to do so beyond her
initial burden to produce anything to overcome the presump-
tion. Thus, Robert incorrectly framed the issue by arguing that
Kyel failed to prove that Thomas was not a risk. The burden
to prove that modification was warranted remained at all times
upon Robert. And the district court did not abuse its discretion
by finding that Robert failed to meet that burden.
The decision of the Court of Appeals is affirmed.
A ffirmed.
Connolly, J., dissenting.
Let me get this straight. The female children in this case are
statutorily presumed to be at a significant risk of harm because
their mother moved them in with a felony sex offender. The
sex offender previously committed sexual assaults against a
different female child, his former stepdaughter with whom
he was living, and he now has unsupervised access to the
children who are the subject of this appeal. The children’s
therapist, on whose opinion the trial court heavily relied,
could not say whether Thomas Rott (Rott) presented a risk of
reoffending. But according to the majority, all that the mother
needs to do to overcome the statutory presumption that these
circumstances warrant a change in custody is to present any
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evidence—persuasive or not—that the sex offender does not
present a risk of harm. As a south central Nebraska sage I
knew would often say, “It just ain’t right.”
It “ain’t right” because the majority’s reasoning is con-
trary to both the Legislature’s obvious intent in Neb. Rev.
Stat. § 43-2933 (Reissue 2008) and common sense. It leaves
the noncustodial father, who is willing and able to care for
his children, feeling helpless to protect his children. And I
do not believe the Legislature intended to create a “bursting
bubble” presumption under § 43-2933(1)(c), as the majority
concludes. Nebraska’s statutes and the Legislature’s public
policy determinations are inconsistent with holding that unper-
suasive evidence is sufficient to rebut a prima facie claim
under § 43-2933(1)(c). I believe that when a custodial parent is
living with a person who has committed a felony sex offense
against a minor and giving that person unsupervised access to
the parent’s child, Neb. Evid. R. 3011 should apply to require
the parent to overcome the presumption of risk by a preponder-
ance of the evidence.
Here, we have a custodial parent who is living with a felony
sex offender and giving that person unsupervised access to her
children. This court should require evidence of an assessment,
by a qualified evaluator, to show that there is no significant
risk that this sex offender will harm these children. These facts
amply illustrate why the majority’s statutory interpretation
will lead to absurd results.
I. § 43-2933 ESTABLISHED A PRESUMPTION
OF RISK TO PROTECT CHILDREN
1. § 43-2933 Contains Three Presumptions
Although the majority avoids this problem through a tortu-
ous statutory analysis, in child custody disputes involving a
sex offender, § 43-2933(1) sets out three fact patterns that
trigger a statutory presumption that the offender presents a
1
Neb. Rev. Stat. § 27-301 (Reissue 2008).
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significant risk of harm to a child. The presumptions of risk
apply to (1) persons who have committed an offense that
requires them to register as a sex offender under the Sex
Offender Registration Act (SORA)2; (2) persons who are liv-
ing with a sex offender; and (3) persons who are giving a sex
offender unsupervised access to a child who is the subject of
the custody dispute.
The second and third fact patterns are present here. If
any presumption controls under subsection (1), then under
§ 43-2933(3), a “change in circumstances relating to subsec-
tion (1) . . . of this section is sufficient grounds for modifica-
tion of a previous order.”
Under § 43-2933(1)(a), a court shall not grant a sex offender
custody, unsupervised parenting time, visitation, or other
access to a child if the offender has committed one of three
types of SORA offenses—“unless the court finds that there is
no significant risk to the child and states its reasons in writing
or on the record.” By prohibiting the sex offender’s access to
a child—unless a court explicitly finds there would be no sig-
nificant risk—the Legislature has presumed that the offender’s
access to the child presents a significant risk of harm. Under
§ 43-2933(1)(a), that presumption exists if the SORA offense
(1) would make access to the child contrary to his or her best
interests; (2) was committed against a minor; or (3) was a
crime under “section 28-311, 28-319.01, 28-320, 28-320.01, or
28-320.02.” Under § 43-2933(3), any of these circumstances
is a sufficient reason to modify an existing custody order
unless the court finds that there is no significant risk and states
its reasoning.
Subsection (1)(b) is similar in construction to subsection
(1)(a) but applies to persons who are residing with a sex
offender. It provides that a court shall not grant such a per-
son custody, unsupervised parenting time, visitation, or other
2
See Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2008, Cum. Supp.
2014 & Supp. 2015).
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access to a child if the cohabitating sex offender committed
one of two types of SORA offenses—unless the court finds
that there is no significant risk to the child and states its rea-
soning. The presumption of significant risk of harm applies if
the cohabitating sex offender’s SORA offense (1) was a felony
offense against a minor or (2) would make access to the child
contrary to the child’s best interests.
2. A n Opponent of the Subsection (1)(b)
Presumption H as the Burden
to Overcome It
Recently, in Watkins v. Watkins,3 we unanimously held that
when § 43-2933(1)(b) is read together with § 43-2933(3), the
plain language of the statute created a presumption of risk that
justifies a change in custody unless a court makes a finding of
no significant risk:
Thus, in applying § 43-2933, a district court must first
determine whether there is an individual residing in the
household who is required to register under [SORA]
and, if so, whether the offense triggering the registration
requirement is due to a felony conviction in which the
victim was a minor, whether the offense triggering the
registration would make it contrary to the best interests
of the child whose custody is at issue, or whether the
offense does not meet either of these two descriptions. If
the district court finds the offense to be a felony involv-
ing a minor victim or an offense contrary to the best
interests of the child, § 43-2933(1)(b), there is a statu-
torily deemed change of circumstances, § 43-2933(3),
and custody shall not be granted to the person who
resides with the sex offender unless there is a finding
by the district court that the circumstances present no
significant risk. In sum, taken together, § 43-2933(1)(b)
and (3) create a statutory presumption against custody
being awarded to the person residing with a sex offender
3
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
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who committed the described offenses, but the presump-
tion can be overcome by evidence. The foregoing analy-
sis applies to this case, and the district court followed
this framework.4
Our explanation of the statutory scheme in Watkins was
obviously not limited to SORA offenses that would make a
custodial parent’s access to his or her child contrary to the
child’s best interests because he or she was living with the sex
offender. Unless a trial court makes a finding of no significant
risk, a party’s evidence that a cohabitating sex offender com-
mitted either type of specified SORA offense is a sufficient
reason to modify a custody order—without presenting any
further evidence of the offender’s risk of reoffending. This
is a legislative presumption that a person who committed
the specified crime poses a recidivism risk unless the court
finds otherwise.
In Watkins, we did not specify the type of evidence or stan-
dard of proof required to overcome the presumption. But the
burden of production clearly fell on the custodial mother. And
we did not treat the statutory presumption as a bursting bubble
presumption. There, the mother was living with a registered
sex offender and had custody of her two children from Sunday
to Wednesday of each week. But she “testified that she had not
allowed unsupervised contact between [her boyfriend] and the
children and that she would not allow unsupervised contact
in the future.”5 We noted that the mother’s boyfriend had not
committed a felony SORA offense against a minor. Yet, we
agreed with the court’s implicit finding that he had committed
an offense that would make the mother’s custody or unsu-
pervised access to the children contrary to their best interests
unless the presumption was overcome by evidence.
We set out the trial court’s extensive factfinding, including
the mother’s prohibition of unsupervised contact between her
4
Id. at 700-01, 829 N.W.2d at 649 (emphasis supplied).
5
Id. at 702, 829 N.W.2d at 650.
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boyfriend and the children when she had custody. We specifi-
cally noted that the court ordered no unsupervised contact in
the future. Under those facts, we upheld the court’s decision to
not modify the custody arrangement, based on its finding that
the children were not at significant risk.
But Watkins illustrates that a parent living with a sex
offender must produce evidence that is sufficient to rebut the
presumption of significant risk and support a court’s finding of
no significant risk. And Watkins is not distinguishable because
the boyfriend had not committed a felony sex offense against
a minor. Had he done so, § 43-2933’s requirement that the
mother rebut the presumption of significant risk of harm would
have been even more commanding. And here, Rott did commit
a felony sex offense against a minor.
3. Watkins R equires a Party to Overcome
the Subsection (1)(c) Presumption
Our reasoning in Watkins applies here because § 43-2933(1)(c)
imposes a stronger presumption than the ones created under
(1)(a) or (1)(b). Subsections (1)(a) and (b), when read together
with § 43-2933(3), both create a statutory presumption that a
court should modify a custody order unless the court finds no
significant risk. But subsection (1)(c) creates a prima facie
case that a child is at significant risk of harm if a parent is per-
mitting a sex offender to have unsupervised access to a child
and the offender committed a felony SORA offense against
a minor:
The fact that a child is permitted unsupervised contact
with a person who is required, as a result of a felony
conviction in which the victim was a minor, to be regis-
tered as a sex offender under [SORA] shall be prima facie
evidence that the child is at significant risk. When mak-
ing a determination regarding significant risk to the child,
the prima facie evidence shall constitute a presumption
affecting the burden of producing evidence. However, this
presumption shall not apply if there are factors mitigating
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against its application, including whether the other party
seeking custody, parenting time, visitation, or other access
is also required, as the result of a felony conviction
in which the victim was a minor, to register as a sex
offender under [SORA].
By creating a prima facie case, the Legislature intended to
create a stronger presumption than the ones under subsections
(1)(a) and (b), which can be rebutted solely by a court’s find-
ings of no significant risk. The Legislature would have reason-
ably concluded that once a noncustodial parent establishes a
prima facie case, a custodial parent must produce evidence
that, if believed by the trier of fact, would rebut the presump-
tion that the noncustodial parent is entitled to judgment.6
And the mere fact that the Legislature also provided that
the prima facie evidence shall affect the burden of producing
evidence does not show it intended to create a bursting bubble
presumption. The majority acknowledges that the distinction
between the burden of production and the burden of persua-
sion can be confusing. And we have previously reasoned that
it serves no purpose to impose a technical understanding of a
legal term in a statute when the Legislature obviously intended
a different result.7
Here, the Legislature could not have intended to create a
weaker presumption under subsection (1)(c) than the presump-
tion under subsection (1)(b) that we recognized in Watkins.
6
See, e.g., First Tennessee Bank Nat. Assn. v. Newham, 290 Neb. 273, 859
N.W.2d 569 (2015); In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d
13 (2007); Mefferd v. Sieler & Co., 267 Neb. 532, 676 N.W.2d 22 (2004);
Nebraska Pub. Emp. v. Otoe Cty., 257 Neb. 50, 595 N.W.2d 237 (1999);
Father Flanagan’s Boys’ Home v. Agnew, 256 Neb. 394, 590 N.W.2d 688
(1999). Compare, Siouxland Ethanol v. Sebade Bros., 290 Neb. 230, 859
N.W.2d 586 (2015); In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13
(2009).
7
See, Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d
848 (2010), disapproved in part on other grounds, Hossaini v. Vaelizadeh,
283 Neb. 369, 808 N.W.2d 867 (2012).
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Under subsection (1)(b), the sex offender must be residing
with the custodial parent. But the (1)(b) presumption applies
even if the sex offender did not commit a felony sex offense
against a minor and even if the custodial parent is not giving
the sex offender unsupervised access to his or her child. And
under Watkins, a custodial parent living with a sex offender
must rebut that presumption by producing evidence sufficient
to support a finding of no significant risk.
In contrast, the presumption under subsection (1)(c) applies
only if both of these conditions are present: i.e., (1) the sex
offender previously committed a felony sex offense against a
minor and (2) the custodial parent is giving the offender unsu-
pervised access to the child. And because these two conditions
raise greater concerns about a child’s safety, the presumption
in subsection (1)(c) applies even if the sex offender is not
living with the custodial parent. For example, it would apply
if a custodial parent were allowing a felony sex offender to
take his or her child on unsupervised hunting trips. Because
subsection (1)(c) raises greater concerns about a child’s safety,
Watkins should minimally require an opponent of the presump-
tion to present sufficient evidence to support a reasonable
finding that a child is not at significant risk of harm because
a felony sex offender, who committed a sex offense against a
minor, has unsupervised access to the child.
4. M ajority’s Overruling of Watkins Is
Contrary to the Legislature’s Intent
(a) Majority Misconstrues § 43-2933
as Creating Only One
Presumption of Risk
Applying Watkins here would avoid an interpretative incon-
sistency and a conflict with rule 301 by giving effect to the
obvious requirement in § 43-2933 that someone produce evi-
dence to support a court’s finding of “no significant risk.”
But Watkins also presents a serious obstacle to the result that
the majority wants to reach: i.e., that § 43-2933(1)(c) creates
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only a bursting bubble presumption of risk that can be over-
come with unpersuasive evidence. The majority’s solution
to this analytical hurdle is to overrule Watkins’ holding that
§ 43-2933(1)(b) creates a presumption of significant risk. Yet,
it concedes that the Legislature intended to make it more diffi-
cult for a parent to obtain or retain custody if one of the speci-
fied fact patterns under subsection (1)(c) exists. So, it comes to
the illogical conclusion that because subsection (1)(c) creates
merely a bursting bubble presumption, subsection “(1)(b) is
not a burden-shifting presumption at all.”
This statement can only be interpreted to mean that sub-
section (1)(b) creates no presumption. And the majority’s
reasoning necessarily extends to subsection (1)(a) because
it contains the same language as subsection (1)(b). If either
of these subsections created a presumption of risk, that pre-
sumption would undermine the majority’s conclusion that
subsection (1)(c) creates only a bursting bubble presump-
tion. The majority’s attempt to square a circle has distorted
the legislative intent beyond recognition, and it has done so
solely to justify an incorrect and unconvincing interpretation
of subsection (1)(c). Yet, everything about the construction
of § 43-2933 and the statutory scheme of the Parenting Act
supports our interpretation in Watkins and refutes the major-
ity’s interpretation.
(b) Majority’s Interpretation Conflicts
With the Structure of § 43-2933
The structure of § 43-2933 supports the conclusion that
subsection (1) creates three presumptions of significant risk.
The codified description of the statute explains that it deals
with presumptions: “Registered sex offender; other crimi-
nal convictions; limitation on or denial of custody or access
to child; presumption; modification of previous order.”
(Emphasis supplied.) And the three statutory presumptions
are grouped together as subsections (1)(a), (b), and (c). If the
Legislature had not intended to give the specified fact patterns
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in subsections (1)(a) and (b) presumptive effect, it would not
have grouped them with subsection (1)(c). That all three fact
patterns trigger a presumption of significant risk is further
shown by § 43-2933(3).
Section 43-2933(3) provides that a “change in circum-
stances relating to subsection (1) . . . is sufficient grounds
for modification of a previous order.” This provision cannot
be squared with the majority’s statement that “while subsec-
tion (1)(b) and SORA indicate that the Legislature perceives
a correlation between sex offender criminal history and the
risk that offender poses to a child, subsection (1)(b) does not
require any particular outcome based upon that criminal his-
tory alone.” This statement ignores the limitations in both
subsections (1)(a) and (b) on custody and visitation orders
unless the court finds no significant risk to a child. And why
would the Legislature conclude that all of the fact patterns set
out in subsections (1)(a), (b), and (c) were sufficient grounds
for a modification if they did not all trigger a presumption of
significant risk?
(c) Majority’s Interpretation Conflicts
With Presumption Principles
I disagree with the majority’s statement that regardless of
whether a rebutting party’s evidence would ultimately persuade
a court, that party can overcome the presumption of a signifi-
cant risk with evidence that “tends to disprove the presumed
fact.” Contrary to the majority’s reasoning, I do not believe
that evidence which is unpersuasive, and therefore insufficient
to support a reasonable finding contrary to the presumed fact,
can rebut a presumption—even if that presumption is charac-
terized as a bursting bubble presumption.8 Even if unpersuasive
evidence could be sufficient to rebut a statutorily presumed
fact in some cases, that rule should not apply here. Here, there
8
See 2 McCormick on Evidence § 344 (Kenneth S. Broun et al. eds., 7th ed.
2013).
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is no fact finder besides the trial court, and the court makes its
decision at the close of all the e­ vidence. So, there is no distinc-
tion between evidence that would “ultimately” persuade the
court that the presumed fact (Rott presents a significant risk to
these children) does not exist and evidence that is sufficient to
rebut the presumption.
More important, courts generally give a presumption an
effect that reflects the underlying social policy and the prob-
ability that proof of the basic fact supports an inference of
the presumed fact, and to correct an imbalance in light of one
party’s superior access to the evidence.9 Here, the Legislature
created the presumption to protect children, a policy consider-
ation that normally weighs heavily for a strong presumption.10
A sex offender or person living with a sex offender has supe-
rior access to the relevant evidence regarding the recidivism
risk to which a child is exposed. And as I discuss more later,
Nebraska’s SORA statutes presume that a sex offender presents
a recidivism risk. All of these policy considerations weigh
against concluding that unpersuasive evidence can rebut the
presumption under § 43-2933(1)(c).
(d) Majority’s Interpretation
Conflicts With Statutory
Construction Principles
Contrary to bedrock statutory construction principles, the
majority’s interpretation renders part of the statutory lan-
guage of § 43-2933(1)(a) and (b) meaningless and adds a
requirement that does not exist. The requirement that a court
find no significant risk under subsections (1)(a) and (b) is
meaningless, because under the majority’s interpretation of
§ 43-2933, only subsection (1)(c) creates a presumption of
risk. If no presumption of risk is triggered under subsections
9
See id., § 343.
10
See, Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012); 2
McCormick on Evidence, supra note 8, § 343.
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(1)(a) and (b), why would a court need to find the absence of
a significant risk?
Worse, because the majority concludes that any unpersua-
sive evidence will rebut its bursting bubble presumption, there
will always be no risk presented by a sex offender’s access
to a child unless the court finds that a significant risk exists.
The majority explicitly states, “Should the court determine
that there has been a change in circumstances placing the
girls at significant risk in the context of subsections (1)(b)
and (c), then subsection (3) calls for modification in Robert’s
favor, unless other mitigating factors (not relevant here) war-
rant retaining custody with Kyel.” (Emphasis supplied.) To
conclude that a court must find a sex offender’s access to
a child presents a significant risk, the majority necessar-
ily determines that our reasoning in Watkins was wrong. It
states that “[c]ontrary to our decision in Watkins, we find
[§ 43-2933(1)(b)] requires only that the court must make a
factual finding, not that the court must find that there is a sig-
nificant risk in the absence of rebutting evidence.” (Emphasis
in original.)
But the statute does not require a court to find that there
is a significant risk absent rebutting evidence, and we did not
hold that in Watkins. We held that the risk is presumed pre-
cisely because there is no requirement that a court find a sex
offender’s access to a child presents a significant risk when the
offender committed a specified offense under § 43-2933(1)(b).
Subsections (1)(a) and (b) required a court to find only that a
child is not at significant risk. Adding a requirement that a trial
court find a significant risk—instead of finding the absence
of a significant risk—is contrary to the plain language of the
statute, which apparently bears repeating:
(b) No person shall be granted custody of, or super-
vised parenting time, visitation, or other access with,
a child if anyone residing in the person’s household is
required to register as a sex offender under [SORA] for
[one of the described offenses] unless the court finds that
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there is no significant risk to the child and states its rea-
sons in writing or on the record.11
And if the court does not make that finding, the specified facts
are a “change in circumstances [that] is sufficient grounds for
modification of a previous order.”12 The statutory language
could not be plainer. Our analysis in Watkins is not wrong,
much less manifestly wrong.13 And our analysis in Watkins is
entirely consistent with the Legislature’s intent in overhauling
the Parenting Act in 2007.
(e) Majority’s Interpretation Conflicts
With Scheme of the Parenting Act
Section 43-2933 was enacted as part of the 2007 legislative
bill amending the Parenting Act.14 One of the stated purposes
for L.B. 554 was to recognize “the importance of maintaining
parent-child relationships while at the same time protecting
victims of abuse and neglect.”15 In the legislative findings, the
Legislature clarified that protecting children was one of the
act’s purposes:
Given the potential profound effects on children from
witnessing child abuse or neglect or domestic intimate
partner abuse, as well as being directly abused, the courts
shall recognize the duty and responsibility to keep the
child or children safe when presented with a preponder-
ance of the evidence of child abuse or neglect or domestic
intimate partner abuse . . . .16
Accordingly, every parenting plan must include “[p]rovisions
for safety when a preponderance of the evidence establishes
11
§ 43-2933(1)(b) (emphasis supplied).
12
§ 43-2933(3).
13
See Potter v. McCulla, 288 Neb. 741, 851 N.W.2d 94 (2014).
14
See 2007 Neb. Laws, L.B. 554, § 14.
15
Introducer’s Statement of Intent, L.B. 554, Judiciary Committee, 100th
Leg., 1st Sess. (Mar. 8, 2007) (emphasis supplied).
16
Neb. Rev. Stat. § 43-2921 (Reissue 2008).
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child abuse or neglect, domestic intimate partner abuse, unre-
solved parental conflict, or criminal activity which is directly
harmful to a child.”17 And L.B. 554 enacted specific procedures
to carry out the purpose of protecting children. These Parenting
Act provisions also apply to modification proceedings com-
menced on or after January 1, 2008.18
When parties contest temporary custody and visitation
orders, they must file a “child information affidavit” that
includes “any circumstances of child abuse or neglect . . .
that are likely to pose a risk to the child.”19 After a hearing, a
court’s temporary parenting order must include “provisions for
safety and a transition plan, consistent with any court’s finding
of child abuse or neglect.”20
Similarly, when a court must develop a parenting plan
because the parties have not presented one for approval,21 it
must impose limitations to protect a child from harm if it finds
by a preponderance of the evidence that a parent has com-
mitted specified acts, including child abuse or neglect.22 The
many possible limitations include changing the custody alloca-
tion, requiring supervised visitation and parenting time, and
restraining a parent from communicating with a child.23
Significantly, § 43-2932, the statute immediately preceding
the statute at issue here, sets out the burden of proof require-
ment when a court finds that a parent has engaged in a speci-
fied act: “The parent found to have engaged in the behavior
specified in subsection (1) of this section has the burden
of proving that legal or physical custody, parenting time,
17
Neb. Rev. Stat. § 43-2929(1)(b)(ix) (Supp. 2015).
18
See Neb. Rev. Stat. § 43-2924(1) (Reissue 2008). See, also, Neb. Rev.
Stat. § 42-364(6) (Cum. Supp. 2014).
19
Neb. Rev. Stat. § 43-2930(1) (Cum. Supp. 2014).
20
§ 43-2930(2)(d).
21
See § 43-2929.
22
See Neb. Rev. Stat. § 43-2932(1) (Cum. Supp. 2014).
23
See § 43-2932(1)(b).
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visitation, or other access to that parent will not endanger the
child or the other parent.”24 So, § 43-2932 also sets out statu-
tory presumptions that a child is placed at risk by a parent’s
previous wrongdoing unless the parent proves otherwise.
Sections 43-2932 and 43-2933 were both created as part of
the 2007 amendments to the Parenting Act.25 Section 43-2933
does not set out a separate procedure from the one created
by § 43-2932. It sets out separate and stronger presumptions
of risk and limitations on what a court can order in a par-
enting plan when a custody dispute involves a sex offender.
Therefore, the procedural requirements for determining a final
parenting plan under § 43-2932 should govern. That is, con-
sistent with our holding in Watkins, the court must first find
that a parent engaged in one of the specified activities under
§ 43-2933: (1) The parent committed a specified sex offense,
(2) the parent is living with a person who committed a speci-
fied sex offense, or (3) the parent is giving a person who com-
mitted a specified sex offense unsupervised access to his or
her child. If the court finds that a parent committed a specified
act by a preponderance of the evidence, then the parent found
to have engaged in the conduct should have the burden of
proving that the child will not be endangered by the parent’s
access to the child.
Section 43-2932 and its sister statute, § 43-2933, should be
read consistently so that § 43-2932 governs the general pro-
cedures and burdens of proof. Otherwise, under § 43-2932, if
a court finds that a parent has been convicted of child abuse,
for that reason alone, the parent has the burden of proving that
his or her access to the child will not endanger the child. But
under the majority’s implicit interpretation of § 43-2933(1)(a),
if the evidence shows that a parent has been convicted of
first degree sexual assault of a child, this fact does not neces-
sitate a judicial finding that the parent’s access to a child
24
§ 43-2932(3).
25
See L.B. 554, §§ 13 and 14.
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presents no significant risk—because no meaningful statutory
presumption of risk arises. This absurdity should be sufficient
to show that the majority’s interpretation could not be the
Legislature’s intent.
(f) Majority’s Interpretation Conflicts With
the Presumption of Risk Under
the Amended SORA Statutes
As explained, the probability that proof of the basic fact
supports an inference of the presumed fact is a factor courts
consider in determining the effect to give a presumption.26
For this basic fact—proof of a felony sex offense against a
minor—the Legislature has implicitly determined that there is
a significant probability that the sex offender will reoffend for
an extended period.
Before 2009, the Nebraska State Patrol determined the reg-
istration and notification requirements for sex offenders based
on its individualized assessments of their high, moderate, or
low recidivism risk.27 In 2009, the Legislature abandoned
that requirement and enacted an offense-based system of sex
offender registration and notification rules.28 The new registra-
tion and reporting requirements rely solely on the type of “reg-
istrable offense” that a sex offender committed.
Section 29-4005 now sets out three different registration
periods for sex offenders, depending on the severity of the
offense. As relevant here, if the registrable offense was punish-
able by imprisonment for more than 1 year, the registration and
reporting period is for 25 years.29 The record shows the court
accepted Rott’s guilty plea to a reduced count of attempted
26
See 2 McCormick on Evidence, supra note 8, § 343.
27
See Slansky v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335
(2004).
28
See, 2009 Neb. Laws, L.B. 285, § 11 (codified at § 29-4013 (Cum. Supp.
2014)); Introducer’s Statement of Intent, L.B. 285, Judiciary Committee,
101st Leg., 1st Sess. (Mar. 18, 2009).
29
§ 29-4005(1)(b)(ii) (Cum. Supp. 2014).
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sexual assault under a plea agreement. It sentenced him to 5 to
8 years’ imprisonment, and attempted sexual assault is a reg-
istrable offense under § 29-4003.30 So, if Rott were convicted
today, his conviction would minimally require him to register
as a sex offender for 25 years.
Under L.B. 285, the presumed risk represented by the
severity of a sex offense is the public policy of this state and
should certainly apply when a person who has committed a
felony sex offense against a minor has unsupervised access to
a child. I believe it is inconsistent with the unrebuttable pre-
sumption of risk under the SORA statutes to conclude that a
party can rebut the presumption of risk under § 43-2933(1)(c)
with unpersuasive evidence.
(g) Nebraska Evidence Rule 301
Should Apply
In child custody modification appeals, we normally con-
duct a de novo review of the record to determine whether the
trial court abused its discretion.31 But the effect to be given a
statutory presumption and the standard of evidence required
to overcome it present questions of law that we indepen-
dently review.32
All of the considerations for determining the effect of a
presumption weigh for applying evidence rule 301 to the pre-
sumption under § 43-2933(1)(c). The Legislature’s social pol-
icy is to protect children. It has statutorily determined that the
fact of a felony sex offense against a minor has a strong cor-
relation to the risk of reoffense. And a custodial parent living
with a sex offender will have superior access to the relevant
evidence. As I explain later, the noncustodial parent cannot
30
§ 29-4003(1)(a)(i)(C) and (N) (Cum. Supp. 2014).
31
See Watkins, supra note 3.
32
See, Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667
N.W.2d 167 (2003), disapproved on other grounds, Kimminau v. Uribe
Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005); Variano v. Dial
Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).
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obtain it. So I believe that the Legislature obviously meant
that if the (1)(c) presumption is triggered and the noncustodial
parent is a suitable person to have custody, then the noncusto-
dial parent is entitled to judgment in a custody dispute unless
the custodial parent overcomes the presumed fact by a pre-
ponderance of the evidence. Any other conclusion lessens the
significance of the sex offender’s previous conduct, which is
the point of the stronger presumption.
II. MAJORITY OPINION WILL CREATE
ARBITRARY JUDGMENTS
To recap, I believe the majority misconstrues § 43-2933(1)(c)
to create a meaningless presumption of risk that bursts upon
a custodial parent’s production of unpersuasive evidence.
Therefore, a noncustodial parent will always have the burden
to prove that a sex offender’s unsupervised access to his or
her child presents a significant risk of harm. And whether a
noncustodial parent has met this burden is a matter for a trial
court’s unguided discretion.
But the majority ignores two significant problems with its
approach. First, the noncustodial parent does not have access
to the information relevant to assessing a sex offender’s recid-
ivism risk. So, a custodial parent’s claim that a sex offender
presents no risk to a child can prevail even on unpersuasive
evidence—as in this case. Upon that meager showing, the
noncustodial parent has the burden to present unavailable
evidence. Second, a trial court cannot make that assess-
ment without the input of a qualified evaluator. The majority
would presumably not hold that a trial court has discretion
to determine whether a person suffers from a mental disor-
der absent an expert’s opinion. I see no reason to treat this
issue differently.
1. Only Law Enforcement Agencies
H ave the R elevant Information
In concluding that Kyel’s evidence burst the statutory pre-
sumption, the majority relies, in part, on the lack of allegations
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against Rott since his release from prison in 2007. But Kyel,
of course, did not produce evidence showing there were no
other allegations of sex offenses against Rott. So a reader
must wonder how the lack of evidence supports the majority’s
conclusion that Kyel rebutted the presumption. This confusion
would not be surprising because the majority actually implies
that Robert had the burden to produce evidence of other sex
offense allegations to prevent this factor from weighing for
rebuttal of the presumption. Leaving aside that this implicit
reasoning turns the concept of presumptions on its head, non-
custodial parents will usually not have access to such informa-
tion unless they happen to know about other victims.
Similarly, in concluding that Robert failed to prove Rott
posed a significant risk to these children, the majority states
that Rott has not been investigated for any sexual wrongdoing
since his release from prison and that the evidence failed to
show he has any other criminal history. These statements also
impliedly impose a burden on noncustodial parents to present
such evidence once a custodial parent presents unpersuasive
evidence that a child is not at risk.
But Nebraska’s statutes prevent a noncustodial parent from
obtaining such evidence. In 2002, when the Nebraska State
Patrol still performed individualized risk assessments for sex
offenders, the Legislature enacted a measure to ensure that the
State Patrol had access to the relevant information for deter-
mining a sex offender’s recidivism risk under its assessment
instrument.33 Specifically, under the 2002 enactment, the State
Patrol’s personnel for the sex offender and community notifica-
tion division have access to
all documents that are generated by any governmental
agency that may have bearing on sex offender registra-
tion and community notification. This may include, but
is not limited to, law enforcement reports, presentence
33
See 2002 Neb. Laws, L.B. 564, § 10 (codified at § 29-4013(2)(f) (Reissue
2008) and § 29-4013(5) (Cum. Supp. 2014)).
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reports, criminal histories, birth certificates, or death cer-
tificates. . . . Access to such documents will ensure that
a fair determination of what is an appropriate registration
period is completed using the totality of all informa-
tion available.34
The State Patrol still has access to this information,
although it no longer performs individualized risk assessments.
Instead, it provides this information to the Office of Parole
Administration, which must perform an individualized risk
assessment before releasing a sex offender who is subject to a
lifetime registration requirement.35
But § 29-4009(1) restricts access to information in the sex
offender registry if a sex offender’s arrests did not result in a
conviction. Such information can only be disclosed to “law
enforcement agencies, including federal and state probation
or parole agencies, if appropriate.”36 Both § 29-4009 and
§ 29-4013(4) impose restrictions on who can access infor-
mation in the sex offender registry, and these statutes do not
include courts or private parties to a custody dispute. Likewise,
Neb. Rev. Stat. § 29-3523 (Supp. 2015) limits the information
that a member of the public can obtain about an individual’s
criminal record, particularly for dismissed charges.
In short, unlike statutorily authorized agents, noncustodial
parents cannot discover from official records whether a fel-
ony sex offender has a criminal history, other than the offense
that resulted in the public notification, or whether there are
other allegations of sex offenses. That lack of access illus-
trates the obvious reason for creating a statutory presumption.
Contrary to that legislative intent, the majority’s conclusion
that Robert failed to produce persuasive evidence of Rott’s
34
§ 29-4013 (Cum. Supp. 2014).
35
See, Neb. Rev. Stat. § 29-4019 (Reissue 2008); Neb. Rev. Stat.
§§ 83-174.02 and 83-174.03 (Reissue 2014); 272 Neb. Admin. Code, ch.
19, § 13 (2010).
36
§ 29-4009(1) (Cum. Supp. 2014).
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recidivism risk will place a formidable, if not impossible,
burden on noncustodial parents to prove their child is at a
significant risk. Sex offender registration and notification
laws exist specifically because sex offenders are presumed to
pose a risk of reoffense and have no incentive to reveal their
criminal histories.
2. Courts A re Not Equipped to Evaluate
a Sex Offender’s R ecidivism R isk
For various methodological reasons, commentators have
noted that actuarial risk assessment instruments, like the one
that the Nebraska State Patrol formerly used, underestimate
a sex offender’s long-term recidivism risk.37 As we noted in
Slansky v. Nebraska State Patrol,38 studies have shown that sex
offenders continue to present a risk for reoffending for up to
20 years after release or supervision. Nonetheless, research has
shown that the accuracy of different approaches to predicting
the long-term risk posed by sex offenders, in the aggregate,
can be ranked in the following order: (1) actuarial assessments,
like the one that the State Patrol used; (2) guided clinical
assessments that rely on the systematic professional judgment
of qualified professionals based on empirically derived instru-
ments; and (3) unstructured clinical judgment.39
But a court presiding over a child custody dispute cannot
perform an actuarial assessment because it does not have
access to the relevant information or the training to use the
instrument. And if a mental health professional’s unstruc-
tured clinical judgment is the least effective approach to
predicting a sex offender’s recidivism risk, then an untrained
trial judge obviously cannot determine that risk except
through guesswork.
37
See Andrew J. Harris, Risk Assessment and Sex Offender Community
Supervision: A Context-Specific Framework, 70 Fed. Probation 36 (Sept.
2006).
38
See Slansky, supra note 27.
39
See Harris, supra note 37.
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The majority’s reasoning illustrates the problem. It casts the
issue as a matter of determining credibility. But the noncus-
todial parent does not have access to information that would
permit an effective cross-examination of that credibility. The
majority emphasizes the lack of evidence showing Rott suffers
from a mental health condition, his remorse for his offense,
and his positive response to treatment. But despite Rott’s
sex offender treatment while in prison, this record contains
no evidence of his treatment evaluation or whether he was
diagnosed with a mental health condition that would exac-
erbate his recidivism risk. Similarly, the majority points to
the lack of allegations that he committed other sexual acts
without explaining how a noncustodial parent should obtain
this information.
These problems show that interpreting § 43-2933 as impos-
ing a bursting bubble presumption is not only contrary to the
Legislature’s intent but will result in custody decisions in
which the risk to a child is unknown. Instead, the custodial
parent, as the party living with the sex offender, should be the
one who bears the burden of proving his or her child is not at
risk, as the party who has access to the relevant information.
III. KYEL FAILED TO REBUT
THE PRESUMPTION OF A
SUBSTANTIAL RISK
The majority reduces Robert’s evidence to a concern that
Kyel had not investigated Rott’s criminal history. It concludes
that Robert’s concern was contradicted by Rott’s and Kyel’s
testimonies.
Not so. The majority incorrectly states that Robert pre-
sented no other evidence of a material change in circum-
stances other than Rott’s unsupervised access to the children.
Kyel’s failure to investigate Rott’s offense was only part of
the evidence supporting Robert’s claim that Rott presented
a significant risk to his daughters and that Kyel would not
protect them. Robert showed that Kyel had previously failed
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to protect her daughters from a sex offender and had will-
fully refused to face the risk posed to her daughters by giving
another sex offender unsupervised access to them. Moveover,
the majority omits the contradictions in Kyel’s and Rott’s
testimonies about her knowledge of his conduct before mov-
ing in with him. And it emphasizes Rott’s remorse about his
previous sex offense, while diminishing evidence that he
minimized his conduct.
I also disagree that the issue is whether Robert showed
a material change in circumstances under our case law. The
issue is whether Kyel rebutted the presumption that Rott pre-
sented a substantial risk to her children to avoid the statutorily
mandated change in circumstances under § 43-2933(3). But
Robert’s evidence was relevant to whether Kyel had rebut-
ted that presumption. And our decision in Watkins requires
that analysis.
Robert presented evidence of the basic fact—Rott’s convic-
tion of a felony sex offense against a minor—that triggered the
Legislature’s presumption that his children were at a substan-
tial risk because Rott had unsupervised access to them. Kyel
presented no evidence of Rott’s recidivism risk, despite being
the party with access to this information. So, there was no con-
flicting evidence on Rott’s recidivism risk. And if this evidence
was sufficient to rebut the presumption of risk, there is no case
in which the evidence would be insufficient. All a custodial
parent needs to say is that a sex offender who has unsupervised
access to his or her child has not yet harmed the child or taken
steps to do so. The majority has set a low bar for custodial par-
ents to circumvent the will of the Legislature.
Moreover, leaving aside the majority’s bursting bubble pre-
sumption theory, I believe it misreads the record to conclude
that Robert failed to show a material change in circumstances.
First, it ignores evidence that Kyel has previously failed to
protect her children from a sex offender. Second, it ignores
the requirements of § 29-4013 when Rott was released from
custody in 2007. The pre-2009 version of § 29-4013 required
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the Nebraska State Patrol to assess Rott’s recidivism risk.40 So
Rott’s individualized risk assessment was available to Kyel—
but not to Robert. Third, it emphasizes Rott’s participation in
sex offender treatment programs while ignoring statutes that
show this emphasis is overstated. Rott had to participate in
those treatment programs or face a civil commitment evalu-
ation before he was released.41 And if Rott was rehabilitated
or given a low risk assessment in 2007, Kyel could have pro-
duced that proof. Fourth, the majority notes that there is no
evidence of disciplinary actions taken against Rott in prison,
no evidence of his criminal history, and no evidence that he
had mental health disorders. But this evidence was also avail-
able to Kyel and not Robert. Finally, the majority ignores the
admissions of the girls’ therapist, Schwan, that she could not
say whether Rott presented a risk of reoffense.
Instead, the trial court and the majority have relied on weak
evidence that amounts to proof that because nothing has hap-
pened so far, the children are not at risk. But Rott and Kyel
both have a history of minimizing their conduct. And of course,
they had every incentive to do so. Having to take their word
for the children’s safety only emphasizes the need for a more
reliable opinion about Rott’s recidivism risk. That evidence did
not exist. And I believe that the record shows that the major-
ity’s conclusion is unsupportable.
1. Summary of Kyel’s Evidence Shows Why
M ajority Incorrectly Concludes the
Presumption of R isk Was R ebutted
Contrary to the majority’s conclusions, the evidence did not
show that these children were not at significant risk of harm.
During these proceedings in July and August 2014, Robert
and Kyel’s daughters were ages 15 and 13. Kyel also had two
40
See § 29-4013 (Reissue 2008 & Supp. 2007).
41
See 2006 Neb. Laws, L.B. 1199, § 26 (codified at § 29-4014 (Reissue
2008)).
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other daughters from other relationships who lived with her.
The youngest one was age 8, and the oldest daughter was
age 16.
(a) Factual Basis for Rott’s Criminal
Conviction and Rott’s Testimony
About His Conduct
As the U.S. Supreme Court has explained, a sex offender’s
minimizing of his or her past conduct is a serious impediment
to rehabilitation.42 And the record shows that Rott and Kyel
omitted or glossed over significant facts relevant to Rott’s
rehabilitation to minimize the risk that his unsupervised access
to the children presented. It is not pleasant to set out the fol-
lowing facts. But I believe it is necessary, because Kyel did
not produce evidence of Rott’s treatment evaluation or his
actuarial risk assessment.
Significant discrepancies existed between Rott’s testimony
and the facts underlying his sex offense conviction. As stated,
in 2003, the State charged Rott with two counts of first
degree sexual assault and one count of sexual assault of a
child for conduct occurring from May 1, 2000, to February
28, 2002. A police officer’s probable cause affidavit stated
that in November 2002, Rott’s former stepdaughter, who was
then age 14, reported that Rott had sexually assaulted her for
the past 2 years. She reported that he had touched or rubbed
her breasts and vaginal area about 12 to 14 times in the pre-
vious 2 years. She said that he had also digitally penetrated
her vagina on one occasion and penetrated her vagina with
a vibrator on one occasion. The officer further stated that in
a recorded interview, Rott admitted that he had touched and
kissed his stepdaughter’s breasts five to six times in the past 2
years, rubbed her vagina with a vibrator, and observed her as
she masturbated.
42
See McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017, 153 L. Ed. 2d 47
(2002).
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But at trial, Rott minimized and contradicted his statements
to the investigator about his conduct with his stepdaughter:
“Over about a three to four month period I had inappropriately
touched my stepdaughter, had sexual contact with her five or
six times. It started with touching of her breast to using my
finger on her vagina to using a vibrator on her vagina or clito-
ris.” Rott said that he gave this account of his conduct to Kyel
before she and her daughters moved in with him.
Rott said he and his stepdaughter had talked about her
masturbating, but that he had never watched her. He said he
did not deny this allegation in court because it was petty and
he wanted to accept responsibility for his conduct. In contrast
to his recorded statements to an officer in 2002, on cross-
examination, he explicitly denied having sexual contact with
his stepdaughter over a 2-year period. He said that the sexual
contact occurred over a 3- to 4-month period. Later, he was
asked why the threat of prison had not been a deterrent with
his stepdaughter when he clearly knew that penetrating her
was a crime. He denied penetrating her and said that when he
committed those crimes, he did not think he could go to jail
for his conduct.
Contrary to the majority’s statements, in the recorded inter-
view with an officer, Rott did not admit to digitally penetrat-
ing his stepdaughter. And the majority fails to mention that he
did admit to touching and kissing his stepdaughter’s breasts
five to six times over a 2-year period. Additionally, contrary
to his denial at trial, Rott admitted to the officer that he had
watched his stepdaughter masturbate. Finally, the probable
cause affidavit shows that his stepdaughter accused him of
penetrating her vagina with a vibrator, not simply rubbing her
with a vibrator as Rott stated.
We cannot know from this record whether Rott’s stepdaugh-
ter gave a sworn statement about his conduct. But we have
previously stated that a Nebraska State Patrol evaluator can
consider a sex offender’s sexual assault behavior as reflected
in a victim’s statement that supports a charged crime, even if
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the charge did not result in a conviction: “[T]he prosecutor’s
decision to file the charge[s] and the absence of an acquittal
or outright dismissal afford some basis for concluding that the
facts reflected in the official documentation are true.”43 We
have also observed that experts testifying in a sex offender’s
civil commitment case can rely on a sex offender’s voluntary
statements against interest.44
The majority opinion downplays both the significance of
Rott’s previous sexual assault behavior and his minimiz-
ing of his previous conduct. But these are factors that an
expert would consider in assessing a sex offender’s reha-
bilitation. And the evidence showed that both Rott and Kyel
had concealed or minimized his previous conduct. Moreover,
they contradicted each other regarding Kyel’s knowledge of
his conduct.
(b) Rott and Kyel Minimized or Concealed
Rott’s Sexual Assault Behavior
Kyel began dating Rott in May 2010, about 3 years after
he was released from prison. Kyel said that Rott told her his
criminal history and had been honest about what he had done.
She said that she knew he was a registered sex offender and
that the crime involved his stepdaughter. Kyel testified that she
“called the hot line for the child protective services” and spoke
with her family members before deciding to move in with Rott
in September 2011. They married in June 2012. But on cross-
examination, Kyel admitted that she moved in with Rott about
3 months after she started dating him in 2010. Rott’s testimony
confirmed that Kyel and her children moved in with him in
August 2010 after they had dated for 3 months.
In July 2013, Robert told one of his daughters not to
trust Rott after he saw Rott’s sex offender status online. The
43
McCray v. Nebraska State Patrol, 271 Neb. 1, 15, 710 N.W.2d 300, 311
(2006).
44
See In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).
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daughter’s anger at learning this information caused problems
in Kyel’s home. Robert’s daughters both started therapy with
Schwan in August 2013, shortly after his daughter found out
about Rott’s status.
During Schwan’s pretreatment assessment, Kyel reported
that the sexual assault allegations against Rott resulted from
his going through a bad divorce. In contrast, Rott testified
that by June 2010, Kyel knew that he had had sexual contact
with his 14-year-old stepdaughter and that the charges against
him were not the result of a messy divorce. Kyel told Schwan
that she did not want to think about Rott’s sex offender sta-
tus and had pushed it to the back of her mind. Kyel admitted
on cross-examination that she did not know the details of
what Rott had done until after she started therapy sessions
with Schwan.
In fact, the truth about Rott’s previous conduct came to light
only because Kyel’s statements prompted Schwan to investi-
gate. Schwan obtained Rott’s prescreening report for inpatient
sex offender treatment at the Lincoln Regional Center. This
treatment occurred before Rott was released from custody in
2007. Schwan said at the time of the prescreening assessment
that Rott had admitted to teaching his stepdaughter “how to
French kiss,” touching her vaginal area twice, and having
sexual contact with her six to eight times.
Because Kyel had minimized Rott’s conduct, Schwan went
over this information with her. She encouraged Kyel to tell her
daughters about Rott’s past for their own protection because
keeping things a secret “increases the risk.” Kyel told her
daugthers about Rott’s past during a September 2013 therapy
session. This was more than 3 years after Kyel had moved
her daughters in with Rott. One daughter said that Kyel told
her something happened with Rott’s daughter when he was
married to another woman but that no one had told her the
whole story.
But on cross-examination, Schwan said that Kyel only
reported to her what Rott had told Kyel about his going
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through a bad divorce. Schwan was concerned that Rott had
minimized his conduct. Yet, she did not know whether his
minimizing was indicative of a risk to reoffend, because she
was not his therapist and had not met with him. She said that
she could see only what the Lincoln Regional Center report
said. It is not clear why Schwan could not obtain informa-
tion about Rott’s treatment evaluation or his risk assessment
if she could access his pretreatment assessment. The majority
acknowledges that Schwan reviewed some of Rott’s prison
records that were not presented at trial. But the crucial point
is that Schwan specifically stated that she could not personally
say whether Rott had been rehabilitated or whether he pre-
sented a risk to reoffend. Rott said he had successfully com-
pleted the inpatient sex offender treatment program and had
received documentation to show it. But Kyel did not produce
that documentation.
In addition, Kyel’s personal history raised concerns that she
would not protect her daughters from sexual abuse. Schwan’s
pretreatment assessment showed that Kyel had minimized her
former boyfriend’s sexual abuse of her oldest daughter. Kyel
reported to Schwan that one of her daughters had been in coun-
seling when she was about age 5 or 6 because Robert’s father
and mother had alleged that Kyel’s former boyfriend might
have sexually abused her oldest daughter and that the other
daughter might have witnessed it. Kyel reported to Schwan that
after a law enforcement interview, the boyfriend was asked to
leave the house.
But Schwan testified that the former boyfriend had sex­
ually assaulted Kyel’s oldest daughter. The evidence showed
that the State had originally charged the former boyfriend with
first degree sexual assault. But under a plea agreement, the
court convicted him of attempted sexual assault on a child.
Schwan acknowledged that Kyel’s relationship with another
sex offender created concern that she might “have blinders
on for what was going on” and not set appropriate bounda­
ries. Schwan admitted that she was concerned that Kyel had
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not told her daughters about Rott’s past until Schwan encour-
aged her to do so and that she was reluctant to acknowledge
the seriousness of his conduct. And she admitted that Kyel’s
conduct in moving her daughters in with Rott without knowing
the extent of what he had done was concerning. But she said
that she was not Kyel’s therapist when Kyel made that decision
and could only give Kyel suggestions for dealing with the cur-
rent situation.
Nevertheless, Schwan encouraged Kyel to see a therapist
for herself, in part because Kyel had also been sexually abused
as a child. She said that research has shown this history cre-
ates a risk that a woman might not recognize red flags when
her children are at risk for sexual abuse. Schwan believed
Kyel was working on recognizing warning signs, but she said
that working on her own issues in therapy would help. Schwan
did not know whether Kyel had complied.
The fact remains that Kyel did not tell her daughters about
Rott until one daughter learned about his status from Robert.
Kyel’s excuse was that she did not want her daughters to be
stigmatized if it got around school that their stepfather was
a sex offender. But she also said that if one of her daughters
invited a friend over, she would tell the parent that Rott was
a registered sex offender. Kyel also did not tell Robert about
Rott’s history.
(c) Household Precautions
The majority emphasizes that the “household takes pre-
cautions such as ensuring there is a lock on the bathroom
door, adjusting shower schedules, establishing a dress code,
having the girls change in private, and limiting [Rott’s] time
alone with one child.” But Kyel said that she and Rott had
taken precautions around the house because the girls were
not used to living with a male, not because of Rott’s history.
Rott similarly said he and Kyel took precautions to make the
children and their friends feel safe, not because he was a risk
to them.
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More troubling, Rott had significant unsupervised access to
the children. Kyel acknowledged that two safety precautions
she had discussed in therapy were avoiding secrets and avoid-
ing her daughters’ spending time alone with Rott. Nonetheless,
she said that one daughter had gone hunting with Rott alone “a
couple of times.” Rott said he did not spend time alone with
just one child “unless you want to call going hunting for two
hours” time alone. Kyel’s working hours were usually from 6
a.m. to 2:15 p.m. Rott said he was home alone with the chil-
dren from about 6 to 7 a.m. when he left for work.
(d) Schwan Offers No Opinion
on Rott’s Risk of Reoffense
Despite Schwan’s stated concerns about Kyel’s judgment and
past conduct and despite Schwan’s inability to assess whether
Rott presented a recidivism risk, she opined that the children
were not at risk living with Kyel. She said she had worked
with the children to determine if appropriate boundaries were
in place in the home and whether any red flags indicating a
risk were present, particularly grooming behaviors. She had
not perceived any and did not see any need for a safety plan.
Her focus was on the family’s not having secrets. And she said
that the children had not reported anything to make her think
that they would be unsafe living with Rott.
But on cross-examination, Schwan acknowledged that the
children had not told Kyel about incidents involving Rott’s
explosive temper until she encouraged them to do so in
therapy. Once, while driving very fast on a gravel road, Rott
had slammed on his car’s brakes when he became angry with
the children for not doing their chores. Another time, he had
thrown a brick at a Quonset building when he was angry with
one of the children, who had also seen him punch a grain
bin and did not tell Kyel. But these incidents did not cause
Schwan to think that Rott presented a significant risk of
harm. This same child said Rott had never hit her and denied
feeling endangered by him. But she did not talk to him much
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and said that his anger was a factor that weighed against her
living with Kyel.
2. Evidence Was Insufficient to
Show No Significant R isk
Rott’s and Kyel’s testimonies were inconsistent on why
Kyel minimized Rott’s conduct to Schwan. Was it because
Rott had minimized his account to Kyel? Or did Kyel mini-
mize his conduct to Schwan, despite knowing the full extent
of what he had done? Schwan believed that Rott had mini-
mized to Kyel his previous sexual assaults. But contrary to
the majority’s opinion, Rott’s and Kyel’s testimonies did not
refute Robert’s claim that Kyel took no steps to investigate
Rott’s criminal history before moving her children in with
him. Schwan specifically testified that she was concerned by
Kyel’s moving in with Rott without knowing the full extent of
what he had done.
The record shows that Schwan’s investigation into Rott’s
criminal history is the only reason that Kyel ever provided
any information to her daughters about Rott’s past. Her excuse
that she did not want to stigmatize them at school cannot
be reconciled with her testimony that she told their friends’
parents about Rott’s sex offender status. Kyel also refused
to tell Robert about Rott’s status, thus concealing her poor
judgment—because Robert would have known that this was
the second time that Kyel and her daughters had lived with a
sex offender. Minimally, the evidence strongly suggested that
because of Kyel’s desire to maintain an emotional attachment
to Rott, she would resist an honest assessment of evidence that
Rott posed a risk to her daughters.
Unsurprisingly, Rott’s criminal history, coupled with Kyel’s
history of living with a different sex offender who had sex­
ually assaulted her oldest daughter, caused Schwan to ques-
tion Kyel’s judgment and ability to protect her daughters.
And Schwan was concerned about Rott’s minimizing of his
sexual assault behavior, a known impediment to rehabilitation.
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Yet, despite Schwan’s investigation into Rott’s sex offender
treatment, she could not opine whether he presented a recidi-
vism risk.
The majority, like the lower courts, relied, in part, on Rott’s
participation in sex offender treatment programs to conclude
that Kyel had rebutted the presumption of risk. But Rott’s
treatment evaluation would be significant evidence of his risk,
and Kyel did not produce it. So Rott’s statement that he had
satisfactorily completed the treatment did not show that he had
been rehabilitated or rebut the presumption of significant risk
absent evidence of his treatment evaluation showing that he
did not present such a risk.
In the light of Schwan’s concerns about Kyel’s poor judg-
ment and her admission that she did not know whether
Rott had been rehabilitated or presented a recidivism risk,
Schwan’s opinion that these children were not at risk was
unpersuasive. The supposed household precautions did not
allay concerns about Kyel’s judgment or Rott’s recidivism
risk. Schwan would not have asked Kyel to take precautions
if there was no risk. And Schwan was curiously unconcerned
about evidence that Rott could not control his anger impulses
around the children. Research has shown that apart from a
sexual interest in children, the second strongest predictive fac-
tor of sexual recidivism is an “antisocial lifestyle and orienta-
tion, as characterized by . . . ‘reckless, impulsive behavior.’”45
Lifestyle impulsivity has a well-established correlation with
sexual recidivism.46
Schwan’s failure to evaluate Rott’s recidivism with known
risk factors may be consistent with her statements that she
was not his therapist. But her testimony failed to show that the
45
Harris, supra note 37 at 37.
46
See, Cortney E. Lollar, Child Pornography and the Restitution Revolution,
103 J. Crim. L. & Criminology 343 (2013); Robert A. Prentky et al.,
Recidivisim Rates Among Child Molesters and Rapists: A Methodological
Analysis, 21 Law & Hum. Behav. 635 (1997).
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children were not at risk. And the “considerable weight” that
the trial court placed on Schwan’s testimony was contrary to
Schwan’s acknowledgment that she could not opine whether
Rott had been rehabilitated or presented a recidivism risk.
Moreover, all the evidence—if it existed—to rebut the pre-
sumption of a significant risk of harm was available to Kyel
through Rott. She could have presented his risk assessment, the
length of his required registration, and his treatment evaluation
to prove that he did not have a significant risk of reoffense.
Because she failed to present any of this evidence, the record
suggests the documentation would not have been favorable
to her. Alternatively, she could have obtained the opinion of
a professional qualified to assess Rott’s recidivism risk. As
stated, an individualized psychological assessment is another
means of showing no significant risk of recidivism.
But any sex offender and any custodial parent choosing to
live with a felony sex offender will have incentive to claim that
the offender is rehabilitated and that the parent’s child is not at
risk—even if the sex offender has actually been assessed with
a high recidivism risk. As noted, sex offenders can pre­sent a
recidivism risk up to 20 years after release or supervision.47 So,
no matter how credible such testimony appears, a trial court
will not know the real risk a child is exposed to absent a valid
risk assessment. I believe that concluding that the presumption
of risk is rebutted by self-serving testimony and the opinion of
a witness who has not performed a valid risk assessment will
lead to absurd results that place children at risk.
Robert did not have access to the information for a reliable
risk assessment. And under Watkins, he was not required to
present it. Nor did the court have the information or expertise
needed to assess Rott’s recidivism risk. So the burden fell on
Kyel, as the party living with a sex offender, to rebut the pre-
sumption of a significant risk by obtaining the relevant infor-
mation from Rott or obtaining a risk assessment from someone
47
See Slansky, supra note 27.
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qualified to make it. Because she failed to do so, the evidence
did not support a reasonable finding that the children were not
at significant risk of harm, much less rebut the presumption by
a preponderance of the evidence.
As stated, the effect to be given a statutory presumption
and the type of evidence required to overcome it present ques-
tions of law that we independently review.48 When a child is
living with a person who has previously committed a felony
sex offense against a minor and has unsupervised access to the
child, I would hold that evidence of a valid risk assessment is
required to rebut the presumption of significant risk. Absent
a valid risk assessment, a court’s conclusion that the offender
poses no significant risk to the child is unsupportable and
untenable. I conclude that Kyel failed to rebut the presump-
tion under § 43-2933(1)(c) as a matter of law and that the trial
court abused its discretion in concluding otherwise.
Because the presumption controls, Robert has met his bur-
den of showing that a statutorily mandated change of circum-
stances exists to support a change of custody, regardless of
whether the evidence would be sufficient to show a mate-
rial change in circumstances under our case law. I would
reverse, and remand with instructions for the Nebraska Court
of Appeals to instruct the district court to modify the custody
disposition to make Robert the primary custodian and to con-
sider the circumstances under which Kyel would be permit-
ted visitation.
48
See Dawes, supra note 32.
Miller-Lerman, J., dissenting.
For purposes of this dissent, I accept and apply the legal
framework adopted by the majority, but I respectfully dis-
sent from the majority’s assessment of the evidence. Upon
my review de novo on the record, I believe that the district
court erred when it denied Robert’s counterclaim for modifi-
cation and that the Nebraska Court of Appeals erred when it
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affirmed that decision. I would reverse, and award custody
to Robert.
Taken as a whole, the evidence shows that the environment
surrounding Thomas’ prior felony sexual assault crime bears a
strong resemblance to the current domestic setup. Kyel remains
largely in denial, and the therapist who testified as to the risk
Thomas may pose had never interviewed Thomas.
In my view, the record contains convincing evidence that
Thomas posed a significant risk of harm. Thomas was con-
victed of a felony count of attempted sexual assault, after being
originally charged with two counts of sexual assault in the first
degree and one count of sexual assault of a child. The assault
victim was a minor who was Thomas’ teenaged stepdaughter,
similar to the children at issue in this case.
Thomas admitted to fondling and digitally penetrating the
victim, but minimized the seriousness of his actions by claim-
ing there were fewer instances over a shorter period of time
than that alleged by the victim.
The evidence shows that Kyel is reluctant to acknowledge
the extent of Thomas’ criminal behavior, and she admits that
she would prefer to ignore Thomas’ sex offender history. Kyel
has previously failed to recognize warning signs, exposing
another of her daughters to alleged molestation by a previous
love interest. It is not in the girls’ best interests to entrust their
safety to an individual who does not comprehend the hazards
posed by their situation.
The record shows that therapist Schwan never met with
Thomas and was not an expert in treating adult sex offenders;
she evidently based her assessment of Thomas on her conver-
sations with the girls and Kyel. The basis for Schwan’s opinion
is thin; Schwan’s opinion itself is not robust or convincing.
Given that Thomas’ criminal history is so concerning, and
that even Kyel’s evidence demonstrates avoidance and denial, I
would find that the evidence satisfies Robert’s burden under the
statute and shows that the girls are at significant risk. Robert
met his burden to show that modification was warranted.