State on behalf of Tina K. v. Adam B.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/10/2020 04:09 PM CDT
-1-
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
State of Nebraska on behalf of Tina K., as
mother and next friend of Destiny B., a minor
child, appellee, v. Adam B., third-party
plaintiff, appellee, Tina K., third-party
defendant, appellant, and Jo K.,
intervenor-appellee.
___ N.W.2d ___
Filed September 4, 2020. No. S-19-448.
1. Constitutional Law: Parental Rights. Parents have a fundamental right
to make decisions concerning the care, custody, and control of their chil-
dren that is constitutionally protected.
2. Constitutional Law: Parent and Child. Establishment and continuance
of the parent-child relationship is the most fundamental right a child
possesses to be equated in importance with personal liberty and the most
basic constitutional rights.
3. Child Custody: Parent and Child: Presumptions. The parental prefer-
ence principle establishes a rebuttable presumption that the best interests
of the child are served by placing custody of a minor child with his or
her parent.
4. Child Custody: Parental Rights: Proof. Under the parental preference
principle, absent proof that a parent is unfit or has forfeited the right to
custody, a parent may not be deprived of the custody of a minor child.
5. Child Custody: Parental Rights. While the best interests of the child
remain the lodestar of child custody disputes, a parent’s superior right to
custody must be given its due regard, and absent its negation, a parent
retains the right to custody over his or her child.
6. Parent and Child: Words and Phrases. Parental unfitness means a
personal deficiency or incapacity that has prevented, or will probably
prevent, performance of a reasonable parental obligation in child rear-
ing and that has caused, or probably will result in, detriment to a child’s
well-being.
-2-
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
7. Parent and Child: Evidence. Evidence of parental unfitness should be
focused upon a parent’s ability to care for a child, and not any other
moral failings a parent may have. Evidence of a parent’s past failings is
pertinent only insofar as it suggests present or future faults.
8. Parental Rights. Parental rights may be forfeited by substantial, con-
tinuous, and repeated neglect of a child and a failure to discharge the
duties of parental care and protection.
9. Child Custody: Parental Rights: Proof. Clear and convincing evi-
dence of substantial, continuous, and repeated neglect of a child must be
shown in order to overcome the parent’s superior right.
10. Child Custody: Parental Rights. Allowing a third party to take cus-
tody, even for a significant period of time, is not the equivalent to for-
feiting parental preference.
11. Parent and Child. In loco parentis status is not equivalent to status as
a parent.
12. ____. In loco parentis status does not entitle a person to all the same
rights that a legal parent would enjoy.
13. ____. In loco parentis status does not, by itself, eclipse the superior
nature of the parental preference accorded to biological or adoptive
parentage.
14. Parental Rights: Proof. In order for exceptional circumstances to
negate the parental preference principle, there must be proof of serious
physical or psychological harm to the child or a substantial likelihood of
such harm.
Appeal from the District Court for Lancaster County:
Jodi L. Nelson, Judge. Reversed and remanded for further
proceedings.
Mary C. Byrd, of Byrd & Greve Law, L.L.C., for appellant.
Matthew P. Saathoff and Donald E. Loudner III, of Saathoff
Law Group, P.C., L.L.O., for intervenor-appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
After finding a child’s mother to be a fit parent, the district
court found that parental preference was negated based on the
child’s best interests and awarded custody to an individual
-3-
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
standing in loco parentis. We refine our standard for an excep-
tional case where a child’s best interests can negate the paren-
tal preference principle. Because the district court did not have
the benefit of this articulation, we reverse, and remand for
reconsideration under the proper standard.
BACKGROUND
Prior Proceedings
In 2006, the State filed a complaint to establish paternity
and support of Destiny B., a child born in July 2003 to Tina K.
and Adam B. In March 2006, the State obtained a default order
against Adam.
In November 2007, Adam filed an application to modify the
default order. He alleged that it did not determine Destiny’s cus-
tody and that a material change of circumstances had occurred
because she was in Adam’s custody. The court entered an ex
parte temporary custody order in favor of Adam. In February
2008, the court entered an order, pursuant to Adam’s and Tina’s
stipulation, which awarded Adam physical custody of Destiny
and provided Tina with supervised visitation.
In October 2011, Tina filed a complaint to modify child cus-
tody. She alleged that Destiny had been with her for nearly a
month while Adam was without a permanent residence. Adam
consented to entry of a temporary order; thus, the court awarded
Tina temporary custody of Destiny. In January 2013, the court
dismissed Tina’s complaint for want of prosecution.
Current Proceeding
In January 2017, Tina filed a complaint to modify. She
alleged that a material change of circumstances had occurred
since the February 2008 order. Specifically, Tina alleged that
Destiny had not lived with Adam since 2011, that Destiny lived
exclusively with Tina from September 2011 to the beginning
of 2014, and that Destiny had lived with Jo K., with frequent
visitation by Tina, since 2015. Tina sought to be awarded sole
physical custody.
-4-
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
In August 2017, after being allowed to intervene, Jo filed a
complaint. Jo alleged that she was Destiny’s primary caretaker,
that she stood in loco parentis over Destiny, and that Destiny
had been in her custody since February 2014 with the consent
of Adam and Tina and pursuant to valid temporary delegations
of parental powers. Jo’s complaint did not specifically request
custody of Destiny, but she sought to intervene in order to
“seek relief regarding any other matter affecting or concerning
the welfare and best interests of the minor child.”
Trial
In September 2018, a trial commenced on Tina’s complaint
to modify and Jo’s complaint in intervention. At that time,
Destiny was 15 years old.
Tina and Adam lived together for 7 to 8 months after
Destiny’s birth. According to Tina, Adam then moved out of
Tina’s apartment and Destiny remained with Tina until 2008.
On the other hand, Adam testified that he was Destiny’s pri-
mary parent from her birth until 2010 and that Tina rarely
spent time with Destiny when she was between the ages of 2
and 10.
Adam testified that Tina used drugs before and after
Destiny’s birth. He observed Tina to be under the influence
of methamphetamine many times over a significant period
of time. In 2008, when Destiny was almost 5 years old, Tina
was convicted of attempted delivery of a controlled substance.
Adam obtained custody of Destiny at that time. While Tina
served her sentence, she did not see Destiny but mailed letters
weekly to stay in touch.
According to Adam, Tina was Destiny’s primary parent from
2010 to 2013. In September 2011, Tina and Destiny moved to
Lincoln, Nebraska. Tina enrolled Destiny in school, located
a doctor and dentist for her, and took care of all of Destiny’s
needs. Destiny’s school records showed that she had a signifi-
cant number of absences while attending school in Lincoln.
In early 2013, Tina was using and selling methamphetamine.
Although Destiny was in Tina’s custody at the time, Destiny
-5-
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
was not present when Tina was actively selling drugs. Tina
stopped using and selling drugs in April, when she suspected
she was pregnant.
Tina was convicted of attempted delivery of a controlled
substance in connection with a March 2013 drug transaction.
She began serving her sentence in February 2014 and planned
for Destiny to remain with the father of Tina’s newborn child
during her incarceration. However, Adam removed Destiny
after approximately 3 weeks. He arranged for Destiny to live
with Jo, an “old family friend” whom Tina had known for over
25 years.
While incarcerated, Tina kept in communication with
Destiny. Jo brought Destiny to the prison for visitation with
Tina every other week. On a weekly basis, Tina wrote letters to
Destiny and spoke on the telephone with her. Tina was incar-
cerated until November 2014 and then was on work release
until January 2015.
Upon release, Tina recognized she lacked stability and there-
fore did not immediately seek Destiny’s return. Tina explained
that she needed housing and money. And Tina acknowledged
that Destiny was doing well in Jo’s care. But Tina testified that
since her release in January 2015, she had seen Destiny four
times a month, and that Destiny typically would spend the night
with Tina every other weekend or every third weekend.
By June 2015, Tina had obtained employment and a resi-
dence. That summer, Tina told Jo that she wanted Destiny
to live with Tina. According to Tina, Jo was receptive to
the idea, as long as Tina was “working and everything was
stable and [Tina] was on [her] feet.” But Tina was living in
a one-bedroom apartment, and she wanted a larger residence
so Destiny would have her own bedroom. In May 2016, Tina
saved enough money for a two-bedroom apartment. In the
summer, Tina again broached the subject with Jo of having
Destiny back in Tina’s care. Jo responded that Tina “needed to
do it legally.” Tina then saved money to hire attorneys. Tina
believed that she was now a fit and stable parent who could
provide for Destiny’s needs.
-6-
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
In the summer of 2017, Tina picked up Destiny and “just
was going to keep her.” She informed Jo after the fact. That
night, Jo and Adam went to Tina’s apartment to get Destiny.
After that incident, Jo’s demeanor toward Tina changed. Jo did
not want Tina to see Destiny and wanted visits to be super-
vised. Prior to being incarcerated, Tina had a close relationship
with Jo. But Tina testified that at the time of trial, she had a
strong dislike for Jo because “nobody asked Jo to step in when
she wasn’t needed and take Destiny.”
With regard to parenting time with Destiny, Tina testi-
fied that sometimes she and Jo met, sometimes Tina picked
up Destiny, and sometimes Tina had someone else pick up
Destiny. Tina’s car was unreliable and did not have license
plates. During trial, Tina bought a different car. She explained,
“Well, it seemed like it would be a — a big deal that I didn’t
have transportation; so I just wanted to make sure . . . I can
provide transportation.”
Jo testified that she has “always been in [Destiny’s] life”
and that her level of involvement increased as Destiny aged.
Tina and Destiny lived with Jo from November 2013 until
mid-February 2014. For the past 5 years, Jo made all of the
decisions regarding Destiny’s upbringing, care, education, and
medical treatment. Tina agreed that Jo has stood in loco paren-
tis. Tina’s proposed parenting plan provided for visitation with
Jo. She believed it would be in Destiny’s best interests to
continue to have a relationship with Jo and supported such a
relationship.
There was no dispute that Destiny is involved in activities
in Gretna, Nebraska, where she lives with Jo, and that her life
is established there. Jo testified that Destiny has many friends
in the Gretna area and that she is well-bonded to a lot of her
friends. Jo worried about stability and routine for Destiny if
she returned to Lincoln.
Tina testified that she would change Destiny’s school if
she obtained custody. Adam believed that Destiny wanted
to graduate from high school in Gretna rather than change
schools again. He explained that in Lincoln, Destiny “jumped
-7-
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
from school to school to school,” but that now she has stability
and “she needs to continue that stability until she’s an adult.”
According to Adam, Destiny achieved placement on the honor
roll within 6 months of being in the Gretna school system and
had maintained that honor.
Adam did not want Tina to have custody of Destiny and
wished to have Destiny continue being parented by Jo. Adam
thought it would be traumatic to Destiny to uproot her.
In April 2014, Jo arranged for Destiny to have counseling
with Joanie Hansen, a licensed independent mental health
care practitioner. Hansen testified that she typically would see
Destiny once a week, sometimes twice a week if Destiny had
a weekend with Tina. When therapy began, Destiny was lying,
stealing, and cheating. Destiny’s grades in school were poor,
with some of them being failing, and she had difficulty concen-
trating. Destiny also was having angry outbursts. Hansen testi-
fied that Destiny was frustrated with her parents and had been
acting out in frustration. With Jo, Destiny had a stable home,
rules, and guidelines. Hansen observed positive changes over
the 4 years she worked with Destiny. Destiny would no longer
steal or lie, and her grades had improved.
Hansen testified that Destiny is a “people pleaser.” Destiny
told Hansen that “she has to tell her mom that she wants to live
[with Tina] or she’ll get yelled at, because any time she dis-
agrees with her mom, her mom yells at her.” Within the month
before trial, Destiny had told Hansen that she wanted to live in
Gretna but Destiny was too scared to tell Tina. Hansen testi-
fied that Destiny had consistently said she wanted to live in
Gretna with Jo, but on cross-examination, Hansen testified that
Destiny wavered back and forth regarding where she wanted
to live, which Hansen attributed to guilt. She explained that
Destiny would say she wanted to live in Gretna but that doing
so would upset Tina.
Hansen testified that Destiny would be frustrated and angry
after spending a weekend with Tina and that it would take
Destiny a couple of days to adjust. Hansen had observed
Destiny to be more despondent, depressed, and agitated after
-8-
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
a visit with Tina. On the other hand, when Destiny would
have weeks without a weekend with Tina, Destiny would be
stable and secure.
Hansen feared that the therapeutic relationship would be
discontinued if Destiny moved to Lincoln and that such dis-
continuation would be detrimental to Destiny. Tina testified
that she had the ability to transport Destiny to see Hansen on
a regular basis and that “no matter what happens, I’d always
like Destiny to continue care with her.” Hansen also believed it
would be detrimental to move Destiny from the Gretna school
system, because Destiny was well established and was in high
school. She believed it was in Destiny’s best interests to remain
in Gretna with Jo.
The parties agreed not to call Destiny as a witness, and Jo’s
counsel offered into evidence Destiny’s deposition. Although
we have considered Destiny’s testimony, we will not sum-
marize the contents of the confidential deposition. The record
shows that Destiny’s deposition was taken at Hansen’s office
and that by stipulation, neither Jo nor Tina were to attend.
But Hansen testified that Tina was “there” when Destiny
arrived. According to Hansen, “they were kind of yelling in
the parking lot.” Hansen could not hear what was said and
had “no idea what they were talking about.” Hansen testified
that Destiny was “uptight” at the beginning of the deposition,
and Hansen was “not sure if that had to do with the parking
lot encounter.”
Trial Court’s Decision
In April 2019, the court entered an extensive order of modi-
fication. It accepted Adam’s testimony that Destiny remained
with him when he moved out of Tina’s residence while
Destiny was an infant. The court noted two material changes
in circumstances: Jo’s standing in loco parentis to Destiny and
Adam’s admission that he was not in a position to be the cus-
todial parent.
The court acknowledged the parental preference doctrine.
The court stated that there was a presumption in favor of
-9-
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
Adam or Tina over Jo “unless it is shown that the lawful par-
ent is unfit or has forfeited his or her superior right or the
preference is negated by a demonstration that the best interests
of the child lie elsewhere.” (Emphasis in original.) The court
reasoned that Adam had generally forfeited his superior right
in favor of Jo.
The court determined that Tina was now a fit person to care
for Destiny. The court recognized that Tina had attained more
stability in her life. But the court stated that its paramount con-
cern was Destiny’s best interests. The court found that “paren-
tal preference in favor of [Tina] is negated by the overwhelm-
ingly clear and convincing evidence that Destiny’s best interest
is for her to remain with [Jo].” The court described the situa-
tion as “one of those rare instances” when the best interests of
a child defeat the parent’s preference. The court placed legal
and physical custody with Jo, set parenting time for Adam and
Tina, and determined child support.
Tina timely appealed, and we moved the case to our docket. 1
As authorized by court rule, we submitted the case without oral
argument. 2
ASSIGNMENT OF ERROR
Tina assigns that the court abused its discretion by awarding
custody to Jo rather than to Tina.
STANDARD OF REVIEW
Child custody determinations are matters initially entrusted
to the discretion of the trial court, and although reviewed de
novo on the record, the trial court’s determination will nor-
mally be affirmed absent an abuse of discretion. 3
ANALYSIS
[1-4] Parents have a fundamental right to make decisions
concerning the care, custody, and control of their children
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
2
See Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2017).
3
Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81 (2019).
- 10 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
that is constitutionally protected. 4 Establishment and continu-
ance of the parent-child relationship is the most fundamental
right a child possesses to be equated in importance with per-
sonal liberty and the most basic constitutional rights. 5 In rec-
ognition of this important relationship, the parental preference
principle establishes a rebuttable presumption that the best
interests of the child are served by placing custody of a minor
child with his or her parent. 6 Under the parental preference
principle, absent proof that a parent is unfit or has forfeited the
right to custody, a parent may not be deprived of the custody
of a minor child. 7
[5] While the best interests of the child remain the lodestar
of child custody disputes, a parent’s superior right to custody
must be given its due regard, and absent its negation, a parent
retains the right to custody over his or her child. 8 In Windham
v. Griffin, 9 we touched on the relationship between the paren-
tal preference principle and the best interests standard. We
stated, “While preference must be given to a biological or
adoptive parent’s superior right to custody where the parent
is not unfit and has not forfeited his or her parental rights,
a court also considers the child’s best interests in making its
custody determination.” 10 Significantly, we characterized cases
where best interests of the child defeated parental preference as
being “exceptional.” 11
[6,7] Turning to the instant case, we begin with consider-
ation of Tina’s fitness as a parent. The district court found
4
See Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000).
5
Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992).
6
In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 737 (2019).
7
Id.
8
In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004).
9
Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016).
10
Id. at 290, 887 N.W.2d at 718.
11
Id.
- 11 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
that she was a fit parent, and Jo does not challenge that finding.
Parental unfitness means a personal deficiency or incapacity
that has prevented, or will probably prevent, performance of
a reasonable parental obligation in child rearing and that has
caused, or probably will result in, detriment to a child’s well-
being. 12 Evidence of parental unfitness should be focused upon
a parent’s ability to care for a child, and not any other moral
failings a parent may have. 13 Evidence of a parent’s past fail-
ings is pertinent only insofar as it suggests present or future
faults. 14 The evidence showed that at the time of trial, Tina had
a residence and employment, was not using or selling drugs,
and was actively involved in Destiny’s life. Upon our de novo
review, we agree with the court that Tina “is now a fit person
to care for Destiny.”
[8-10] Next, we consider forfeiture. The district court did
not explicitly make a finding as to whether Tina forfeited her
superior right to custody, but implicit in its decision is that
she did not. Parental rights may be forfeited by substantial,
continuous, and repeated neglect of a child and a failure to
discharge the duties of parental care and protection. 15 Clear
and convincing evidence of such neglect must be shown in
order to overcome the parent’s superior right. 16 And we have
stated that allowing a third party to take custody, even for a
significant period of time, is not the equivalent to forfeiting
parental preference. 17 Under our jurisprudence, we agree that
the evidence does not establish forfeiture by Tina of her paren-
tal preference.
12
In re Guardianship of K.R., supra note 6.
13
See In re Interest of Lakota Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 174
(2011).
14
Id.
15
Windham v. Griffin, supra note 9.
16
See Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (2008).
17
See Windham v. Griffin, supra note 9.
- 12 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
[11-13] It is important to differentiate Jo’s status from Tina’s
status as a biological parent. It is undisputed that Jo stood in
loco parentis to Destiny. In loco parentis is a common-law doc-
trine that gives standing to a nonparent to exercise the rights of
a natural parent when the evidence shows that the nonparent’s
exercise of such rights is in the child’s best interests. 18 In order
to stand in loco parentis, one must assume all obligations inci-
dent to the parental relationship. 19 But in loco parentis status
is not equivalent to status as a parent. 20 Such status does not
entitle a person to all the same rights that a legal parent would
enjoy. 21 In loco parentis status does not, by itself, eclipse the
superior nature of the parental preference accorded to biologi-
cal or adoptive parentage. 22 We recently noted that Windham
rejected an invitation to view the parent and nonparent as being
on equal footing and to determine custody by reference to best
interests alone. 23 Thus, Tina retains a superior right to custody
of her child as compared to Jo.
Here, the district court found that the parental preference
was negated by evidence that it was in Destiny’s best inter-
ests to remain with Jo. In so finding, that court emphasized
our language in Windham that the parental preference could
be “negated by a demonstration that the best interests of the
child lie elsewhere.” 24 But in Windham, we did not articulate
a standard for when the best interests of a child lie elsewhere.
Instead, we stated that “[a]lthough we are aware of instances
where courts have determined that the best interests of the
18
Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).
19
Id.
20
Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017).
21
See id.
22
Jennifer T. v. Lindsay P., supra note 18.
23
See In re Guardianship of K.R., supra note 6.
24
Windham v. Griffin, supra note 9, 295 Neb. at 288, 887 N.W.2d at 717.
- 13 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
child defeated the lawful parent’s preference, we view these
cases as exceptional.” 25
[14] Although Windham did not articulate a standard for
the exceptional case, we cited a New Jersey case 26 therein
that did so. In Watkins v. Nelson, 27 the New Jersey Supreme
Court declared that the exceptional circumstances standard
“always requires proof of serious physical or psychological
harm or a substantial likelihood of such harm.” The Watkins
court explained that the standard was “designed to reduce or
minimize judicial opportunity to engage in social engineering
in custody cases involving third parties.” 28 We agree with this
articulation. We now refine our articulation in Windham to
clarify that in order for exceptional circumstances to negate
the parental preference principle, there must be proof of seri-
ous physical or psychological harm to the child or a substantial
likelihood of such harm.
The district court relied on language in Windham, but it did
not have the benefit of this refined standard. Thus, it is unsur-
prising that the court’s order did not speak in terms of serious
physical or psychological harm or a substantial likelihood of
such harm. The court stated that it agreed with Hansen’s con-
clusions that “it would be detrimental to move Destiny from
Gretna and [Jo]” and that “it would be a serious undoing and
one that Destiny might not be able to handle.” But we can-
not determine whether the court abused its discretion when it
applied an incomplete and unrefined standard. 29
Accordingly, we reverse, and remand for reconsideration
under the elucidated standard for exceptional circumstances.
25
Id. at 290, 887 N.W.2d at 718.
26
Watkins v. Nelson, 163 N.J. 235, 748 A.2d 558 (2000).
27
Id. at 248, 748 A.2d at 565.
28
Id. at 252, 748 A.2d at 567.
29
See, Eric H. v. Ashley H., supra note 3; State v. McGuire, 301 Neb. 895,
921 N.W.2d 77 (2018).
- 14 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
We leave to the district court’s discretion whether to allow for
the expansion of the existing record.
CONCLUSION
When a fit parent has not forfeited his or her superior right
to custody, the best interests of a child will negate the paren-
tal preference principle only in an exceptional case. We now
clarify that an exceptional case requires proof of serious physi-
cal or psychological harm or a substantial likelihood of such
harm. Because the district court did not have the benefit of this
articulation, we reverse, and remand for further proceedings
consistent with this opinion.
Reversed and remanded for
further proceedings.
Freudenberg, J., concurring.
The district court based its placement decision upon a find-
ing that this was one of those rare instances where a minor
child’s best interests weigh so heavily in favor of placement
with a nonparent standing in loco parentis that it overcomes
the presumption of the parental preference principle under
Windham v. Griffin. 1 However, as the majority noted, cases
where the best interests of the child defeated parental prefer-
ence are exceptional when the court finds a parent fit and has
not otherwise forfeited such parental preference. In the present
case, the district court found the mother, Tina K., to be a fit
parent. I disagree with the district court’s parental fitness find-
ing. However, it was not challenged on appeal.
I believe there was sufficient evidence based on a de novo
review of the record to find Tina was unfit to parent her minor
daughter, Destiny B. Tina’s repeated criminal actions resulted
in her inability to parent, and her lifestyle choices created an
unhealthy and unstable living environment. The record in this
matter sets forth Tina’s significant lack of positive parenting
1
See Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016).
- 15 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
functions as they are defined in Nebraska’s Parenting Act, spe-
cifically, Neb. Rev. Stat. § 43-2922 (Reissue 2016). 2
Destiny’s father, Adam B., testified that Tina was using drugs
both before and after Destiny was born in July 2003. Adam and
Tina separated a few months later, and Adam retained custody.
Other than a few letters and occasional visits, the record does
not show that Tina attempted to support or care for Destiny
until she sought visitation rights in 2008 after completing a
prison sentence imposed due to a drug distribution conviction.
Tina did not obtain custody at that time.
In 2011, Tina again moved to modify custody and was
granted temporary custody of Destiny. However, the complaint
to modify custody was subsequently dismissed for want of
prosecution, which reverted custody back to Adam. Adam tes-
tified that he was unaware the complaint had been dismissed,
so Destiny remained with Tina for a time. Approximately 3
years after taking custody of Destiny, Tina was again convicted
and sentenced to incarceration for a drug distribution offense.
Further, Tina testified that during the period she had custody
of Destiny, she had become addicted to methamphetamines.
The record demonstrates that Tina has only provided direct
care and support for Destiny 3 of the 15 years of Destiny’s
life, and for at least 1 of those years, Tina was addicted to
methamphetamines and engaging in the illegal distribution of
controlled substances.
While Tina was completing her second relevant incarcera-
tion period, Destiny’s father reached out to Jo K. and found
Destiny a stable caretaker. Such placement appears to be the
first time in Destiny’s life that she was in a safe, stable, con-
sistent, and nurturing setting. The record further establishes
that with Jo’s support, Destiny began to flourish and address
some of the psychological issues she had developed during her
earlier childhood. Both Adam and Tina acknowledged that Jo
had been the only person parenting Destiny for the previous
5 years.
2
Neb. Rev. Stat. § 43-2922 (Reissue 2016).
- 16 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
Tina admits that she was not a stable or fit parent until
2016 and claims that she became so prior to the filing of her
motion to modify custody. That raises the question whether
Tina made adequate improvements in her parenting abilities
and personal situation to merit a finding of fitness. The record
clearly shows she has not done so. Tina has chosen to allow
nearly all parenting duties and related financial obligations to
remain with Jo, even when she had the ability to do otherwise.
Tina has not exercised the many opportunities she has had to
become involved in caring for Destiny or fulfilling her parent-
ing functions.
Although Tina testified she could provide insurance for
Destiny through her work, Tina had not made any effort to put
Destiny onto her health insurance plan or to engage Destiny’s
medical or dental providers. Tina also admitted that she has
never contacted Destiny’s school to attend parent-teacher con-
ferences, inquire about grades, or be involved with her extra-
curricular activities.
Tina attended one counseling session with Destiny, and that
one session was enough to raise several concerns for the ther­
apist. Tina demonstrated an unwillingness to be attentive to
Destiny’s feelings and concerns. The therapist testified that
Destiny felt intimidated by Tina to the point that Destiny could
not express to Tina that she does not want to live with her.
During her incarceration and for a short time thereafter, Tina
attempted to address her addiction issues but stopped once she
had met her court-ordered minimum requirements. Tina testi-
fied that she believes she is no longer an addict and that due to
that fact, she has not voluntarily pursued an aftercare plan or
chosen to further address her risk of relapse.
I do not believe that a parent is fit when he or she has shown
a pattern of drug abuse, which leads to dangerous criminal
behavior, and yet refuses to acknowledge the potential of
relapse and take preventative measures. I believe that Tina’s
repeated choices to use and sell dangerous and illegal drugs has
demonstrated a personal deficiency that has and will continue
- 17 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE ON BEHALF OF TINA K. v. ADAM B.
Cite as 307 Neb. 1
to prevent performance of her reasonable parental obligations.
Such conduct has been a detriment to Destiny’s well-being and
will likely continue to be so in the future. 3
I agree with the district court that it would be in Destiny’s
best interests to remain with Jo. However, my position is
based upon the fact that there was sufficient evidence in the
record on which to find that Tina was unfit to parent Destiny.
Unfortunately, this court cannot review what I believe to be
the district court’s mistaken findings of Tina’s parental fitness,
because it was not challenged upon appeal. Therefore, I must
concur in the majority’s conclusion that this matter should be
remanded for further proceedings to determine whether “excep-
tional circumstances” exist as that phrase is now articulated.
Heavican, C.J., joins in this concurrence.
3
See In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 737 (2019).