State on behalf of Waters v. Bentley

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/21/2020 09:05 AM CST
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
State of Nebraska on behalf of Maci Jane Waters,
a minor child, appellee, v. Mark Lawrence
Bentley, appellant, Pamela D. Waters,
appellee, and Debra S. Waters,
intervenor-appellee.
___ N.W.2d ___
Filed January 14, 2020. No. A-19-099.
1. Child Custody: Appeal and Error. 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 normally be affirmed absent an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. ____: ____. A judicial abuse of discretion requires that the reasons or
rulings of the trial court be clearly untenable insofar as they unfairly
deprive a litigant of a substantial right and a just result.
4. Child Custody: Parental Rights. The parental preference doctrine pro-
vides that in the absence of a statutory provision otherwise, in a child
custody controversy between a biological or adoptive parent and one
who is neither a biological nor an adoptive parent of the child involved
in the controversy, a fit biological or adoptive parent has a superior right
to custody of the child.
5. ____: ____. The right of a parent to the custody of his or her minor
child is not lightly to be set aside in favor of more distant relatives or
unrelated parties, and the courts may not deprive a parent of such cus-
tody unless he or she is shown to be unfit or to have forfeited his or her
superior right to such custody.
6. ____: ____. The parental superior right to child custody protects not only
the parent’s right to companionship, care, custody, and management of
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
his or her child, but also protects the child’s reciprocal right to be raised
and nurtured by a biological or adoptive parent.
7. 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.
8. Child Custody: Parental Rights. The parental preference doctrine,
by definition, is a preference, and it will be applied to a child custody
determination unless it is shown that the lawful parent is unfit or has
forfeited his or her superior right or the preference is negated by a dem-
onstration that the best interests of the child lie elsewhere.
9. ____: ____. Unlike biological and adoptive parenthood, the status of in
loco parentis is temporary, flexible, and capable of being both suspended
and reinstated. In loco parentis status alone does not eclipse the superior
nature of the parental preference doctrine in custody disputes.
10. 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.
11. 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.
12. ____: ____. The courts may not properly deprive a parent of the custody
of a minor child unless it is affirmatively shown that such parent is
unfit to perform the duties imposed by the relationship or has forfeited
that right.
13. 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.
14. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Adams County: Stephen
R. Illingworth, Judge. Reversed and remanded with
directions.
Shane M. Cochran, of Snyder, Hilliard & Cochran, L.L.O.,
for appellant.
Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellee.
Moore, Chief Judge, and Bishop and Arterburn, Judges.
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
Bishop, Judge.
INTRODUCTION
Mark Lawrence Bentley is the biological father of Maci
Jane Waters, a minor child, and he appeals from an order of
the Adams County District Court granting sole legal and phys-
ical custody of Maci to Maci’s maternal grandmother, Debra
S. Waters, subject to parenting time for Mark. Mark challenges
the district court’s determination that a parental preference
was inapplicable to him and that the custody award was in
Maci’s best interests. We conclude the district court abused
its discretion when it did not recognize Mark’s superior right
to custody of Maci under the parental preference doctrine. We
reverse the order of the district court and remand the cause
with directions.
BACKGROUND
Pamela D. Waters and Mark engaged in sexual intercourse at
least one time in the summer of 2010. Mark said he first met
Pamela in June and saw her three times that month. They had
one telephone conversation thereafter, which Mark indicated
took place in October, relating to Pamela’s discovery that she
was pregnant. The content of the exchange between Pamela and
Mark on that call is in dispute and is discussed further in our
analysis. According to Mark, he was in the Army at that time
and was deployed to Iraq, leaving Nebraska that November;
he was gone for about 1 year. The record reflects that after the
October telephone call, Pamela and Mark did not speak to each
other again until after this action began.
Pamela gave birth to Maci in March 2011. According to
Pamela and Debra, who is Pamela’s adoptive mother, Maci
lived with Pamela from birth until Maci was 3 years old.
Debra said she babysat Maci often, starting from when Maci
was 3 months old. Pamela decided to allow Maci to live
with Debra full time sometime in 2014, due to issues with
Pamela’s health (i.e., seizures) and her living environment at
that time. Pamela admittedly had a history of marijuana use
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
and diagnoses of “ADD [and] ADHD,” “bonding attachment
disorder,” and “grand mal seizures”; Debra said Pamela also
had “fetal alcohol effects” that “presented with some mild
retardation.” Debra and Pamela claimed that Debra received
a power of attorney over Maci in 2014, but Pamela indicated
that it expired in December 2016. Debra stated that Maci
remained in her care after being placed with her in 2014,
except for a few weeks in 2016 when Maci stayed with
Pamela. In 2015, Debra twice took Maci to a licensed psychol-
ogist with an emphasis in pediatrics, Dr. Jody Lieske. Debra
took Maci to Dr. Lieske because of an allegation against an
unknown male related to a time when Maci was in Pamela’s
care. Also, Debra had concerns of how “clingy” Maci had
been to her and the “trust issues” she thought Maci exhibited.
Debra wanted to make sure Maci was adjusting well to her
“situation.” Sometime that year, Pamela gave birth to another
child, who was 3 years old at the time of trial; Pamela said she
had joint custody of that child with the child’s father, but she
ended her relationship with him 2 years before her trial testi-
mony in this case. Pamela said Maci had known the father of
Pamela’s younger child “since [Maci] was born.” Pamela tried
to be involved in Maci’s life as much as possible since Maci
went to live with Debra. Pamela said her visits with Maci
were supervised.
At the time of trial, Debra was 64 years old, was self-
employed, was widowed, and lived in Hastings, Nebraska, with
her mother and Maci, who was then 7 years old. She had been
a foster parent to seven children, two of whom had “special
needs” and she adopted (including Pamela). Debra also had
two sons who had children of their own. Pamela, who was 33
years old at the time of trial, had lived in Harvard, Nebraska,
for about 11⁄2 years and had not lived at Debra’s house for
12 years. Debra’s other adopted child lived in Grand Island,
Nebraska, with an “extended family host” and stayed with
Debra every other weekend.
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
Mark, who was 31 years old at the time of trial, married
Margarita Bentley in October 2014. They lived in Miller,
Nebraska, on a family farm with Margarita’s 8-year-old child
from a prior dating relationship. Margarita had custody of her
child subject to the parenting time of her child’s father, which
was every other weekend during the school year. Testimony
from Margarita and her child’s father indicated that Margarita
and Mark have a positive relationship with her child’s father
and his wife, and vice versa. Margarita believed that Mark
was “very good” with her child, having come into her child’s
life when she was 2 years old, and that Mark treated her child
like she was his own child. In the past, Mark worked for
his father on the farm, but as of June 2018, he worked for a
power management corporation. Margarita worked at a salon in
Kearney, Nebraska.
The record reflects that Pamela had to identify fathers for
her children to fill out an application for what her trial counsel
referred to only as “ADC.” On December 29, 2016, the State
filed a complaint against Pamela and Mark to establish sup-
port on Maci’s behalf, alleging that Mark was Maci’s biologi-
cal father (genetic testing showed “probability of paternity of
ninety-nine percent or more”). The State sought determination
of Mark as Maci’s father and an order that Pamela and Mark
had a duty to pay support for Maci and that Pamela and/or
Mark had to provide health insurance or pay cash medical sup-
port for Maci. Mark filed a voluntary appearance that same
day. About a month later, Mark filed a motion in which he
alleged that it was in Maci’s best interests that he be awarded
temporary custody of her, subject to Pamela’s and Debra’s
“visitation” as appropriate. That same day, Mark filed an
answer, admitting to being Maci’s biological father. He asked
for a determination of the same and asked for, among other
things, child support. He also submitted a cross-complaint for
full custody of Maci and the same or related relief also sought
under his answer.
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
In February 2017, a child support referee filed a report
with recommendations regarding the State’s complaint. As rel-
evant, the referee recommended an order that Mark is Maci’s
father and was to pay $595 monthly in child support and $98
monthly in cash medical support and that Pamela was to pay
$50 monthly in child support, with the obligations to begin on
March 1. On March 16, the district court adopted as its order
the referee’s report and recommendations.
After her two sessions in 2015, Maci regularly attended
counseling with Dr. Lieske from 2016 through 2018. Records
from her sessions from 2015 to 2018 were accepted into evi-
dence during trial. Mark, Margarita, and her child first met
Maci on March 23, 2017, at Dr. Lieske’s office in Hastings.
Debra was there too. Although there is a counseling record for
it, Dr. Lieske said it was only a “meet and greet.” At Debra’s
discretion, Mark had monthly visits with Maci in April, May,
and June; Mark and Debra coordinated during each visit to
plan Mark’s next visit.
In May 2017, Mark filed a motion for default judgment
against Pamela and for entry of relief sought in his motion
for temporary custody, termination of his child support obli-
gation, and entry of a parenting plan. On June 20, there was
a hearing on the motion for default judgment; Pamela did
not appear. Mark testified about the delay in establishing his
paternity. He said he had submitted to paternity testing as
soon as he received a letter from the State in October 2016.
Maci was residing with Debra, and Pamela’s time with Maci
was “very limited.” Mark believed Debra wanted to “keep”
Maci. The district court was concerned because Debra did not
receive notice of the hearing. The court questioned whether
Maci was ready for “this” given her age and residence with
Debra. The court was “not comfortable” with Mark’s request
for custody, because he “just started this in March” and
because it “could be a very traumatic experience” for a
6-year-old child. The court withheld a custody ruling until
after evidence was presented about whether it was in Maci’s
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
best interests to “take her away from [Debra].” But the court
agreed to enter a temporary parenting plan. On June 22, 2017,
Mark was awarded parenting time with Maci on every other
Saturday from 10 a.m. to 5 p.m., beginning July 1. Mark was
ordered to work with Debra to increase his parenting time
until further court order.
In September 2017, Debra filed a complaint for leave to
intervene in the action. She alleged that she stood in loco
parentis to Maci. She asked for an order granting her the con-
tinued care, custody, and control of Maci or, in the alternative,
that it was in Maci’s best interests to maintain a significant and
beneficial relationship with her. In March 2018, with Mark’s
stipulation, Debra was appointed as the guardian of Maci in
an action in the county court for Adams County; in a separate
filing, the parties stipulated (1) that Debra would be allowed to
be Maci’s guardian as long as she retained custody of Maci in
the action in the district court and (2) that if the district court
changed custody from Debra to Mark, Debra’s guardianship
would terminate upon such order.
In May 2018, Mark filed a motion for 6 weeks of extended
summer parenting time, spread out into 2-week intervals. He
said that he had exercised the parenting time granted to him
under the prior order. He said that in October 2017, the parties
entered mediation and agreed to increase his parenting time
to every other weekend from Friday at 6 p.m. to Sunday at
3 p.m.; he claimed he had exercised that parenting time since
that October. Mark said he had also had extended parenting
time for 1 week over “Christmas time” in 2017. In an order
filed in June 2018, the district court noted that the parties had
stipulated to parenting time to the date of trial and that there-
fore, Mark’s motion was continued until trial. Mark later testi-
fied that preceding trial, he saw Maci for “a week to about nine
days, off and on” over the summer of 2018.
Trial took place on July 11 and 12 and August 24, 2018. On
July 12, the parties stipulated that Mark would have extended
summer parenting time from July 13 through 18 and from
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
July 27 through August 5 with the regular weekend parent-
ing time schedule to commence again on August 17; the court
accepted the stipulation. During trial, each party offered exhib-
its that were received into evidence. Mark’s evidence also
consisted of his own testimony and testimony from Margarita,
her child’s father, two of Mark’s relatives, and Margarita’s
coworker. Debra’s evidence also consisted of her own tes-
timony and testimony from Pamela; Dr. Lieske, who was
qualified as an expert witness in the field of psychology; and
the extended family host for Debra’s other adopted child (not
Pamela). Although Mark felt that his parenting time and rela-
tionship with Maci had greatly improved over the last year,
Dr. Lieske opined that Maci did not have a bonded relation-
ship with Mark but did have a bonded relationship with Debra.
Dr. Lieske said that Mark had a “very nice interaction” with
Maci but that Maci was a “timid child” and work needed to
be done before there could be an established bonded relation-
ship between Maci and Mark. Dr. Lieske did not have a set
timeframe for when Maci “would be able to just be with”
Mark. Dr. Lieske recommended the continued development of
a relationship between Maci and Mark. After the parties each
presented evidence, the district court ordered the parties to
submit briefs and took the case under advisement.
The district court issued its order on January 8, 2019. The
court indicated that Pamela was not considered suitable for
custody “due to her mental and physical problems.” The court
perceived the threshold question before it was whether cus-
tody could go to Debra rather than to a “fit parent,” Mark.
Noting the parental preference doctrine, the court found that
Debra stood in loco parentis to Maci. The court found that
Mark, “although having knowledge of Pamela’s pregnancy,”
“ignored” the possibility of a child until the State pursued him
to establish paternity in late December 2016. The court con-
cluded that there “should not” be a parental preference to Mark
because of his “long absence” from Maci’s life.
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
The district court proceeded to conduct a best interests
analysis. It determined that Mark had not “forfeited” his
parental rights by “total indifference,” but, rather, he had
“ignor[ed]” his parental responsibilities after being put on
notice of the pregnancy in 2010. His relationship with Maci
had been “relatively short term” so far. Mark was “a solid
citizen and a fit parent.” But the court said its “problem”
with giving Mark custody “at this time” was that Maci had
yet to bond with Mark. The court found that Debra had been
and continued to be the constant in Maci’s life and that Dr.
Lieske’s testimony was “compelling” regarding where Maci
should be placed. The court noted Debra’s age and some of her
“health issues” (e.g., she walked with assistance of a cane) but
found that they did not lessen her ability to parent Maci. The
district court acknowledged Debra’s testimony regarding why
she believed it was in Maci’s best interests to be in her cus-
tody, why her relationship with Maci was “more like a parent/
child relationship,” and the “reluctance” Maci has had about
going on some of the visits with Mark. In conclusion, “under
a ‘best interests’ analysis,” legal and physical custody of Maci
was awarded to Debra “as she has stood In Loco Parentis to
[Maci], having raised her since age three . . . . Maci is bonded
with Debra and so far not to Mark.” The court believed it
was in Maci’s best interests that Mark receive parenting time
to develop a bonded relationship with Maci. The court also
noted that “circumstances could change over the years due to
Debra’s age and health issues.”
Mark was given parenting time every other weekend from
Friday at 4:30 p.m. to Sunday at 4:30 p.m. and on alternating
holidays, extended parenting time during yearly fall and spring
breaks, and parenting time for 8 weeks during the summer. He
was also granted reasonable telephone contact with Maci dur-
ing the week. Pamela was not given set parenting time, and her
time was to be as agreed upon by the parties and only occur
under adult supervision.
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
The district court further found that there was no evidence
that “Debra’s religion [was] detrimental to Maci.” Debra was
permitted to raise Maci in the religion Debra chose. Mark was
not to “criticize or sabotage” Maci’s upbringing, including her
religion, and could not attempt to indoctrinate Maci into his
religion. Mark was allowed to take Maci to church when she
was in his care. Mark was ordered to continue paying child
support as previously ordered. He was to provide medical
insurance for Maci. Both parties were held responsible for their
own attorney fees.
Mark appeals.
ASSIGNMENTS OF ERROR
Mark claims, restated, that the district court erred by deter-
mining the parental preference doctrine did not apply and it
was in Maci’s best interests to remain in Debra’s care.
STANDARD OF REVIEW
[1] 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 normally be affirmed absent an abuse of discretion. Schrag
v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
[2,3] An abuse of discretion occurs when a trial court bases
its decision upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason, and
evidence. Id. A judicial abuse of discretion requires that the
reasons or rulings of the trial court be clearly untenable insofar
as they unfairly deprive a litigant of a substantial right and a
just result. Id.
ANALYSIS
Parental Preference Doctrine
[4,5] The parental preference doctrine provides that in the
absence of a statutory provision otherwise, in a child custody
controversy between a biological or adoptive parent and one
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
who is neither a biological nor an adoptive parent of the
child involved in the controversy, a fit biological or adoptive
parent has a superior right to custody of the child. Windham
v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016). The right
of a parent to the custody of his or her minor child is not
lightly to be set aside in favor of more distant relatives or
unrelated parties, and the courts may not deprive a parent of
such custody unless he or she is shown to be unfit or to have
forfeited his or her superior right to such custody. Id. The
Nebraska Supreme Court has acknowledged the importance
of the best interests of the child in resolving a child custody
dispute, but 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. Id. Although there
may be instances where courts have determined that the best
interests of the child defeated the lawful parent’s preference,
those cases are viewed as being “exceptional.” Id. at 290, 887
N.W.2d at 718 (providing example from Gorman v. Gorman,
400 So. 2d 75 (Fla. App. 1981), where trial court found bio-
logical father and ex-stepmother to be fit, but awarded cus-
tody of child to ex-stepmother because child felt he never had
father because father was often away from home, frequently
intoxicated, and physically abused and blamed child for death
of natural mother during childbirth).
[6-8] The parental superior right to child custody protects
not only the parent’s right to companionship, care, custody,
and management of his or her child, but also protects the
child’s reciprocal right to be raised and nurtured by a bio-
logical or adoptive parent. Uhing v. Uhing, 241 Neb. 368,
488 N.W.2d 366 (1992). 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. Id. The paren-
tal preference doctrine, by definition, is a preference, and it
will be applied to a child custody determination unless it is
shown that the lawful parent is unfit or has forfeited his or her
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Nebraska Court of Appeals Advance Sheets
27 Nebraska Appellate Reports
STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
superior right or the preference is negated by a demonstration
that the best interests of the child lie elsewhere. Windham v.
Griffin, supra.
The Supreme Court recently provided further insight on the
interaction of the best interests of the child standard and the
parental preference principle. See In re Guardianship of K.R.,
304 Neb. 1, 932 N.W.2d 737 (2019). The Supreme Court cau-
tioned that Windham v. Griffin, supra, “cannot be read to stand
for the proposition that the parental preference principle will
be rebutted in every case in which the nonparent might prevail
in a pure best interests comparison.” In re Guardianship of
K.R., 304 Neb. at 19, 932 N.W.2d at 749.
[9] Also, unlike biological and adoptive parenthood, the
status of in loco parentis is temporary, flexible, and capable
of being both suspended and reinstated; in loco parentis status
alone does not eclipse the superior nature of the parental pref-
erence doctrine in custody disputes. See Windham v. Griffin,
295 Neb. 279, 887 N.W.2d 710 (2016). See, also, Farnsworth
v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (2008) (district
court abused its discretion by focusing solely on best interests
of children when granting custody to grandparents; district
court should have also considered superior interests of biologi-
cal father, and facts that indicated children might have more
stability if they remained with grandparents did not overcome
father’s superior rights).
[10-13] 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. Windham
v. Griffin, supra. However, allowing a third party to take
custody, even for a significant period of time, is not the
equivalent to forfeiting parental preference. Id. The courts
may not properly deprive a parent of the custody of a minor
child unless it is affirmatively shown that such parent is unfit
to perform the duties imposed by the relationship or has for-
feited that right. Farnsworth v. Farnsworth, supra. Clear and
convincing evidence of substantial, continuous, and repeated
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STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
neglect of a child must be shown in order to overcome the
parent’s superior right. Id.
Did Mark Forfeit His Superior
Right to Maci’s Custody?
Mark argues that the parental preference doctrine should
have applied to him because he is fit to parent and he did
not forfeit his superior right to custody of Maci. He contends
his “rights to custody of [Maci] should trump any claims for
custody” over Debra. Brief for appellant at 22. The district
court determined that Debra “has stood In Loco Parentis
to Maci having raised her since she was three years old.”
Mark does not assign error to that particular finding, and he
acknowledges that “Maci has been with Debra for the last 3
to 4 years and has a bond with Debra.” Brief for appellant at
32. However, it is Mark’s position that the evidence did not
support that he was unfit, nor that he had forfeited his parental
rights; accordingly, he claims that he “deserves to have cus-
tody of [Maci] pursuant to the parental preference doctrine.”
Id. at 30.
Mark cites to two cases in which this court concluded there
was no forfeiture of parental rights, namely, In re Interest
of Eric O. & Shane O., 9 Neb. Ct. App. 676, 617 N.W.2d 824
(2000), disapproved on other grounds, In re Interest of Lakota
Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 174 (2011), and
Mair v. James, No. A-00-016, 2001 WL 537062 (Neb. App.
May 22, 2001) (not designated for permanent publication).
Mark contends that if those cases “do not rise to the level of
forfeiture, then [this case] should not either.” Brief for appel-
lant at 27. See, In re Interest of Eric O. & Shane O., supra
(no forfeiture although minor children resided with third
party for nearly 6 years, several of which were with natural
father’s consent as evidenced by stipulation to third party’s
guardianship over children); Mair v. James, supra (no for-
feiture although minor child lived with third party for about
7 years, father visited child only once after his paternity was
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STATE ON BEHALF OF WATERS V. BENTLEY
Cite as 27 Neb. Ct. App. 945
established and in 2 years prior to seeking custody, and father
became more than $4,000 delinquent in child support; this
court did not find as meaningful father’s lack of acknowledg-
ment of paternity prior to entry of paternity decree because
even mother was unsure who had fathered child).
Mark also points us to several cases of recognized forfeit­
ure. See, Nye v. Nye, 213 Neb. 364, 329 N.W.2d 346 (1983)
(natural father’s second application for custody denied where,
among other things, he removed children without authoriza-
tion from Nebraska on one occasion and one licensed psychia-
trist was of opinion that one child could benefit from termina-
tion of visits with father); Gray v. Hartman, 181 Neb. 590,
150 N.W.2d 120 (1967) (father separated from mother and
moved out of mother’s home at least 9 months before divorce
petition filed and at least 6 months before child’s birth; father
claimed to have attempted to exercise parenting time granted
to him under divorce decree for first 5 years of child’s life
but then went about 10 years without seeing child, sending
cards or gifts, or asking about child’s well-being); Williams
v. Williams, 161 Neb. 686, 74 N.W.2d 543 (1956) (father not
unfit but forfeited his preferential right to the child’s custody
given his indifference for 8 years and his willingness to allow
others to assume parental obligations in his stead); State on
behalf of Combs v. O’Neal, 11 Neb. Ct. App. 890, 662 N.W.2d
231 (2003) (grandmother lived with child for 13 years and
raised child for 111⁄2 of those years; natural father said he
maintained relationship with child since child’s birth, was
found to have failed to pay child support for first 9 years of
child’s life although he knew he fathered the child, and was
content with having grandmother raise child until paternity
action initiated).
We agree with Mark that the present case is not analogous
to those cited cases in which forfeiture overcame a parental
preference, nor are the circumstances present here similar
to those cases in which there were findings of no forfeiture
despite arguably worse facts. However, Debra contends that
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the “district court correctly concluded that Mark forfeited his
superior right under the parental preference doctrine because
he was absent from [Maci’s] life for the first six years of her
life.” Brief for appellee at 8.
It is true that the district court was troubled by the fact that
Mark had knowledge that Pamela was pregnant, but “ignored
the situation and possibility of a child” until the State filed
an action for paternity. Relying on Jeffrey B. v. Amy L., 283
Neb. 940, 814 N.W.2d 737 (2012), and Williams v. Williams,
supra, the district court concluded that “custody of Maci can
be placed with Debra” and that “there should not be a parental
preference to [Mark] for custody over [Debra] because of his
long absence from Maci’s life.” The district court explained
that Mark had not forfeited his parental rights by total indiffer-
ence, but that he did ignore his parental responsibilities after
being put on notice of the pregnancy in 2010. And although
the district court determined that Mark’s absence for 6 years
“from the life of [Maci] should result in him not receiving
custody,” the court also determined that Mark had not “totally
forfeited his parental rights to where he should not have con-
tact with Maci.” Since being contacted by the State, the court
acknowledged that Mark “has taken responsibility” and that
Mark is “a solid citizen and a fit parent.” The court expressed
concern, however, that “Maci has yet to bond with Mark”
and that the “constant” in Maci’s life “has and continues to
be [Debra].”
Keeping the parental preference legal principles set forth
above in mind, we first note that Mark’s fitness as a parent is
not at issue. “Debra does not dispute Mark’s parental fitness.”
Brief for appellee at 9. Rather, the focus here is the district
court’s conclusion that although Mark had not forfeited his
parental rights in entirety and maintained a right to have par-
enting time with Maci, he had forfeited his superior right to
have custody of her. The district court relied upon Jeffrey B.
v. Amy L., supra, and Williams v. Williams, 161 Neb. 686, 74
N.W.2d 543 (1956), in reaching its decision to place custody of
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Maci with Debra. We therefore consider the circumstances of
those cases as applied here.
Jeffrey B. v. Amy L., supra, involved a biological father’s
attempt in 2010 to intervene and vacate a paternity decree
entered in 2001 which had legally determined someone else
to be the father of the child at issue. The biological father
had engaged in a brief sexual relationship with the biologi-
cal mother between March and June 1999 while he was tem-
porarily working in Omaha, Nebraska; the biological father
subsequently returned to St. Louis, Missouri. After the mother
learned she was pregnant, she went to St. Louis to meet with
the biological father, but he was out of town. The mother did
meet with two of his coworkers, and one of them told the
biological father that the mother might be pregnant and that
she might be seeing someone else. The biological father never
considered the possibility that the child could be his. After the
child was born, the mother and child lived with a man who
the mother and the man believed at the time was the child’s
biological father. When that relationship ended, a petition to
establish paternity was filed by the putative father; a paternity
decree legally finding him to be the father was entered in 2001.
Although the mother was initially awarded custody of the
child, the legally determined father was subsequently awarded
custody of the child in 2006. The mother filed a modification
action in 2009, and at that point, she contacted the biological
father, who agreed to a paternity test. Genetic testing con-
firmed the likelihood that he was the father, and in May 2010,
he moved to intervene in the mother’s pending proceeding to
modify the paternity decree. The district court permitted the
intervention and set aside the paternity decree; the Supreme
Court reversed that decision. See id.
While we acknowledge that these facts bear some similar-
ity to the present case in terms of a brief sexual relationship
followed by the father’s receipt of some notification about the
mother’s pregnancy, there is, however, a key distinguishing
legal factor. Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d
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737 (2012), was not a case decided on the parental prefer-
ence doctrine or best interests. Rather, it involved a paternity
decree which had been entered almost a decade earlier and had
legally determined another person to be the child’s father; the
legal issue was whether intervention by the biological father
and vacation of a prior paternity decree was appropriate under
the circumstances presented in that case. The Supreme Court
determined that the biological father could not intervene as a
matter of right under Neb. Rev. Stat. § 25-328 (Reissue 2008),
because intervention as a matter of right is allowed only
before trial begins, not after judgment has been obtained, and
in that case, the paternity judgment had been entered almost
a decade earlier. See Jeffrey B. v. Amy L., supra. Further, the
Supreme Court found that there was no statutory basis under
Neb. Rev. Stat. § 25-2001(4) (Reissue 2008) to allow the
biological father to intervene and seek to have the paternity
decree vacated because the biological father did not exercise
reasonable diligence to discover the mother was pregnant with
his child, and he could not show that the paternity decree was
obtained by mistake, neglect, or irregularity, nor could he
show that there was unavoidable casualty or misfortune which
prevented him from intervening before the paternity decree
was entered. See Jeffrey B. v. Amy L., supra. The Supreme
Court also concluded that there was no equitable basis to
allow the biological father to intervene in a child custody
modification dispute involving the biological mother and the
legally determined father who had previously been awarded
custody of the child and with whom the child had been living
for approximately 7 years. In the matter before this court, no
paternity action and decree determining someone else to be
Maci’s father preceded the present action. No other person
was identified as the child’s father, much less legally deter-
mined to be the child’s father as had occurred in Jeffrey B. v.
Amy L., supra. In fact, in this case, Pamela testified that she
was asked who Maci’s father was when she had Maci at the
hospital and that she had responded: “I didn’t know at the
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moment.” Maci’s birth certificate shows that Pamela did not
list anyone as Maci’s father, and the only evidence regarding
Mark’s knowledge of Pamela’s pregnancy is the October 2010
telephone call, shortly after which Mark was deployed to Iraq
for about a year.
In Williams v. Williams, 161 Neb. 686, 74 N.W.2d 543
(1956), the biological father sought custody of his 8-year-old
child via a habeas corpus proceeding. The child’s mother had
died shortly after the child’s birth and the child was placed
with his paternal grandparents. The fitness of the father was
not at issue. Also, the father had visited the child from time
to time and made some contributions to support the child.
The question considered by the Supreme Court was whether
the father forfeited his preferential right to the child’s cus-
tody given his indifference for 8 years and his willingness to
allow others to assume parental obligations in his stead. The
Supreme Court concluded the father had forfeited his natural
right as a parent “to uproot and destroy the close relationship
between the child and the grandparents which he permitted to
come into existence with his full approval and consent.” Id. at
690, 74 N.W.2d at 545. The court observed, “While it is true
that a parent has a natural right to the custody of his child, the
court is not bound as a matter of law to restore a child to a
parent under any and all circumstances.” Id. Where a “father
abandoned the care of his child to his parents for 8 years
beginning from the day of its birth, with his full approval
and consent, he has forfeited his natural right to the child’s
custody.” Id. at 690-91, 74 N.W.2d at 545. Again, the facts
in the present matter are quite different. Unlike the father
in Williams v. Williams, supra, Mark did not turn over the
responsibility for Maci’s childrearing to Debra; Mark assumed
immediate responsibility when he became aware Maci was
his child.
The district court relied on the cases just discussed, and it
concluded that “there should not be a parental preference to
[Mark] for custody over [Debra] because of his long absence
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from Maci’s life” and that it “must therefore proceed to a best
interests analysis to determine custody.” To conclude as it did,
the district court necessarily was persuaded that the October
2010 telephone conversation between Pamela and Mark was
sufficient to put Mark on notice that Pamela could have been
pregnant with his child and that Mark had an obligation to fol-
low up with Pamela to determine whether she had a baby and,
if so, whether it was Mark’s child. In our de novo review of
the record, we cannot agree that the record affirmatively estab-
lishes that Mark forfeited his superior right to custody based
upon his failure to follow up on the October 2010 telephone
call. The evidence reveals the following:
Pamela and Mark had a brief sexual relationship in June
2010, with no contact until October of that year. According
to Mark, his telephone call with Pamela in October lasted “a
few minutes.” He first said that the subject of the telephone
call was the possibility that Pamela was pregnant. On cross-
examination, Mark agreed that Pamela told him she was preg-
nant. On further questioning by the court, Mark answered that
he could not remember Pamela’s exact wording, but he agreed
that she left him with the impression that she was pregnant.
Although at first Mark could not recall what he said to Pamela,
he later agreed that he asked her if she thought the child was
his. Mark’s counsel asked him if he got a definitive answer
from that; Mark answered that Pamela was “very upset” and
was crying while he was “unable to understand her” and then
she hung up. Mark did not know whether the child was his.
When asked if he knew if Pamela was seeing other people,
Mark responded that his friends in Hastings said “they did see
her with other people just in the social environment at the bar
and such.”
Pamela testified that she had taken three pregnancy tests
which were all positive and that she knew she was pregnant
before she called Mark. She knew Mark as “Bentley” at that
time and indicated she was not sure of his first name back
then. She said that during the telephone call, she told Mark she
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was pregnant; she “pretty much let him know that[,] because
he was the last one [she] was with.” Pamela recalled that Mark
was confused and that at one point he told her he “didn’t want
it.” She said Mark had told her he was being deployed so that
she would not be able to contact him. Pamela said she saw
Mark after that at a bar on a “very, very crowded night” and
made eye contact with him for a “brief second” and then tried
but could not find him. Mark denied or did not recall run-
ning into Pamela at a bar after seeing her in June 2010. Maci
was born in March 2011. Pamela testified that she was asked
who Maci’s father was when she had Maci at the hospital
and that she had responded: “I didn’t know at the moment.”
Maci’s birth certificate shows that Pamela did not list anyone
as Maci’s father. Pamela admitted that she did not identify a
father on Maci’s birth certificate because she did not know
Mark’s first name or thought it was “Ryan” and because she
wanted to be sure that the name was correct and about the
identity of the father.
As stated previously, Mark was deployed to Iraq and left
Nebraska about a month after his telephone call with Pamela
in October 2010. Pamela said she tried contacting Mark one
time after Maci’s birth but never got a response. She did not
know if he still had the same telephone number. Following
the telephone call in October 2010, Pamela and Mark did not
speak to each other again until after this action began. During
trial, Pamela agreed that when she applied at some point for
what her counsel referred to as “ADC,” she identified Mark as
the father of one of her children, knowing that his name was
“Bentley” and that he was in the military. Mark claimed he first
learned he had a child after the State contacted him to submit
to a paternity test in October 2016.
Although the record supports the district court’s finding
that in October 2010 Mark was made aware that Pamela was
pregnant, the record does not show that Mark, or even Pamela,
at that time conclusively knew that Mark was the father of
the child. Even if Mark was “the last one [she] was with,”
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as Pamela testified was her reason for telling Mark she was
pregnant, that would not have necessarily ruled out other
potential fathers. One of the reasons why Pamela did not list
a father on Maci’s birth certificate was because she wanted
to verify Maci’s father’s identity in general, which indicates
her own lack of certainty as to who might be Maci’s father.
While it would have been prudent for Mark to follow up with
Pamela after the one telephone call they had about Pamela’s
pregnancy, the evidence does not affirmatively show that Mark
forfeited his right to custody. See Farnsworth v. Farnsworth,
276 Neb. 653, 756 N.W.2d 522 (2008) (courts may not prop-
erly deprive parent of custody of minor child unless it is
affirmatively shown that such parent is unfit to perform duties
imposed by relationship or has forfeited that right). Even when
considering only Pamela’s testimony, she did not know who
the child’s father was with any degree of certainty even at
the time Maci was born, and she made only one unsuccess-
ful attempt after Maci’s birth in March 2011 to try to contact
Mark, who had been deployed to Iraq for a year commencing
the prior November. Further, the record does not clearly and
convincingly demonstrate that Mark’s absence from the begin-
ning of Maci’s life constituted forfeiture of his parental rights
based upon substantial, continuous, and repeated neglect of the
child. See id. See, also, In re Interest of Lakota Z. & Jacob H.,
282 Neb. 584, 590, 804 N.W.2d 174, 180 (2011) (parental pref-
erence principle applied in guardianship termination action;
individual in opposition to termination of guardianship bears
burden of proving by “clear and convincing” evidence that
biological or adoptive parent either is unfit or has forfeited his
or her right to custody).
The record shows that once Mark was notified about the
possibility that Maci was his child and that a paternity test
confirmed the same, he discharged his duties of parental care
and protection over Maci as he was increasingly permitted.
Mark said he was contacted by the State in October 2016, then
submitted to a “DNA test . . . right away.” The State filed its
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complaint in December. In filings submitted in January 2017,
Mark admitted he was Maci’s biological father and sought
custody of Maci. The court ordered that Mark was Maci’s
biological father on March 16. Mark first met Maci on March
23. With Debra’s permission, he had monthly visits with Maci
in April, May, and June, all prior to the June hearing on his
motion for default judgment after which the district court set
a temporary parenting schedule for Mark. As Mark states in
his brief, his parenting time has been “steadily increasing”
since that time. Brief for appellant at 25. He further states he
never missed a weekend of his parenting time, a claim that the
record does not refute (disregarding one time in the summer
of 2018, when Debra said Mark did not pick up Maci on a
Friday as Mark’s work schedule was “mixed up” so he picked
up Maci the next morning after he got off work—a night shift).
Moreover, the child support payment history reports revealed
that as of the trial, Mark was current on his child support and
cash medical support obligations for Maci. Mark also showed
that he had obtained health insurance since the action began
and had added Maci to be covered by his health insurance in
June 2018.
In sum, Mark is undisputedly a fit parent, and the record
does not affirmatively reflect that he forfeited his superior
right to custody of Maci, nor is there clear and convincing
evidence of substantial, continuous, and repeated neglect of
Maci necessary to overcome his parental superior right. The
district court abused its discretion when it found otherwise
based upon its assessment of Maci’s current best interests.
See Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d
522 (2008) (district court abused its discretion by focusing
solely on best interests of children when granting custody to
grandparents; district court should have also considered supe-
rior interests of biological father, and facts that indicated chil-
dren might have more stability if they remained with grand-
parents did not overcome father’s superior rights). While the
district court’s best interests assessment is understandable
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given Maci’s existing relationship with Debra, the record does
not support that Mark forfeited his superior right to custody,
nor is this an instance where the child’s best interests defeat
Mark’s parental preference. There are no exceptional circum-
stances here which override or rebut Mark’s parental prefer-
ence. See Windham v. Griffin, 295 Neb. 279, 887 N.W.2d
710 (2016) (instances where best interests defeat lawful par-
ent’s preference are viewed as exceptional, such as father’s
frequent intoxication, physical abuse, and blaming child for
death of natural mother during childbirth). The record dem-
onstrates that once Mark became aware of Maci’s existence,
he immediately engaged in parenting; the district court found
him to be “a solid citizen and a fit parent.” Even if the cir-
cumstances present in this case support the fact that Debra
should have custody under a pure best interests comparison,
the parental preference principle has not been rebutted, as
discussed above. See In re Guardianship of K.R., 304 Neb. 1,
932 N.W.2d 737 (2019) (parental preference principle will not
be rebutted in every case in which nonparent might prevail in
pure best interests comparison).
Accordingly, we reverse the district court’s January 8,
2019, order and remand the cause with the following direc-
tions: Legal and physical custody should be awarded to Mark.
Having legal custody means that Mark will have the “authority
and responsibility for making fundamental decisions regarding
the child’s welfare, including choices regarding education and
health.” Neb. Rev. Stat. § 43-2922(13) (Reissue 2016). See,
also, State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933,
946, 932 N.W.2d 692, 703 (2019) (legal custody gave father
“final say on fundamental decisions regarding [child’s] wel-
fare, such as where he attends school, his religious upbringing,
and how his health and medical needs are met”). Regarding
physical custody, Mark will have the “authority and respon-
sibility regarding [Maci’s] place of residence and the exertion
of continuous parenting time for significant periods of time.”
§ 43-2922(20). Regarding physical custody, we are mindful of
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the district court’s concerns that “Maci is bonded with Debra
and so far not to Mark” and that Maci and Mark “need to work
on the relationship so Maci knows Mark is there for her.” We
also acknowledge the significance of the bond between Maci
and Debra, and due consideration must be given to main-
taining that relationship. Therefore, on remand, the district
court is to develop a parenting plan and visitation schedule
that will gradually transition Maci’s daily physical custody
and care from primarily being with Debra to primarily being
with Mark, but preserving appropriate grandparent visitation
between Maci and Debra. The district court may, in its discre-
tion, determine whether to hold further evidentiary hearings to
obtain input from the parties or other evidence as to a reason-
able transitional schedule for Maci.
[14] In light of our decision above, we need not further
address Mark’s other assigned error concerning the district
court’s best interests analysis. See Weatherly v. Cochran, 301
Neb. 426, 918 N.W.2d 868 (2018) (appellate court is not obli-
gated to engage in analysis that is not necessary to adjudicate
case and controversy before it).
CONCLUSION
For the reasons set forth above, we reverse the January 8,
2019, order of the district court and remand the cause with
directions.
Reversed and remanded with directions.