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01/28/2022 09:06 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.
Cite as 310 Neb. 638
State of Nebraska on behalf of Daphnie F.,
a minor child, appellee, v. Christina C.,
third-party plaintiff, appellant, and
Mary and Tim Soppe, third-party
defendants, appellees.
___ N.W.2d ___
Filed December 23, 2021. No. S-21-043.
1. Modification of Decree: Child Custody: Visitation: Child Support:
Appeal and Error. Modification of a judgment or decree relating to
child custody, visitation, or support is a matter entrusted to the discre-
tion of the trial court, whose order is reviewed de novo on the record,
and will 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. Child Custody: Parent and Child: Presumptions. The parental prefer-
ence principle establishes a rebuttable presumption that a child’s best
interests are served by placing custody of a child with a 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. Parental Rights: Proof. For exceptional circumstances to rebut the
parental preference principle, there must be proof of serious physical or
psychological harm or substantial likelihood of such harm.
7. Modification of Decree: Parent and Child. The parental preference
principle applies when modifying custody rights as between a natural
or adoptive parent and one who stands in loco parentis. When a trial
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.
Cite as 310 Neb. 638
court reaches the issue of modification, whether the in loco parentis
relationship has changed is relevant to determining both whether there
has been a material change in circumstances and whether modification
is in the child’s best interests.
Appeal from the District Court for Washington County:
John E. Samson, Judge. Reversed and remanded for further
proceedings.
Avis R. Andrews for appellant.
Megan E. Shupe, of Reagan, Melton & Delaney, L.L.P., for
appellees Mary and Tim Soppe.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Christina C. appeals the order of the district court for
Washington County that denied her application to modify child
custody of her daughter, Daphnie F. Pursuant to a Colorado
custody order, Daphnie was placed in the “permanent, legal
and physical custody” of her paternal grandparents, Mary and
Tim Soppe. Christina moved to modify on the grounds that
she was a fit biological parent who has a right to custody of
her child superior to that of the child’s paternal grandparents
standing in loco parentis. The district court found that it was
in Daphnie’s best interests to remain with the Soppes, and
Christina appeals. Because the district court’s order was issued
after our opinion in State on behalf of Tina K. v. Adam B., 307
Neb. 1, 948 N.W.2d 182 (2020), and did not follow the frame-
work therein, we reverse, and remand for further proceedings
for reconsideration under the standard in State on behalf of
Tina K., supra.
STATEMENT OF FACTS
Daphnie was born in 2014. Until January 2016, she lived pri-
marily with her mother, Christina, in Colorado. The Colorado
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.
Cite as 310 Neb. 638
Department of Health and Human Services was involved with
the family in 2015, and during two periods, Daphnie was
removed from her parents’ custody and placed in foster care.
In July 2016, the Colorado Department of Health and Human
Services placed Daphnie with her paternal grandparents,
the Soppes, who lived in Washington County, Nebraska.
Subsequently, Christina moved from Colorado to Nebraska.
On January 17, 2017, the “Phillips County Combined Courts”
of Phillips County, Colorado, entered an “Order to Approve
Recommendations and Permanency Plan” (hereinafter the
Colorado Custody Order), which awarded permanent legal and
physical custody of Daphnie to the Soppes.
In 2019, the State of Nebraska successfully sought an
order of child support, requiring both Christina and Daphnie’s
biological father to pay monthly support to Mary, commenc-
ing on January 1, 2020. The father did not appear in these
proceedings.
On February 13, 2020, Christina filed an application in
Washington County District Court to modify child custody.
The Colorado Custody Order was registered, and Christina and
the Soppes stipulated that Nebraska was the home state of the
minor child. On August 27, the Washington County District
Court held an evidentiary hearing on jurisdiction under the
Uniform Child Custody Jurisdiction and Enforcement Act, Neb.
Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016 & Cum. Supp.
2020). The court found that it had jurisdiction over the cus-
tody order under the Uniform Child Custody Jurisdiction and
Enforcement Act and that Nebraska law regarding modification
of a previous custody order was applicable going forward.
Trial was held on October 1, 2020, on Christina’s applica-
tion to modify child custody. Evidence centered on Christina’s
history of substance use. Christina was incarcerated in
Colorado around the time Daphnie was initially removed from
her home in January 2016. Christina testified that she was
“falsely arrested” and put in jail, but ultimately pled guilty to
a charge of assault and was placed on 2 years’ probation. She
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.
Cite as 310 Neb. 638
was released in December 2016 and was placed on criminal
probation in Colorado. Shortly thereafter, Christina moved
to Nebraska to be closer to Daphnie, and her probation was
transferred to Nebraska. In August and September 2018, while
on probation, Christina received two custodial sanctions of jail
sentences for failing to attend a drug test and for failing a drug
test. Christina testified that while on probation, she tested posi-
tive for alcohol and methamphetamine. Christina completed
probation in February 2019.
Christina testified that at the time of trial, she was employed
and staying in a home with her mother in Blair, Nebraska.
She was exercising parenting time about 50 percent of the
time by agreement. She takes medication to treat her bipolar
disorder and post-traumatic stress disorder. She was not par-
ticipating in ongoing drug treatment at the time of trial, but
attended Alcoholics Anonymous, Narcotics Anonymous, or
“Crystal Meth Anonymous” meetings approximately twice
a month.
Christina testified that she continued to drink alcohol “[o]nly
on special occasions” and “one or two with friends every now
and then,” but denied any ongoing concerns about drug or
alcohol use. She denied using any illegal drugs since her posi-
tive test in 2018. Christina’s mother testified that she had seen
Christina drink alcohol and that Christina was not currently
seeing her counselor. Christina’s friend testified that she pre-
viously lived with Christina from January 2019 to June 2020
and that she also observed Christina drinking occasionally, but
never around Daphnie. Christina’s mother testified she could
recall only one time when she had seen Christina drink to
excess in the last year.
The district court’s order emphasized that despite admitting
to failing drug tests in the fall of 2018, Christina had filed a
motion in Colorado regarding the parenting plan, in which she
attached a sworn affidavit that stated: “I believe the modifi-
cation is in the best interests of the child because: After the
Dependency and Neglect case, I was on supervised probation
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.
Cite as 310 Neb. 638
for two years. I have been sober for over a year, and [I] only
had two mishaps over the last three years.” The district court
characterized the sworn affidavit as a misrepresentation of
her sobriety.
The district court also noted “further concerns” about
Christina’s drug use based on her treatment plan from services
she received between November 8, 2018, and February 12,
2019. The treatment and discharge summary plan listed diag-
noses of severe alcohol use disorder, in early remission; severe
“Amphetamine-type Substance Use Disorder,” in early remis-
sion; moderate “Bipolar I disorder, [c]urrent or most recent
episode manic”; post-traumatic stress disorder; mild cannabis
use disorder, in sustained remission; and mild cocaine use
disorder, in sustained remission. The treatment plan recorded
Christina’s “[d]ate of last use” as December 18, 2018.
Mary also testified at trial regarding Christina’s substance
abuse and recovery. Mary testified that she wanted Daphnie to
be reunified with Christina until Mary began noticing changes
in Christina’s behavior in September 2019. Mary testified that
Christina told her, “I haven’t used for a month,” and refused
to take a drug test at that time. Mary confronted Christina at
that time, and Christina told her she would return to treatment
and counseling. The Soppes began to increase Christina’s par-
enting time with Daphnie to a roughly 50-50 schedule in the
summer of 2020 by the parties’ agreement. By August 2020,
Mary noticed that Christina exhibited angry behavior and
that Daphnie was beginning to discuss “adult content” when
she returned from Christina’s home. Mary testified that she
obtained a counselor to assist Daphnie at this time, although
Daphnie had only been in counseling for a few months at
the time of trial. In its order, the district court emphasized
Mary’s testimony stating that with Christina’s addictions “and
what she needs to do to help herself could, in the long run,
affect Daphnie.”
In its order, the district court observed that Christina
had not alleged a material change in circumstances but
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.
Cite as 310 Neb. 638
generally requested custody because she is Daphnie’s biologi-
cal mother. The district court found that the Soppes have an
in loco parentis relationship with Daphnie. The district court
found that the parental preference principle had been overcome
because (1) the Colorado Custody Order placed Daphnie in the
permanent custody of the Soppes “due to [Christina’s] defi-
cient parenting issues,” (2) the Soppes have provided a stable
and nurturing home for Daphnie since 2016, and (3) it was in
Daphnie’s best interests to remain with the Soppes. The district
court found that Christina’s recovery has “not surprisingly,
taken time, and she has had her share of ups and downs.” It
found that although “there has been improvement,” the best
interests of Daphnie are clearly to have her care, custody, and
control remain with the Soppes. The district court awarded
Christina parenting time, conditioned on her sobriety, every
Friday evening through Sunday evening, 2 weeks during the
summer, and 6 hours on each of the major holidays named
in the order. The district court denied Christina’s motion for
new trial.
Christina appeals.
ASSIGNMENT OF ERROR
Christina assigns, summarized and restated, that the dis-
trict court erred when it denied her application to modify
child custody.
STANDARDS OF REVIEW
[1,2] Modification of a judgment or decree relating to child
custody, visitation, or support is a matter entrusted to the dis-
cretion of the trial court, whose order is reviewed de novo on
the record, and will be affirmed absent an abuse of discretion.
Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020). An
abuse of discretion occurs when a trial court bases its deci-
sion upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.
Cite as 310 Neb. 638
ANALYSIS
Christina, the biological mother of Daphnie, claims that the
district court erred when it denied her motion for modification
by which she sought to change custody of Daphnie from the
paternal grandparents serving in loco parentis, to herself. The
district court’s denial was based on its reasoning that despite
Christina’s progress, there had not been a substantial change
in circumstances to warrant a modification. Because the dis-
trict court failed to follow the framework we set in State on
behalf of Tina K. v. Adam B., 307 Neb. 1, 948 N.W.2d 182
(2020), we agree with Christina that reversal is warranted. We
reverse, and remand for further proceedings as more fully set
forth below.
The trial in this case was conducted on October 1, 2020,
and the district court’s order was filed on December 4. State
on behalf of Tina K., supra, was filed on September 4, and it
clarified the framework by which the trial courts are to proceed
where, as here, a natural or adoptive parent seeks to change
custody to herself or himself from parties with custody who
stand in loco parentis of the child. The principles described in
State on behalf of Tina K. were reiterated in Windham v. Kroll,
supra, the latter of which was admittedly filed 1 week after the
order on appeal.
[3-6] In State on behalf of Tina K., supra, in which a bio-
logical parent sought modification of custody of a child who
had been living with a third party standing in loco parentis,
we reiterated the primacy of parental preference. The parental
preference principle establishes a rebuttable presumption that a
child’s best interests are served by placing custody of a child
with a parent. See id. 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. Id. 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 nega-
tion, a parent retains the right to custody over his or her child.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.
Cite as 310 Neb. 638
Id. Courts considering the best interests of the child give pref-
erence to a fit biological or adoptive parent’s superior right to
custody, and this right may be defeated only in “exceptional”
cases for the child’s best interests as we clarified in State on
behalf of Tina K., supra. See Windham v. Griffin, 295 Neb.
279, 887 N.W.2d 710 (2016). In State on behalf of Tina K.,
supra, we explained that for exceptional circumstances to rebut
the parental preference principle, there must be proof of seri-
ous physical or psychological harm or substantial likelihood of
such harm. These principles apply in cases where a parent and
those standing in loco parentis seek custody, as well as cases
seeking to modify child custody, such as the instant case.
[7] With respect to the modification circumstance, in
Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020), we
reiterated that the parental preference principle applies when
modifying custody rights as between a natural or adoptive par-
ent and one who stands in loco parentis. When a trial court
reaches the issue of modification, whether the in loco paren-
tis relationship has changed is relevant to determining both
whether there has been a material change in circumstances and
whether modification is in the child’s best interests. Id.
Although the parties agree that the Soppes stand in loco
parentis, the district court did not begin its analytical path in
the manner prescribed in State on behalf of Tina K. v. Adam
B., 307 Neb. 1, 948 N.W.2d 182 (2020), and Windham v. Kroll,
supra. It did not determine whether Christina was a fit parent
to Daphnie or whether she had forfeited her parental rights.
If Christina was a fit parent who had not forfeited parental
rights, the district court did not determine whether there were
exceptional circumstances, i.e., proof of serious physical or
psychological harm or substantial likelihood of such harm,
which would allow the best interests of Daphnie to negate the
parental preference principle.
In its order, the district court expressed concerns about
Daphnie’s best interests based on its credibility determina-
tions of the parties and found that the parental preference
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.
Cite as 310 Neb. 638
was negated. The district court’s findings and reasoning were
not sufficient under the correct standard set forth in State on
behalf of Tina K., supra, and later reiterated in Windham v.
Kroll, supra. Because the district court did not apply the cor-
rect standard, we determine that for this reason, it abused its
discretion, and accordingly, we reverse, and remand for further
proceedings.
CONCLUSION
The district court did not make findings in the manner pre-
scribed by State on behalf of Tina K., supra. Accordingly, we
reverse, and remand for further proceedings for reconsidera-
tion under the standard in State on behalf of Tina K., supra.
We leave to the district court’s discretion whether to allow for
expansion of the existing record.
Reversed and remanded for
further proceedings.