State ex rel. Waters v. Bentley

• Decision Date: 14 January 2020
• Docket Number: No. A-19-099.,A-19-099.
• Citation: 938 N.W.2d 357,27 Neb.App. 945
• Parties: 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.
• Court: Nebraska Court of Appeals

27 Neb.App. 945

938 N.W.2d 357

STATE of Nebraska ON BEHALF OF Maci Jane WATERS, a minor child, appellee,

v. Mark Lawrence BENTLEY, appellantPamela D. Waters, appellee,andDebra S. Waters, intervenor-appellee.

No. A-19-099.

Court of Appeals of Nebraska.

Filed January 14, 2020.

Shane M. Cochran, of Snyder, Hilliard & Cochran, L.L.O., for appellant.

Adam R. Little, of Ballew Hazen, P.C., L.L.O., Lincoln, for appellee.

Moore, Chief Judge, and Bishop and Arterburn, Judges.

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 physical 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 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 psychologist 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 testimony 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 1½ 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.

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 support on Maci’s behalf, alleging that Mark was Maci’s biological 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 support 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.

In February 2017, a child support referee filed a report with recommendations regarding the State’s complaint. As relevant, 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 evidence 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 obligation, 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 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 continued 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...