State ex rel. Tina K. v. Adam B.
| Decision Date | 04 September 2020 |
| Docket Number | No. S-19-448.,S-19-448. |
| Parties | 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. |
| Court | Nebraska Supreme Court |
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 standing in loco parentis. We refine our standard for an exceptional case where a child's best interests can negate the parental 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 custody 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 custody. 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.
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 primary 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 significant 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 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 incarcerated until November 2014 and then was on work release until January 2015.
Upon release, Tina recognized she lacked stability and therefore 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 residence. 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.
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 supervised. 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 testified 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 parentis. 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 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 concentrating. Destiny also was having angry outbursts. Hansen testified 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 disagrees 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...
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