Hopkins v. Hopkins
| Decision Date | 19 August 2016 |
| Docket Number | No. S–14–790,S–14–790 |
| Citation | 883 N.W.2d 363,294 Neb. 417 |
| Parties | Kyel Christine Hopkins, appellee, v. Robert Keith Hopkins, appellant. |
| Court | Nebraska Supreme Court |
Kent A. Schroeder, Kearney, Kenneth F. George, Mindy L. Lester, and D. Brandon Brinegar, Kearney, of Ross, Schroeder & George, L.L.C., for appellant.
Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O., Hastings, for appellee.
Heavican, C.J., Wrig ht, Connol ly, Miller–Lerm an, Cass el, and Sta cy, JJ.
, C.J.
Robert Keith Hopkins seeks review of the Nebraska Court of Appeals' decision affirming the district court's denial of Robert's counterclaim for custody of his daughters. Robert, whose marriage to Kyel Christine Hopkins was dissolved in March 2004, asserts that under Neb. Rev. Stat. § 43–2933 (Reissue 2008)
, custody should be modified, because Kyel is now married to Thomas Rott (Thomas), a registered sex offender.
The question presented is whether Kyel has met her statutory burden to produce evidence that the girls are not at significant risk and, if so, whether the district court abused its discretion by finding that the girls were not at significant risk. Guided by the plain language of § 43–2933
, we affirm the district court's denial of modification.
In 2004, Robert and Kyel divorced. The decree granted Kyel full custody of their two daughters, with regular visitation for Robert. The parties each also have children from other marriages not relevant to our review.
In January 2013, Kyel filed an application to modify visitation. Robert counterclaimed, seeking full custody. Robert asserts that he should be granted a modification of custody, because Kyel's current spouse, Thomas, resides with and has unsupervised access to the children and is a registered sex offender for reason of a felony involving a minor. Robert alleges he was not aware of Thomas' sex offender status until July 2013, after Kyel initiated modification proceedings.
In 2002, Thomas sexually assaulted his minor stepdaughter from a prior marriage. The probable cause affidavit for Thomas' arrest stated that the victim alleged that Thomas had rubbed her breasts and vaginal area 12 to 14 times over the course of 2 years, including digital penetration one time and penetration with a vibrator one time. But Thomas did not admit to these precise facts. According to the affidavit, Thomas admitted that he had touched the minor's breasts five to six times, penetrated her once digitally, and rubbed her with a vibrator. At trial on the application to modify, Thomas testified that the inappropriate touching lasted a period of 3 to 4 months, and not the 2 years alleged by the victim.
The State charged Thomas with two counts of first degree sexual assault, and one count of sexual assault of a child. Thomas eventually pled guilty to a modified count one, attempted sexual assault of a child, and the other charges were dismissed by the State. Thomas was incarcerated from 2003 to approximately 2007. He completed several voluntary rehabilitative programs while in prison. Among these was “GOLF 3,” which was a program designed specifically for sex offenders. Thomas testified that after “he had done everything at that point that I could for what they had” and participating in individual counseling at the state penitentiary, he applied for and was admitted to an inpatient sex offender program at the Lincoln Correctional Center for more intensive rehabilitation. Thomas applied for this program after he had already been denied any opportunity for parole. At the trial on modification, Thomas testified that he participated in the inpatient program “to make sure that what happened would never ever happen again.” Thomas testified that he has not been investigated for any sexual misconduct since his incarceration.
A few years after Thomas' release, he and Kyel began dating in May 2010, and they moved in together that August. They married in 2012. Some evidence at trial revealed that initially, Kyel was reluctant to address Thomas' criminal history. Joan Schwan, the children's therapist, testified that Kyel stated she preferred to put the thought of Thomas' history out of mind. At first, Kyel allegedly told Schwan that Thomas' conviction was the result of a bad divorce—a fact Schwan discovered to be untrue upon her own investigation. At trial, Schwan testified that she recommended the family be open about Thomas' criminal history and stated that Kyel's apparent denial of that history was concerning.
Other evidence in the record reveals that in 2004, Kyel dated, and had a child with, a different man who later pled guilty to a misdemeanor charge of attempted sexual assault of a child for digitally penetrating one of Kyel's other daughters.
Robert testified at the trial for modification that Kyel took no steps to investigate Thomas' background, but Robert also admitted to having no personal knowledge of this fact. In fact, Kyel and Thomas both testified that Thomas told Kyel everything about his sex offender status before they moved in together. Kyel also testified that before deciding to move in, she discussed Thomas' history with a Child Protective Services hotline and with family members, seeking their advice. Although Kyel initially concealed Thomas' sex offender status from the girls, under Schwan's direction, Kyel eventually told them during a therapy session.
The record shows that Thomas has unsupervised time with the children each day from 6 to 7 a.m. Thomas has also taken each of the girls hunting alone. The household takes precautions such as ensuring there is a lock on the bathroom door, adjusting shower schedules, establishing a dress code, having the girls change in private, and limiting Thomas' time alone with one child. Kyel and Thomas also informed other parents of his sex offender registration status before children came over to their house. Both girls testified they felt safe with Thomas, and neither girl reported any actions of a sexual nature.
Schwan testified at the trial for modification. She stated that the children have not reported any “grooming behaviors” (methods sexual abusers use to build a child's trust). Thomas has had angry outbursts in front of the girls—one time he abruptly stopped his car during an argument with the girls and another time he threw a brick. Schwan additionally testified that the girls reported Thomas had once punched a grain bin. Robert contends that these incidents are red flags. Schwan, however, disagreed. Schwan described grooming behaviors as actions an offender takes to test whether a child is likely to keep inappropriate behavior secret. For example, if an offender were to give a child special treatment, and tell the child not to reveal that special treatment to a parent, that would be a red flag. Schwan's description of grooming behaviors did not include angry outbursts.
Schwan has never met Thomas, nor was she offered to the court as an expert witness in adult sex offenders. Although Schwan had reviewed some of Thomas' prison records (which are not part of the record on appeal), she testified that she had no basis to determine whether Thomas had actually been rehabilitated. Schwan related only her opinion, based upon contact with Kyel and the girls, that there was no risk to the girls. The district court found that Schwan's opinion was entitled to “considerable weight.”
Other than Thomas' unsupervised access to the children, Robert presented no evidence of a material change in circumstances since the decree; Robert relies solely on § 43–2933
for modification.
Aside from exploring Thomas' risk level as a sex offender, the parties also presented evidence generally concerning the best interests of the children. Both Robert and Kyel called character witnesses, who generally vouched for each of Robert and Kyel's credentials as good parents. Robert testified that on one occasion in or around 2010, Kyel's home was cramped and very messy, with food and items on the floor. Robert also expressed concern that Kyel apparently was not proactive about investigating Thomas' criminal history before moving in with him. However, this testimony was contradicted by Kyel's and Thomas' own testimony.
The children, by all accounts, love both of their parents and get along well with them. The girls seem to be generally happy and doing well in school. The younger daughter testified that she would like to live with Robert in order to spend more time with her father and half siblings there. But Schwan testified that the younger child probably does not understand what that would be like in the long term because she is somewhat emotionally delayed. The older daughter testified that she was unsure which parent she would like to live with and preferred not to make a decision.
The district court denied Kyel's application to modify, finding there was no material change in circumstances. Kyel did not appeal this determination, and we will not review it. The district court then assessed Robert's counterclaim under § 43–2933
, which controls when a party to a custody suit is or resides with someone who is required to register under the Sex Offender Registration Act (SORA). The full statutory scheme of § 43–2933 is described below.
The district court found that the facts of this case triggered a presumption under § 43–2933(1)(c)
against Kyel's having custody. But the district court held that Kyel had overcome that presumption based upon Schwan's testimony. It also discussed Thomas' successful completion of rehabilitative programs and the lack of any allegations of sexual misconduct since 2003.
The Court of Appeals affirmed as modified.1 That court's modification is not relevant to the issues on appeal. It found that the presumption against custody had been overcome and affirmed the district court's continued award of custody...
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