Michael v. Donna

• Decision Date: 27 August 2002
• Docket Number: No. A-01-938., No. A-01-1044
• Citation: 652 N.W.2d 618,11 Neb. App. 346
• Parties: MICHAEL B., Appellee, v. DONNA M., Appellant.
• Court: Nebraska Court of Appeals

652 N.W.2d 618

11 Neb. App. 346

MICHAEL B., Appellee, v. DONNA M., Appellant.

Nos. A-01-1044, A-01-938.

Court of Appeals of Nebraska.

August 27, 2002.

Charles R. Maser, of Truell, Murray & Maser, P.C., Grand Island, for appellant.

Mark L. Eurek, of Law Office of Mark L. Eurek, P.C., Loup City, for appellee.

IRWIN, Chief Judge, and INBODY and CARLSON, Judges.

CARLSON, Judge.

INTRODUCTION

This case involves two appeals that have been consolidated for our review. In case No. A-01-938, Donna M. appeals from an order of the district court for Sherman County, in which order the court took legal custody of her daughter, Taylor M. In case No. A-01-1044, Donna appeals from the same order of the district court, again challenging the court's taking legal custody of Taylor, but also challenging the court's finding that Donna was in contempt for failing to allow Michael B., Taylor's biological father, his court-ordered visitation.

BACKGROUND

Taylor was born May 12, 1995, and was the result of an extramarital affair between Donna and Michael. At the time of Taylor's birth, Donna was married, and still is, to Richard M. On March 5, 1998, the district court for Sherman County found Michael to be the biological father of Taylor. After such finding, Michael moved for an order granting him temporary visitation. The court appointed Alana Anderson as guardian ad litem to investigate and negotiate a visitation schedule.

At the request of Donna, the parties and Anderson consulted with Dr. Michael Kelley, a psychologist, in order to establish a visitation plan in Taylor's best interests. In Kelley's report, he stated that Taylor exhibited mixed evidence of excessive separation anxiety from Donna, and he found

strong evidence that Taylor has a significant behavior problem, related to the lack of limits placed on her behavior, which if untreated, will lead to significant adjustment problems for Taylor as she gets older.... This behavior problem, if left untreated, will also interfere with the implementation of a reasonable visitation arrangement between Taylor and her biological father.

Kelley recommended that Taylor, and those responsible for her care, be treated by a mental health professional to address Taylor's behavior disorder and that the focus of the treatment would be for the parents to learn limit-setting skills that are firm and nonabusive. Kelley's report also included a recommended visitation arrangement.

On September 11, 1998, following a hearing on visitation, the trial court ordered a specific visitation schedule in accordance with the recommendations of Kelley. The visitation plan consisted of frequent visits of increasing duration. The trial court further ordered, based on Kelley's recommendation, that Taylor was to begin counseling immediately and that all parties were to participate.

On December 30, 1998, Michael filed a motion for contempt alleging that Donna failed to abide by the visitation schedule set forth in the court's order of September 11. On January 22, 1999, the trial court found that Donna was not in willful contempt.

On April 11, 1999, at the end of a visit, Michael returned Taylor to Donna's son, who took Taylor to her maternal grandparents' home. Shortly thereafter, emergency medical personnel were called to the grandparents' home due to a report that Taylor was not physically responding. Taylor was not taken to the hospital by the emergency personnel at that time because they did not feel that Taylor was in any immediate danger. Subsequently, Donna's son took Taylor to the emergency room, where he reported that Taylor had been unconscious and possibly had had a seizure. The emergency room notes state that "there has been some allegation that there may be some abuse from [Taylor's] biological father as there was some visitation this afternoon and this evening." Taylor was examined at the hospital, wherein no specific abnormalities or indications of abuse were found. Hospital personnel referred Taylor to a pediatric neurologist, who examined Taylor and found normal brainwave activity.

On July 15, 1999, Taylor had her first counseling session pursuant to the trial court's order of September 11, 1998. Taylor met with Doris Harman, a professional counselor, and continued counseling with her until December 1999. Harman testified that before Taylor started her sessions, Donna told her about the visitations with Michael and about behavior problems that were occurring with Taylor, such as Taylor's wetting the bed and not wanting to sleep by herself. Donna also told Harman that Donna was concerned about possible abuse. Harman testified that while counseling Taylor between July and December 1999, Harman saw no signs of physical or sexual abuse.

On March 16, 2000, Taylor began seeing Dr. Cynthia Topf, a clinical psychologist. Donna testified that Taylor started counseling with Topf due to some financial issues and because it was more convenient, since Topf was already counseling the foster children living in Donna and Richard's home. Topf testified that prior to Taylor's session with her on March 16, Donna told her that Taylor does not want to go on visits with Michael and that Taylor exhibits certain behaviors after visits, such as wetting the bed, having nightmares, and not wanting to take a bath. Taylor met with Topf for the second time on March 17.

Also on March 17, 2000, after Taylor met with Topf, Donna took Taylor to meet Michael for a weekend visitation exchange. Donna had someone with her who videotaped the exchange, pursuant to Topf's recommendation. The videotape shows that Donna did not directly prevent or discourage the visitation, but she allowed Taylor to repeatedly refuse to put her shoes on and to remain inside Donna's vehicle for an hour after Michael arrived. The videotape clearly shows Donna's failure to place limits on the child.

On March 20, 2000, the day after the weekend visitation ended, Taylor met with Topf again. Topf testified that at this session, Taylor acted differently than she did at the first two sessions, and that Taylor "said something like `he touched me down here' `down there,' and she grabbed her crotch and she wet herself." Topf testified that at that point, she terminated the session and told Richard, who had brought Taylor to the session, to take Taylor to the hospital to have her examined. Donna and Richard took Taylor to the hospital, where she was referred to "Project Harmony" and was examined. The examination results were inconclusive. Based on the possibility of abuse, the hospital called the police, and the Nebraska State Patrol and the office of the Attorney General began an investigation regarding allegations that Michael had abused Taylor. In May, the Sherman County Attorney and the office of the Attorney General concluded that there was insufficient evidence to charge Michael with a crime relating to sexual abuse of Taylor.

In March 2000, after the sexual abuse investigation began, a criminal complaint against Michael was filed in the county court for Douglas County, based on Donna's assertion that Michael had assaulted her by grabbing her arm. In August, following a hearing, the trial court dismissed the charge.

Also in March 2000, in the district court for Douglas County, Donna filed and was granted a protection order against Michael on behalf of herself and Taylor. After a hearing in April, the protection order was dismissed.

On April 17, 2000, Michael filed a motion for contempt alleging that Donna had failed to abide by the court's order regarding visitation. His affidavit stated that he was denied visitation on March 4 and 5, March 31 through April 2, and April 14 through April 16. A hearing on the motion was set for May 19, but pursuant to a continuance granted at the request of Donna, the hearing was rescheduled for June 12. The continuance was granted contingent upon Donna's allowing Michael to have his scheduled visitations until the hearing date. Michael's next visitation was scheduled for the weekend of May 19.

At the May 19, 2000, visitation exchange, Donna was not present and the relatives who brought Taylor would not get her out of the car or hand her to Michael. Michael called the police, and when they arrived, Michael was handcuffed and taken to jail on a warrant for his arrest based on Donna's assault allegations.

On June 2, 2000, a juvenile petition was filed by the Douglas County Attorney's office based on affidavits of Topf and Donna stating that Taylor should be placed in the custody of the Department of Health and Human Services (Department) in order to protect her from Michael. Taylor was removed from Donna and Richard's home and taken into custody by the Department and placed in foster care. Donna testified that Taylor was voluntarily placed in the custody of the Department. Michael was granted rights of supervised visitation while Taylor was in foster care.

On June 5, 2000, the hearing on Michael's motion for contempt was continued on the court's own motion, and Anderson was reappointed as guardian ad litem to investigate the circumstances regarding the contempt motion. Anderson was given the authority to order Michael, Donna, Richard, and Taylor to undergo psychological evaluations. Dr. Patricia Sullivan was appointed by the trial court to perform the psychological evaluations. The evaluations took place from July through September.

In July 2000, Anderson terminated Topf as Taylor's therapist. Taylor returned to Harman in August for therapy and was still counseling with her at the time of trial.

The Douglas County Attorney's office moved the court to dismiss the pending juvenile case regarding Taylor, and on November 29, 2000, the case was dismissed. The dismissal was based on affidavits of Topf and Harman, in which each stated that it is in Taylor's best interests to be returned to Donna's custody.

On December 6, 2000, Michael filed a petition for change of custody of Taylor. On January 11, 2001,...