State v. C.-Party
| Decision Date | 23 December 2021 |
| Docket Number | No. S-21-043.,S-21-043. |
| Citation | 310 Neb. 638,967 N.W.2d 690 |
| Parties | 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. |
| Court | Nebraska Supreme Court |
Avis R. Andrews, Fremont, for appellant.
Megan E. Shupe, of Reagan, Melton & Delaney, L.L.P., Bellevue, for appellees Mary and Tim Soppe.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
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 framework therein, we reverse, and remand for further proceedings for reconsideration under the standard in State on behalf of Tina K., supra .
Daphnie was born in 2014. Until January 2016, she lived primarily with her mother, Christina, in Colorado. The Colorado 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, commencing 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 custody 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 application 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 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 positive 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 participating 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 positive 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 previously 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: 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 diagnoses of severe alcohol use disorder, in early remission; severe "Amphetamine-type Substance Use Disorder," in early remission; 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 parenting 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 generally requested custody because she is Daphnie's biological 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] deficient 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.
Christina assigns, summarized and restated, that the district court erred...
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