State Ex Rel. Combs v. O'NEAL

662 N.W.2d 231, 11 Neb. Ct. App. 890, 2003 Neb. App. LEXIS 146

• Court: Nebraska Court of Appeals
• Decided: May 27, 2003
• Docket: A-02-327
• Status: Published

Opinions

Per Curiam.

I. INTRODUCTION

Adrian S. O’Neal, also known as Adrian S. Bolling, is the biological father of Brittanae M. Combs, a minor child, and he appeals from an order of the district court for Douglas County granting Brittanae’s maternal grandmother, Ronetta McKinney, custody of Brittanae. For the reasons set forth below, we affirm.

II. BACKGROUND

Brittanae was bom on Februaiy 23, 1988. Brittanae’s biological mother, Ronda K. Combs, died when Brittanae was 19 months old. Ronda and Brittanae lived with Ronetta when Brittanae was bom, and Brittanae remained with Ronetta after Ronda’s death.

On June 3, 1996, Ronetta was appointed as Brittanae’s legal guardian in the county court for Douglas County. On August 20, 1997, a paternity decree was entered in the district court, establishing Adrian as Brittanae’s father and ordering Adrian to pay $331.42 per month in child support for Brittanae. The decree stated that Ronetta is Brittanae’s legal guardian and that Brittanae was in Ronetta’s physical custody at that time.

On November 7, 1997, Adrian filed a petition in the county court to terminate Ronetta’s legal guardianship of Brittanae. The county court denied Adrian’s motion when Adrian failed to appear for trial. The court entered judgment against Adrian by an order dated April 29,1999.

On September 7,1999, Adrian filed a second petition to terminate Ronetta’s guardianship. Adrian’s second petition went to trial, and the county court found in Ronetta’s favor by an order dated January 20, 2000. Adrian appealed, but this court dismissed Adrian’s appeal for lack of progression on Adrian’s part.

On September 7, 1999, simultaneously with the filing of his second petition to terminate the guardianship, Adrian filed an application to modify the paternity decree, requesting that Brittanae be placed in his custody. After two amendments, Adrian’s application to modify went to trial on October 3.

At trial, Adrian testified that he had maintained a relationship with Brittanae since her birth. Adrian testified that although he did not start paying child support until the entry of the paternity decree in 1999, he had always told Ronetta to inform him if Brittanae needed anything and that he would then take care of it. Adrian testified that he has contacted Brittanae either in person or by telephone on at least a monthly basis since her birth. Adrian testified that he has wanted custody of Brittanae since Ronda’s death.

Adrian testified that he is married, is 32 years old, and has two daughters with his wife. Adrian testified that he and his wife currently rent a three-bedroom home and that Brittanae would have her own room if she came to live with them. Adrian testified that he is employed at Lozier Corporation in shipping and receiving and has been at Lozier Corporation for 7 years.

The record shows that in August 1996, Adrian was charged with child endangerment after leaving one of his daughters, then age 2, locked in a car while he gambled at a casino riverboat. The record does not indicate the disposition of this charge.

Ronetta testified that Adrian first filed for custody of Brittanae when Brittanae was 9 years old. Ronetta testified that during the first 9 years of Brittanae’s life, Adrian saw Brittanae off and on, with 3 months being the longest time between visits. Ronetta stated that Adrian never paid child support but did buy Brittanae clothes for Christmas, for her birthday, and at the beginning of the school year. Ronetta testified that generally, Adrian had some sort of monthly contact with Brittanae, either in person or over the telephone.

Ronetta testified that Brittanae calls her “Mom” and that she and Brittanae have a very close bond. Ronetta testified that she works 8 a.m. to 4:30 p.m. and that her husband, Claude McKinney, is retired. Ronetta testified that on most days, Claude is home with Brittanae when she gets out of school.

Ronetta testified that Brittanae is an “A” student, participates in church activities, and has gone to various universities and colleges to explore career opportunities. Ronetta testified that Brittanae gets dong well with Claude and that Brittanae and Claude engage in activities together.

Ronetta testified that Adrian has never attended Brittanae’s parent-teacher conferences, inquired about Brittanae’s teachers, or asked who Brittanae’s friends are. Ronetta testified that Brittanae is afraid to express herself around Adrian and appears to be frustrated when interacting with Adrian. Ronetta testified that Brittanae is happy-go-lucky when she is at home with Ronetta and Claude and knows that she can talk to them about anything.

Brittanae testified that at the time of the trial, she was 13 years old. Brittanae testified that she has lived with Ronetta her entire life and calls Ronetta “[M]om.” Brittanae testified that she and Ronetta are involved in activities together, that Ronetta knows Brittanae’s friends and teachers, and that Ronetta attends Brittanae’s parent-teacher conferences.

Brittanae testified that initially, she had a close relationship with Adrian’s wife, but that they had drifted apart in the last month or two. Brittanae testified that Adrian’s wife appears to be agitated with her and that she does not know why. Brittanae testified that the last time she stayed overnight with Adrian on a school night, Adrian did not get her to school on time the next day.

Brittanae testified that her room at Adrian’s is actually a den with a bed and a dresser. Brittanae testified that her room has no door and that Adrian’s family stores clothes and other personal items in her room. Brittanae testified that it is hard for her to do her homework at Adrian’s because her half-sisters want to spend time with her and it is noisy.

Brittanae testified that at the time of trial, she really wanted to stay with Ronetta because of their close bond. Brittanae testified that because she had been with Ronetta her whole life, it would be extremely stressful or unbearable to move in with Adrian. Brittanae testified that at the time of trial, she did not want to live with Adrian. Brittanae stated that she would like to spend one weekend a month, every Wednesday evening, alternating holidays, and 2 weeks in the summer with Adrian.

In an order dated February 25, 2002, the trial court found that while Adrian and Ronetta are both fit to have custody of Brittanae, the care, custody, and control of Brittanae should remain with Ronetta. Specifically, the court found that Adrian had forfeited his parental rights by failing to pay child support for Brittanae before she was 9 years old. The court also noted that the record showed that Adrian “was content to let Ronetta raise Brittanae, a duty that Ronetta carried out in excellent fashion and with excellent results.” Based on its findings, the trial court found that it is clearly in Brittanae’s best interests that she remain in Ronetta’s care, custody, and control. The trial court awarded Adrian visitation with Brittanae every other weekend, every Wednesday evening, every Father’s Day, on alternating holidays, and for 2 weeks in the summer.

Adrian appeals.

III. ASSIGNMENTS OF ERROR

On appeal, Adrian argues that the trial court abused its discretion in granting custody of Brittanae to Ronetta, specifically by failing to apply the parental preference standard in determining Brittanae’s custody.

IV. STANDARD OF REVIEW

Child custody determinations, and visitation determinations, are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court’s determination will normally be affirmed absent an abuse of discretion. Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002); Jack v. Clinton, 259 Neb. 198, 609 N.W.2d 328 (2000). A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Id.

Where credible evidence is in conflict on a material issue of fact, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994), overruled in part on other grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999); Hansen v. Hansen, 240 Neb. 31, 480 N.W.2d 204 (1992).

V. ANALYSIS

On appeal, Adrian argues that the trial court abused its discretion in granting custody of Brittanae to Ronetta, Brittanae’s maternal grandmother, rather than him, Brittanae’s biological father. Adrian contends that the court failed to properly apply the parental preference standard in determining Brittanae’s custody.

The “parental preference doctrine” holds that in a child custody controversy between a biological parent and one who is neither a biological nor an adoptive parent, the biological parent has a superior right to custody of the child. In re Stephanie H. et al., 10 Neb. App. 908, 639 N.W.2d 668 (2002), citing In re Interest of Amber G. et al., 250 Neb. 973, 554 N.W.2d 142 (1996). A court may not properly deprive a biological or adoptive parent of the custody of the minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship or has forfeited that right. Id.

Adrian’s request to modify the paternity decree and award him custody of Brittanae turns this case into a custody dispute. Because the State has never attempted to terminate Adrian’s parental rights and there is no contention that Adrian is currently unfit, we address the matter of forfeiture. Additionally, inasmuch as Adrian’s fitness is not at issue, the evidence concerning the alleged child endangerment charge in 1996 will not be discussed any further.

Parental forfeiture means that parental rights “ ‘may be forfeited by substantial, continuous, and repeated neglect of a child and a failure to discharge the duties of parental care and protection.’ ” In re Interest of Eric O. & Shane O., 9 Neb. App. 676, 685, 617 N.W.2d 824, 832 (2000). “ ‘An effective . . . forfeiture of parental rights may be effected by the indifference of a parent for a child’s welfare over a long period of time.’ ” Nye v. Nye, 213 Neb. 364, 371, 329 N.W.2d 346, 350 (1983). The Nye court, quoting Haynes v. Haynes, 205 Neb. 35, 286 N.W.2d 108 (1979), stated:

“While it is trae that a parent has a natural right to the custody of his child, the court is not bound as a matter of law to restore a child to a parent under any and all circumstances. The welfare of a child of tender years is paramount to the wishes of the parent where it has formed a natural attachment for persons who have long been in the relation of parents with the parents’ approval and consent.”

213 Neb. at 371, 329 N.W.2d at 350.

In the instant case, the record shows that Brittanae had resided with Ronetta for 13 years at the time of trial and that Ronetta raised Brittanae herself for 11'A of those years. It was not until the paternity action and the child support order that Adrian sought custody of Brittanae. In short, for many years, Adrian has been content to occupy the role of a noncustodial parent visiting Brittanae every month or so while Ronetta performed the day-to-day task of raising Brittanae. A consequence of Adrian’s consent to this arrangement has been the formation of a strong bond between Ronetta and Brittanae. The fact is that Adrian has requested custody of Brittanae only at this late date, after years of apparent contentment with having Ronetta raise Brittanae. Thus, the relationship between Ronetta and Brittanae is now essentially that of natural parent and child.

The Nebraska Supreme Court has stated that a person standing in loco parentis to a child is one who has put himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent. In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002), citing Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1 (2000).

The term “in loco parentis” refers to a person who has fully put himself or herself in the situation of a lawful parent by assuming all the obligations incident to the parental relationship and who actually discharges those obligations. Weinand v. Weinand, supra. Clearly, in the instant case, Ronetta has placed herself in the situation of Brittanae’s lawful parent by assuming all the obligations of a lawful parent and discharging the same. In contrast, Adrian failed to pay child support for the first 9 years of Brittanae’s life even though Adrian knew that he was Brittanae’s father. Adrian did not assume the obligations incident to being a parent, but was content to have contact with Brittanae once a month either by telephone or in person. It was not until the initiation of the paternity action that Adrian came forward to claim custody of Brittanae. The trial court found that by the above actions, Adrian had forfeited his parental rights, and on this record, we cannot find that the court erred in this regard.

Furthermore, Ronetta’s continued custody of Brittanae is clearly in Brittanae’s best interests. Neb. Rev. Stat. § 42-364(2) (Reissue 1998) provides that in determining a child’s best interests in custody and visitation matters, the factors to be considered shall include, but not be limited to, the following:

(a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning;

(c) The general health, welfare, and social behavior of the minor child; and

(d) Credible evidence of abuse inflicted on any family or household member.

In addition to the statutory considerations discussed above, courts may consider the moral fitness of the parents, including their sexual conduct; the respective environments each offers; the emotional relationship between the child and the parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent’s character; and the capacity of each parent to provide physical care and to satisfy the needs of the child. McDougall v. McDougall, 236 Neb. 873, 464 N.W.2d 189 (1991); Anderson v. Anderson, 5 Neb. App. 22, 554 N.W.2d 177 (1996).

At trial, Brittanae, then 13 years old, testified that she wanted to live with Ronetta, not Adrian, and that because she had been with Ronetta her whole life, it would be extremely stressful or unbearable to move in with Adrian. Brittanae testified that it is difficult to do her homework at Adrian’s home because it is noisy and because Brittanae’s bedroom at Adrian’s has no door. Additionally, there is evidence that Brittanae has a strained relationship with Adrian’s wife, while the evidence shows that Brittanae and Claude are close and get along well. The evidence shows that Ronetta engages in activities with Brittanae, knows her teachers and friends, and attends Brittanae’s parent-teacher conferences. In contrast, the evidence shows that Adrian does not know Brittanae’s teachers, may not know Brittanae’s friends, has not inquired about Brittanae’s grades, and does not attend Brittanae’s parent-teacher conferences. Given this evidence, it is clearly in Brittanae’s best interests to remain with Ronetta.

VI. CONCLUSION

After reviewing the record, we conclude that the trial court correctly applied the parental preference doctrine and did not abuse its discretion in granting custody of Brittanae to Ronetta. Thus, we affirm the trial court’s order granting Ronetta custody of Brittanae.

Affirmed.

Carlson, Judge, participating on briefs.