KYEL CHRISTINE HOPKINS, APPELLEE, V. ROBERT KEITH HOPKINS, APPELLANT
No. S-14-790
NEBRASKA SUPREME COURT
August 19, 2016
294 Neb. 417
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 08/19/2016 09:08 AM CDT
Statutes: Judgments: Appeal and Error. The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court. - Judgments: Evidence: Appeal and Error. Despite de novo review, when credible evidence on material questions of fact is in irreconcilable conflict, an appellate court will, when determining the weight of the evidence, consider that the trial court observed the witnesses when testifying, and used those observations when accepting one version of the facts over the other.
- Modification of Decree: Appeal and Error. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court.
- Child Custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.
- Modification of Decree: Child Custody: Proof. In a child custody modification case, first, the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Next, the party seeking modification must prove that changing the child‘s custody is in the child‘s best interests.
- Child Custody: Convicted Sex Offender.
Neb. Rev. Stat. § 43-2933(1) (Reissue 2008) guides custody determinations when a person required to register under the Sex Offender Registration Act has access to a child. - ____: ____.
Neb. Rev. Stat. § 43-2933(1)(b) (Reissue 2008) applies when a party seeking custody resides with a person required to register under the Sex Offender Registration Act and that person committed anunderlying offense that was either a felony in which the victim was a minor or an offense making the offender‘s access to a child contrary to the child‘s best interests. Subsection (1)(c) applies when a person required to register under the Sex Offender Registration Act has unsupervised contact with a child and the underlying crime was a felony involving a minor victim. - Presumptions: Proof: Words and Phrases. A presumption is the evidentiary assumption of one fact (the presumed fact) based upon proof of other facts (the predicate facts). The presumed fact is taken as true unless the opponent of the presumed fact meets a particular burden of proof.
- ____: ____. The “bursting bubble” presumption shifts only the burden of production, and if that burden is met, the presumption disappears.
- ____: ____. Under the “Morgan” theory of presumptions, a presumption shifts the burdens of both production and persuasion, and the presumption remains in evidence even if the opponent‘s burden is met.
- Statutes: Proof. The plain language of
Neb. Rev. Stat. § 43-2933(1)(c) (Reissue 2008) shifts only the burden of production. - Child Custody: Convicted Sex Offender.
Neb. Rev. Stat. § 43-2933 (Reissue 2008) requires a trial court to consider whether, in its discretion, a sex offender poses a risk, sufficiently great or important to be worthy of attention, of committing a sexual offense against the child or children in question. - Proof. The determination that a party has met its burden of production can involve no credibility assessment; the burden-of-production determination necessarily precedes the credibility-assessment stage.
- Statutes: Legislature: Public Policy. It is the Legislature‘s function through the enactment of statutes to declare what is the law and public policy.
Petition for further review from the Court of Appeals, MOORE, Chief Judge, and PIRTLE and BISHOP, Judges, on appeal thereto from the District Court for Phelps County, TERRI S. HARDER, Judge. Judgment of Court of Appeals affirmed.
Kent A. Schroeder, Kenneth F. George, Mindy L. Lester, and D. Brandon Brinegar, of Ross, Schroeder & George, L.L.C., for appellant.
Nicholas D. Valle, of Langvardt, Valle & James, P.C., L.L.O., for appellee.
HEAVICAN, C.J.
I. NATURE OF CASE
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
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
II. BACKGROUND
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.
1. THOMAS’ OFFENSES, INCARCERATION, AND REHABILITATION EFFORTS
In 2002, Thomas sexually assaulted his minor stepdaughter from a prior marriage. The probable cause affidavit for Thomas’
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.
2. THOMAS’ ACCESS TO CHILDREN
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
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
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
3. BEST INTERESTS OF CHILDREN
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.
4. PROCEDURAL HISTORY
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
The district court found that the facts of this case triggered a presumption under
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 to Kyel.
Robert filed a petition for further review, which we granted because the interpretation of
On further review, Robert assigns, consolidated and restated, that the Court of Appeals erred by (1) finding that Kyel had rebutted the
IV. STANDARD OF REVIEW
[1] The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court.2
[2] Despite de novo review, when credible evidence on material questions of fact is in irreconcilable conflict, an appellate court will, when determining the weight of the evidence, consider that the trial court observed the witnesses when testifying, and used those observations when accepting one version of the facts over the other.3
[3] Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court.4
V. ANALYSIS
Robert asserts that if, as here, a person required to register under SORA because of a felony offense involving a minor victim resides with a party seeking custody and the person has unsupervised contact with a child,
We disagree with Robert‘s assessment of
1. PRESUMPTION IN § 43-2933(1)(c)
(a) Statutory Scheme for Custody Determinations
[4-6] Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.5 First, the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Next, the party seeking modification must prove that changing the child‘s custody is in the child‘s best interests.6 However,
Section 43-2933, in pertinent part, provides:
[(1)](b) No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child if anyone residing in the person‘s household is ... a[n] offender .. as a result of a felony conviction in which the victim was a minor or for an offense that would make it contrary to the best interests of the child for such access unless the court finds that there is no
significant risk to the child and states its reasons in writing or on the record.
(c) The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under [SORA] shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence. . . .
(3) A change in circumstances relating to subsection (1) or (2) of this section is sufficient grounds for modification of a previous order.
Speaking broadly, subsection (1)(a) applies in cases where the person seeking custody is an offender. Subsection (1)(b) governs custody determinations when a person seeking custody resides with an offender. Both subsections (1)(a) and (1)(b) state that custody shall not be granted “unless the court finds that there is no significant risk to the child.” And subsection (1)(c) imposes a statutory presumption of significant risk in certain cases, explained further below.
[7] Subsection (1)(b) does not apply to every circumstance in which a person seeking custody resides with an offender. Rather, the subsection applies only if the offender committed an underlying offense that was either a felony offense in which the victim was a minor (felony) or an offense making the offender‘s access to a child contrary to the child‘s best interests (contrary-to-interest). Subsection (1)(c) applies when an offender has unsupervised contact with a child and the underlying crime was a felony-type offense. It imposes a presumption that there is a significant risk in these cases.
Thus, to reach subsection (1)(b), a court must ask whether a party seeking custody (or other access) resides with an offender who committed either an underlying felony or contrary-to-interest-type offense. If so, subsection (1)(b) applies and the
Finally, subsection (3) states that “[a] change in circumstances relating to subsection (1) . . . is sufficient grounds for modification of a previous order.” We read this to mean that if the circumstances described in subsection (1) or subsection (2) were to arise after entry of an order, that order can be modified. For example, if after an initial order a party with custody moves in with an offender who committed a felony or contrary-to-interest offense, and the child is at significant risk, then that is a change in circumstances sufficient to modify custody.
Thomas is an offender with an underlying felony or contrary-to-interest offense, and he lives with Kyel, who has custody, so subsection (1)(b) applies. Specifically, Thomas committed a felony-type offense and also has unsupervised contact with the children; therefore, the presumption of significant risk under subsection (1)(c) also applies in this case. Should the court determine that there has been a change in circumstances placing the girls at significant risk in the context of subsections (1)(b) and (c), then subsection (3) calls for modification in Robert‘s favor, unless other mitigating factors (not relevant here) warrant retaining custody with Kyel.
The nature of the subsection (1)(c) presumption is the central controversy for our review in this case. It is interpreted in detail below.
[8] Before proceeding to the merits of Robert‘s arguments, we take this opportunity to review presumptions generally. We have noted before that the term “presumption,” though a term of art, is often conflated with other concepts.7 Broadly, a presumption (sometimes called a rebuttable presumption) is the evidentiary assumption of one fact (the presumed fact) based upon proof of other facts (the predicate facts).8 The presumed fact is taken as true unless the opponent of the presumed fact meets a particular burden of proof.
Burden of proof is another commonly confused term. It can mean, as relevant here, either the burden of persuasion or the burden of production.9 The burden of persuasion requires the party bearing the burden to convince a fact finder to a particular standard of proof.10 A burden of production requires parties to present particular evidence, regardless of whether that evidence actually persuades the finder of fact.11
[9,10] Generally, there are two types of presumptions. The “bursting bubble” presumption shifts only the burden of production, and if that burden is met, the presumption disappears.12 As the U.S. Supreme Court explained in great depth in St. Mary‘s Honor Center v. Hicks,13 “although the ... presumption
Nebraska Evidence Rule 30116 has adopted the Morgan theory of presumptions as the default rule: “In all cases not otherwise provided for by statute or by these rules a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.”
(c) Presumption in § 43-2933(1)(c)
Robert argues that
The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under [SORA] shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence.
(Emphasis supplied.)
Both Robert and Justice Connolly‘s dissent raise our per curiam decision in Watkins v. Watkins19 to assert that under the rules of statutory construction, we are required to find that subsection (1)(c) does more than merely shift the burden of production. In Watkins, a father sought to modify custody of his children because the children‘s mother resided with a registered sex offender. In that case, however, the offender had committed an underlying misdemeanor contrary-to-interest offense—not a felony offense. Therefore, we assessed whether the offender in that case was a significant risk under subsection (1)(b) alone, without reference to the subsection (1)(c) presumption. However, we interpreted subsection (1)(b) to create a presumption of significant risk.
But, in retrospect, the language of subsection (1)(b) does not support the interpretation this court made in Watkins, and we now disapprove of our reasoning in that case to the extent it is inconsistent with the instant opinion. Section
No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child
if anyone residing in the person‘s household is required to register as a sex offender under [SORA] as a result of a felony conviction in which the victim was a minor or for an offense that would make it contrary to the best interests of the child for such access unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record.
Contrary to our decision in Watkins, we find the statute requires only that the court must make a factual finding, not that the court must find that there is a significant risk in the absence of rebutting evidence. Thus, while subsection (1)(b) and SORA indicate that the Legislature perceives a correlation between sex offender criminal history and the risk that offender poses to a child, subsection (1)(b) does not require any particular outcome based upon that criminal history alone.
Reading these subsections in the context of subsection (1)(c) supports this interpretation. Subsection (1)(c) explicitly establishes a presumption affecting the burden of production. As discussed extensively above, the only two types of presumptions are those shifting the burden of production and those shifting both the burden of production and the burden of persuasion.
Although we agree that the Legislature intended subsection (1)(c) to make it more difficult for a parent to obtain or retain custody in this situation, such intent causes us to reevaluate Watkins—not ignore the plain language of the statute. Justice Connolly urges us to ignore the explicit language of subsection (1)(c) and find that subsection (1)(b) is a presumption shifting the burden of production, and, therefore, subsection (1)(c) must be a presumption shifting the burden of persuasion. We find it more proper to implement the plain language of subsection (1)(c), imposing a presumption shifting the burden of production, and, therefore, we find subsection (1)(b) is not a burden-shifting presumption at all.
Justice Connolly‘s dissent attempts to support its contrary interpretation by emphasizing language from the statute
Next, Justice Connolly, citing to a Nebraska case, implies that the court is splitting hairs, and states that “we have previously reasoned that it serves no purpose to impose a technical understanding of a legal term in a statute when the Legislature obviously intended a different result.”21 But, as noted, Watkins does not actually express legislative intent; subsection (1)(b) was not meant to establish a presumption. Therefore, we do not find that the Legislature obviously intended the dissent‘s desired result. The language of the statute requires our interpretation, and we see no indication that the Legislature
For these reasons, to overcome the presumption under
2. KYEL‘S EVIDENCE TO OVERCOME § 43-2933(1)(c) PRESUMPTION
To determine whether Kyel produced evidence to overcome the presumption of
However, we note that the Legislature has found that sex offenders pose a high risk of recidivism.23 And regulations formerly used by the Nebraska State Patrol, under authority granted by SORA, categorized “risk” to determine how likely an offender was to commit a repeat offense.24 Therefore, we conclude that the harm contemplated in
[12] The risk that an offender will reoffend need not be high or even probable in order to warrant a modification of custody under
We have discovered little authority to clarify what evidence may be necessary in order to measure risk. And we do not presume to name an exhaustive list of circumstances which might indicate the presence or absence of a significant risk of harm. Nor do we limit the method by which the risk of harm may be established. Instead, we note that the trial court‘s discretion is integral to this analysis. A trier of fact benefits from the opportunity to hear and observe witnesses. Generally, therefore, it is in a better position than appellate courts to make credibility determinations essential to the assessment of significant risk.
As discussed, because Thomas is a sex offender with an underlying felony offense and because he has unsupervised contact with the girls, it is presumed that the girls are at significant risk, requiring modification. Subsection (1)(c) operates to shift the burden of production—in other words, it is a bursting bubble presumption. Thus, to overcome the presumption, Kyel was required only to present evidence tending to prove that Thomas was not a significant risk to the girls. If she presented such evidence, then the presumption disappeared and the district court, as trier of fact, was not required to find that Thomas was a significant risk. Instead, the court was called upon to weigh the evidence presented and come to its own conclusion.
Both the district court and the Court of Appeals found that Kyel overcame the presumption of significant risk. Both courts referenced Thomas’ rehabilitative treatment, the lack of any reports or suspicion of sexual offenses since 2002, the
This evidence met Kyel‘s burden to produce evidence. Thomas’ apparent commitment to rehabilitation, the substantial passage of time since his conviction, and the lack of any allegations against him since his release all tend to mitigate a risk of recidivism. Thus, the
[13] Robert argues that the presumption was not overcome, because the district court should not have given so much weight to Schwan‘s testimony. But, as noted, the credibility of Kyel‘s evidence should not impact its rebutting effect. “[T]he determination that a [party] has met its burden of production can involve no credibility assessment[;] the burden-of-production determination necessarily precedes the credibility-assessment stage.”26
We therefore conclude that Kyel overcame the presumption of subsection (1)(c), and Robert‘s first assignment of error is without merit.
3. MODIFICATION OF CUSTODY
In his second assignment of error, Robert argues that the district court erred by denying his counterclaim for modification. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court.27 Under
[14] It is the Legislature‘s function through the enactment of statutes to declare what is the law and public policy.30 It is not for this court to overrule the Legislature‘s policy determinations. An appellate court does not sit as a superlegislature to review the wisdom of legislative acts.31 Thus, we must apply the presumption scheme of
Further, though we conduct a de novo review on the record in custody determinations, we will not disturb the district court‘s ruling unless the district court abused its discretion.32 A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result.33 Thus, we must review this case to determine whether, without regard to the presumption
Robert presented little evidence about the risk Thomas allegedly poses. Aside from showing that Thomas had sexually assaulted a minor 12 years prior to the trial on modification, and some contested evidence that Kyel was not proactive about investigating Thomas’ underlying offense, Robert produced no evidence tending to show that Thomas was a significant risk. We acknowledge that Thomas was charged with three counts of sexually assaulting a child—his stepdaughter at the time—(though he was convicted of one count of attempted sexual assault) and that the victim was the same gender as the two children in question. In addition, at the time of trial, one of the girls was about the same age as Thomas’ prior victim had been. These facts tend to weigh against a finding of no significant risk.
On the other hand, Kyel presented substantial evidence that Thomas was not a risk to the girls. Thomas had volunteered for extensive rehabilitation during his incarceration, even after he became ineligible for parole. He had not been investigated for any sexual wrongdoing since his release. It had been over a decade since Thomas’ offense. And further, Thomas expressed remorse and exhibited a highly positive response to treatment. Moreover, there was no evidence that Thomas had any other criminal history or that he had a psychological or psychiatric condition making him a high risk to reoffend.
In addition, we note that the girls testified they felt safe at home. Friends of Kyel and Thomas also testified that they did not feel he was a risk. Furthermore, Schwan, based upon her treatment of the girls, did not think Thomas was engaging in any grooming behaviors. Kyel and Thomas also testified about the precautions taken in the home to make everybody feel safe, and Thomas testified extensively about his personal
Our de novo review, therefore, reveals considerable evidence that Thomas was not a significant risk to reoffend, and only limited evidence that Thomas was a risk. We cannot say, in light of Robert‘s failure to produce more convincing evidence to prove there was a significant risk, and Kyel‘s abundance of rebutting evidence, that the district court‘s finding was untenable.
The district court did not abuse its discretion in finding that Thomas was not a significant risk and denying modification of custody under
Nor can Robert successfully argue that modification was warranted under any other theory. To be granted modification, Robert must prove that there has been a material change in circumstances making modification to be in the best interests of the children.35 Robert attempted to prove this through the framework of
It is the province of the legislative branch, and not of this court, to create policy. The court is charged with neither the duty nor the power to question the wisdom of that policy. Robert asks us to place a burden upon Kyel higher than the burden legislatively imposed; essentially, Robert requests a de facto rule that a person residing with a felony offender can never retain custody. But the Legislature has not enacted such a policy. The plain language of
Though Kyel presented significant evidence that Thomas was not a risk, she was not required to do so beyond her initial burden to produce anything to overcome the presumption. Thus, Robert incorrectly framed the issue by arguing that Kyel failed to prove that Thomas was not a risk. The burden to prove that modification was warranted remained at all times upon Robert. And the district court did not abuse its discretion by finding that Robert failed to meet that burden.
The decision of the Court of Appeals is affirmed.
AFFIRMED.
CONNOLLY, J., dissenting.
Let me get this straight. The female children in this case are statutorily presumed to be at a significant risk of harm because their mother moved them in with a felony sex offender. The sex offender previously committed sexual assaults against a different female child, his former stepdaughter with whom he was living, and he now has unsupervised access to the children who are the subject of this appeal. The children‘s therapist, on whose opinion the trial court heavily relied, could not say whether Thomas Rott (Rott) presented a risk of reoffending. But according to the majority, all that the mother needs to do to overcome the statutory presumption that these circumstances warrant a change in custody is to present any
It “ain‘t right” because the majority‘s reasoning is contrary to both the Legislature‘s obvious intent in
Here, we have a custodial parent who is living with a felony sex offender and giving that person unsupervised access to her children. This court should require evidence of an assessment, by a qualified evaluator, to show that there is no significant risk that this sex offender will harm these children. These facts amply illustrate why the majority‘s statutory interpretation will lead to absurd results.
I. § 43-2933 ESTABLISHED A PRESUMPTION OF RISK TO PROTECT CHILDREN
1. § 43-2933 CONTAINS THREE PRESUMPTIONS
Although the majority avoids this problem through a tortuous statutory analysis, in child custody disputes involving a sex offender,
The second and third fact patterns are present here. If any presumption controls under subsection (1), then under
Under
Subsection (1)(b) is similar in construction to subsection (1)(a) but applies to persons who are residing with a sex offender. It provides that a court shall not grant such a person custody, unsupervised parenting time, visitation, or other
2. AN OPPONENT OF THE SUBSECTION (1)(b) PRESUMPTION HAS THE BURDEN TO OVERCOME IT
Recently, in Watkins v. Watkins,3 we unanimously held that when
Thus, in applying
§ 43-2933 , a district court must first determine whether there is an individual residing in the household who is required to register under [SORA] and, if so, whether the offense triggering the registration requirement is due to a felony conviction in which the victim was a minor, whether the offense triggering the registration would make it contrary to the best interests of the child whose custody is at issue, or whether the offense does not meet either of these two descriptions. If the district court finds the offense to be a felony involving a minor victim or an offense contrary to the best interests of the child,§ 43-2933(1)(b) , there is a statutorily deemed change of circumstances,§ 43-2933(3) , and custody shall not be granted to the person who resides with the sex offender unless there is a finding by the district court that the circumstances present no significant risk. In sum, taken together,§ 43-2933(1)(b) and (3) create a statutory presumption against custody being awarded to the person residing with a sex offenderwho committed the described offenses, but the presumption can be overcome by evidence. The foregoing analysis applies to this case, and the district court followed this framework.4
Our explanation of the statutory scheme in Watkins was obviously not limited to SORA offenses that would make a custodial parent‘s access to his or her child contrary to the child‘s best interests because he or she was living with the sex offender. Unless a trial court makes a finding of no significant risk, a party‘s evidence that a cohabitating sex offender committed either type of specified SORA offense is a sufficient reason to modify a custody order—without presenting any further evidence of the offender‘s risk of reoffending. This is a legislative presumption that a person who committed the specified crime poses a recidivism risk unless the court finds otherwise.
In Watkins, we did not specify the type of evidence or standard of proof required to overcome the presumption. But the burden of production clearly fell on the custodial mother. And we did not treat the statutory presumption as a bursting bubble presumption. There, the mother was living with a registered sex offender and had custody of her two children from Sunday to Wednesday of each week. But she “testified that she had not allowed unsupervised contact between [her boyfriend] and the children and that she would not allow unsupervised contact in the future.”5 We noted that the mother‘s boyfriend had not committed a felony SORA offense against a minor. Yet, we agreed with the court‘s implicit finding that he had committed an offense that would make the mother‘s custody or unsupervised access to the children contrary to their best interests unless the presumption was overcome by evidence.
We set out the trial court‘s extensive factfinding, including the mother‘s prohibition of unsupervised contact between her
But Watkins illustrates that a parent living with a sex offender must produce evidence that is sufficient to rebut the presumption of significant risk and support a court‘s finding of no significant risk. And Watkins is not distinguishable because the boyfriend had not committed a felony sex offense against a minor. Had he done so,
3. WATKINS REQUIRES A PARTY TO OVERCOME THE SUBSECTION (1)(c) PRESUMPTION
Our reasoning in Watkins applies here because
The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under [SORA] shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence. However, this presumption shall not apply if there are factors mitigating
against its application, including whether the other party seeking custody, parenting time, visitation, or other access is also required, as the result of a felony conviction in which the victim was a minor, to register as a sex offender under [SORA].
By creating a prima facie case, the Legislature intended to create a stronger presumption than the ones under subsections (1)(a) and (b), which can be rebutted solely by a court‘s findings of no significant risk. The Legislature would have reasonably concluded that once a noncustodial parent establishes a prima facie case, a custodial parent must produce evidence that, if believed by the trier of fact, would rebut the presumption that the noncustodial parent is entitled to judgment.6
And the mere fact that the Legislature also provided that the prima facie evidence shall affect the burden of producing evidence does not show it intended to create a bursting bubble presumption. The majority acknowledges that the distinction between the burden of production and the burden of persuasion can be confusing. And we have previously reasoned that it serves no purpose to impose a technical understanding of a legal term in a statute when the Legislature obviously intended a different result.7
Here, the Legislature could not have intended to create a weaker presumption under subsection (1)(c) than the presumption under subsection (1)(b) that we recognized in Watkins.
In contrast, the presumption under subsection (1)(c) applies only if both of these conditions are present: i.e., (1) the sex offender previously committed a felony sex offense against a minor and (2) the custodial parent is giving the offender unsupervised access to the child. And because these two conditions raise greater concerns about a child‘s safety, the presumption in subsection (1)(c) applies even if the sex offender is not living with the custodial parent. For example, it would apply if a custodial parent were allowing a felony sex offender to take his or her child on unsupervised hunting trips. Because subsection (1)(c) raises greater concerns about a child‘s safety, Watkins should minimally require an opponent of the presumption to present sufficient evidence to support a reasonable finding that a child is not at significant risk of harm because a felony sex offender, who committed a sex offense against a minor, has unsupervised access to the child.
4. MAJORITY‘S OVERRULING OF WATKINS IS CONTRARY TO THE LEGISLATURE‘S INTENT
(a) Majority Misconstrues § 43-2933 as Creating Only One Presumption of Risk
Applying Watkins here would avoid an interpretative inconsistency and a conflict with rule 301 by giving effect to the obvious requirement in
This statement can only be interpreted to mean that subsection (1)(b) creates no presumption. And the majority‘s reasoning necessarily extends to subsection (1)(a) because it contains the same language as subsection (1)(b). If either of these subsections created a presumption of risk, that presumption would undermine the majority‘s conclusion that subsection (1)(c) creates only a bursting bubble presumption. The majority‘s attempt to square a circle has distorted the legislative intent beyond recognition, and it has done so solely to justify an incorrect and unconvincing interpretation of subsection (1)(c). Yet, everything about the construction of
(b) Majority‘s Interpretation Conflicts With the Structure of § 43-2933
The structure of
Section 43-2933(3) provides that a “change in circumstances relating to subsection (1) . . . is sufficient grounds for modification of a previous order.” This provision cannot be squared with the majority‘s statement that “while subsection (1)(b) and SORA indicate that the Legislature perceives a correlation between sex offender criminal history and the risk that offender poses to a child, subsection (1)(b) does not require any particular outcome based upon that criminal history alone.” This statement ignores the limitations in both subsections (1)(a) and (b) on custody and visitation orders unless the court finds no significant risk to a child. And why would the Legislature conclude that all of the fact patterns set out in subsections (1)(a), (b), and (c) were sufficient grounds for a modification if they did not all trigger a presumption of significant risk?
(c) Majority‘s Interpretation Conflicts With Presumption Principles
I disagree with the majority‘s statement that regardless of whether a rebutting party‘s evidence would ultimately persuade a court, that party can overcome the presumption of a significant risk with evidence that “tends to disprove the presumed fact.” Contrary to the majority‘s reasoning, I do not believe that evidence which is unpersuasive, and therefore insufficient to support a reasonable finding contrary to the presumed fact, can rebut a presumption—even if that presumption is characterized as a bursting bubble presumption.8 Even if unpersuasive evidence could be sufficient to rebut a statutorily presumed fact in some cases, that rule should not apply here. Here, there
More important, courts generally give a presumption an effect that reflects the underlying social policy and the probability that proof of the basic fact supports an inference of the presumed fact, and to correct an imbalance in light of one party‘s superior access to the evidence.9 Here, the Legislature created the presumption to protect children, a policy consideration that normally weighs heavily for a strong presumption.10 A sex offender or person living with a sex offender has superior access to the relevant evidence regarding the recidivism risk to which a child is exposed. And as I discuss more later, Nebraska‘s SORA statutes presume that a sex offender presents a recidivism risk. All of these policy considerations weigh against concluding that unpersuasive evidence can rebut the presumption under
(d) Majority‘s Interpretation Conflicts With Statutory Construction Principles
Contrary to bedrock statutory construction principles, the majority‘s interpretation renders part of the statutory language of
Worse, because the majority concludes that any unpersuasive evidence will rebut its bursting bubble presumption, there will always be no risk presented by a sex offender‘s access to a child unless the court finds that a significant risk exists. The majority explicitly states, “Should the court determine that there has been a change in circumstances placing the girls at significant risk in the context of subsections (1)(b) and (c), then subsection (3) calls for modification in Robert‘s favor, unless other mitigating factors (not relevant here) warrant retaining custody with Kyel.” (Emphasis supplied.) To conclude that a court must find a sex offender‘s access to a child presents a significant risk, the majority necessarily determines that our reasoning in Watkins was wrong. It states that “[c]ontrary to our decision in Watkins, we find [
But the statute does not require a court to find that there is a significant risk absent rebutting evidence, and we did not hold that in Watkins. We held that the risk is presumed precisely because there is no requirement that a court find a sex offender‘s access to a child presents a significant risk when the offender committed a specified offense under
(b) No person shall be granted custody of, or supervised parenting time, visitation, or other access with, a child if anyone residing in the person‘s household is required to register as a sex offender under [SORA] for [one of the described offenses] unless the court finds that
there is no significant risk to the child and states its reasons in writing or on the record.11
And if the court does not make that finding, the specified facts are a “change in circumstances [that] is sufficient grounds for modification of a previous order.”12 The statutory language could not be plainer. Our analysis in Watkins is not wrong, much less manifestly wrong.13 And our analysis in Watkins is entirely consistent with the Legislature‘s intent in overhauling the Parenting Act in 2007.
(e) Majority‘s Interpretation Conflicts With Scheme of the Parenting Act
Section 43-2933 was enacted as part of the 2007 legislative bill amending the Parenting Act.14 One of the stated purposes for L.B. 554 was to recognize “the importance of maintaining parent-child relationships while at the same time protecting victims of abuse and neglect.”15 In the legislative findings, the Legislature clarified that protecting children was one of the act‘s purposes:
Given the potential profound effects on children from witnessing child abuse or neglect or domestic intimate partner abuse, as well as being directly abused, the courts shall recognize the duty and responsibility to keep the child or children safe when presented with a preponderance of the evidence of child abuse or neglect or domestic intimate partner abuse . . . .16
Accordingly, every parenting plan must include “[p]rovisions for safety when a preponderance of the evidence establishes
When parties contest temporary custody and visitation orders, they must file a “child information affidavit” that includes “any circumstances of child abuse or neglect . . . that are likely to pose a risk to the child.”19 After a hearing, a court‘s temporary parenting order must include “provisions for safety and a transition plan, consistent with any court‘s finding of child abuse or neglect.”20
Similarly, when a court must develop a parenting plan because the parties have not presented one for approval,21 it must impose limitations to protect a child from harm if it finds by a preponderance of the evidence that a parent has committed specified acts, including child abuse or neglect.22 The many possible limitations include changing the custody allocation, requiring supervised visitation and parenting time, and restraining a parent from communicating with a child.23
Significantly,
Sections 43-2932 and 43-2933 were both created as part of the 2007 amendments to the Parenting Act.25 Section 43-2933 does not set out a separate procedure from the one created by
Section 43-2932 and its sister statute,
(f) Majority‘s Interpretation Conflicts With the Presumption of Risk Under the Amended SORA Statutes
As explained, the probability that proof of the basic fact supports an inference of the presumed fact is a factor courts consider in determining the effect to give a presumption.26 For this basic fact—proof of a felony sex offense against a minor—the Legislature has implicitly determined that there is a significant probability that the sex offender will reoffend for an extended period.
Before 2009, the Nebraska State Patrol determined the registration and notification requirements for sex offenders based on its individualized assessments of their high, moderate, or low recidivism risk.27 In 2009, the Legislature abandoned that requirement and enacted an offense-based system of sex offender registration and notification rules.28 The new registration and reporting requirements rely solely on the type of “registrable offense” that a sex offender committed.
Section 29-4005 now sets out three different registration periods for sex offenders, depending on the severity of the offense. As relevant here, if the registrable offense was punishable by imprisonment for more than 1 year, the registration and reporting period is for 25 years.29 The record shows the court accepted Rott‘s guilty plea to a reduced count of attempted
Under L.B. 285, the presumed risk represented by the severity of a sex offense is the public policy of this state and should certainly apply when a person who has committed a felony sex offense against a minor has unsupervised access to a child. I believe it is inconsistent with the unrebuttable presumption of risk under the SORA statutes to conclude that a party can rebut the presumption of risk under
(g) Nebraska Evidence Rule 301 Should Apply
In child custody modification appeals, we normally conduct a de novo review of the record to determine whether the trial court abused its discretion.31 But the effect to be given a statutory presumption and the standard of evidence required to overcome it present questions of law that we independently review.32
All of the considerations for determining the effect of a presumption weigh for applying evidence rule 301 to the presumption under
II. MAJORITY OPINION WILL CREATE ARBITRARY JUDGMENTS
To recap, I believe the majority misconstrues
But the majority ignores two significant problems with its approach. First, the noncustodial parent does not have access to the information relevant to assessing a sex offender‘s recidivism risk. So, a custodial parent‘s claim that a sex offender presents no risk to a child can prevail even on unpersuasive evidence—as in this case. Upon that meager showing, the noncustodial parent has the burden to present unavailable evidence. Second, a trial court cannot make that assessment without the input of a qualified evaluator. The majority would presumably not hold that a trial court has discretion to determine whether a person suffers from a mental disorder absent an expert‘s opinion. I see no reason to treat this issue differently.
1. ONLY LAW ENFORCEMENT AGENCIES HAVE THE RELEVANT INFORMATION
In concluding that Kyel‘s evidence burst the statutory presumption, the majority relies, in part, on the lack of allegations
Similarly, in concluding that Robert failed to prove Rott posed a significant risk to these children, the majority states that Rott has not been investigated for any sexual wrongdoing since his release from prison and that the evidence failed to show he has any other criminal history. These statements also impliedly impose a burden on noncustodial parents to present such evidence once a custodial parent presents unpersuasive evidence that a child is not at risk.
But Nebraska‘s statutes prevent a noncustodial parent from obtaining such evidence. In 2002, when the Nebraska State Patrol still performed individualized risk assessments for sex offenders, the Legislature enacted a measure to ensure that the State Patrol had access to the relevant information for determining a sex offender‘s recidivism risk under its assessment instrument.33 Specifically, under the 2002 enactment, the State Patrol‘s personnel for the sex offender and community notification division have access to
all documents that are generated by any governmental agency that may have bearing on sex offender registration and community notification. This may include, but is not limited to, law enforcement reports, presentence
reports, criminal histories, birth certificates, or death certificates. . . . Access to such documents will ensure that a fair determination of what is an appropriate registration period is completed using the totality of all information available.34
The State Patrol still has access to this information, although it no longer performs individualized risk assessments. Instead, it provides this information to the Office of Parole Administration, which must perform an individualized risk assessment before releasing a sex offender who is subject to a lifetime registration requirement.35
But
In short, unlike statutorily authorized agents, noncustodial parents cannot discover from official records whether a felony sex offender has a criminal history, other than the offense that resulted in the public notification, or whether there are other allegations of sex offenses. That lack of access illustrates the obvious reason for creating a statutory presumption. Contrary to that legislative intent, the majority‘s conclusion that Robert failed to produce persuasive evidence of Rott‘s
2. COURTS ARE NOT EQUIPPED TO EVALUATE A SEX OFFENDER‘S RECIDIVISM RISK
For various methodological reasons, commentators have noted that actuarial risk assessment instruments, like the one that the Nebraska State Patrol formerly used, underestimate a sex offender‘s long-term recidivism risk.37 As we noted in Slansky v. Nebraska State Patrol,38 studies have shown that sex offenders continue to present a risk for reoffending for up to 20 years after release or supervision. Nonetheless, research has shown that the accuracy of different approaches to predicting the long-term risk posed by sex offenders, in the aggregate, can be ranked in the following order: (1) actuarial assessments, like the one that the State Patrol used; (2) guided clinical assessments that rely on the systematic professional judgment of qualified professionals based on empirically derived instruments; and (3) unstructured clinical judgment.39
But a court presiding over a child custody dispute cannot perform an actuarial assessment because it does not have access to the relevant information or the training to use the instrument. And if a mental health professional‘s unstructured clinical judgment is the least effective approach to predicting a sex offender‘s recidivism risk, then an untrained trial judge obviously cannot determine that risk except through guesswork.
These problems show that interpreting
III. KYEL FAILED TO REBUT THE PRESUMPTION OF A SUBSTANTIAL RISK
The majority reduces Robert‘s evidence to a concern that Kyel had not investigated Rott‘s criminal history. It concludes that Robert‘s concern was contradicted by Rott‘s and Kyel‘s testimonies.
Not so. The majority incorrectly states that Robert presented no other evidence of a material change in circumstances other than Rott‘s unsupervised access to the children. Kyel‘s failure to investigate Rott‘s offense was only part of the evidence supporting Robert‘s claim that Rott presented a significant risk to his daughters and that Kyel would not protect them. Robert showed that Kyel had previously failed
I also disagree that the issue is whether Robert showed a material change in circumstances under our case law. The issue is whether Kyel rebutted the presumption that Rott presented a substantial risk to her children to avoid the statutorily mandated change in circumstances under
Robert presented evidence of the basic fact—Rott‘s conviction of a felony sex offense against a minor—that triggered the Legislature‘s presumption that his children were at a substantial risk because Rott had unsupervised access to them. Kyel presented no evidence of Rott‘s recidivism risk, despite being the party with access to this information. So, there was no conflicting evidence on Rott‘s recidivism risk. And if this evidence was sufficient to rebut the presumption of risk, there is no case in which the evidence would be insufficient. All a custodial parent needs to say is that a sex offender who has unsupervised access to his or her child has not yet harmed the child or taken steps to do so. The majority has set a low bar for custodial parents to circumvent the will of the Legislature.
Moreover, leaving aside the majority‘s bursting bubble presumption theory, I believe it misreads the record to conclude that Robert failed to show a material change in circumstances. First, it ignores evidence that Kyel has previously failed to protect her children from a sex offender. Second, it ignores the requirements of
Instead, the trial court and the majority have relied on weak evidence that amounts to proof that because nothing has happened so far, the children are not at risk. But Rott and Kyel both have a history of minimizing their conduct. And of course, they had every incentive to do so. Having to take their word for the children‘s safety only emphasizes the need for a more reliable opinion about Rott‘s recidivism risk. That evidence did not exist. And I believe that the record shows that the majority‘s conclusion is unsupportable.
1. SUMMARY OF KYEL‘S EVIDENCE SHOWS WHY MAJORITY INCORRECTLY CONCLUDES THE PRESUMPTION OF RISK WAS REBUTTED
Contrary to the majority‘s conclusions, the evidence did not show that these children were not at significant risk of harm. During these proceedings in July and August 2014, Robert and Kyel‘s daughters were ages 15 and 13. Kyel also had two
(a) Factual Basis for Rott‘s Criminal Conviction and Rott‘s Testimony About His Conduct
As the U.S. Supreme Court has explained, a sex offender‘s minimizing of his or her past conduct is a serious impediment to rehabilitation.42 And the record shows that Rott and Kyel omitted or glossed over significant facts relevant to Rott‘s rehabilitation to minimize the risk that his unsupervised access to the children presented. It is not pleasant to set out the following facts. But I believe it is necessary, because Kyel did not produce evidence of Rott‘s treatment evaluation or his actuarial risk assessment.
Significant discrepancies existed between Rott‘s testimony and the facts underlying his sex offense conviction. As stated, in 2003, the State charged Rott with two counts of first degree sexual assault and one count of sexual assault of a child for conduct occurring from May 1, 2000, to February 28, 2002. A police officer‘s probable cause affidavit stated that in November 2002, Rott‘s former stepdaughter, who was then age 14, reported that Rott had sexually assaulted her for the past 2 years. She reported that he had touched or rubbed her breasts and vaginal area about 12 to 14 times in the previous 2 years. She said that he had also digitally penetrated her vagina on one occasion and penetrated her vagina with a vibrator on one occasion. The officer further stated that in a recorded interview, Rott admitted that he had touched and kissed his stepdaughter‘s breasts five to six times in the past 2 years, rubbed her vagina with a vibrator, and observed her as she masturbated.
Rott said he and his stepdaughter had talked about her masturbating, but that he had never watched her. He said he did not deny this allegation in court because it was petty and he wanted to accept responsibility for his conduct. In contrast to his recorded statements to an officer in 2002, on cross-examination, he explicitly denied having sexual contact with his stepdaughter over a 2-year period. He said that the sexual contact occurred over a 3- to 4-month period. Later, he was asked why the threat of prison had not been a deterrent with his stepdaughter when he clearly knew that penetrating her was a crime. He denied penetrating her and said that when he committed those crimes, he did not think he could go to jail for his conduct.
Contrary to the majority‘s statements, in the recorded interview with an officer, Rott did not admit to digitally penetrating his stepdaughter. And the majority fails to mention that he did admit to touching and kissing his stepdaughter‘s breasts five to six times over a 2-year period. Additionally, contrary to his denial at trial, Rott admitted to the officer that he had watched his stepdaughter masturbate. Finally, the probable cause affidavit shows that his stepdaughter accused him of penetrating her vagina with a vibrator, not simply rubbing her with a vibrator as Rott stated.
We cannot know from this record whether Rott‘s stepdaughter gave a sworn statement about his conduct. But we have previously stated that a Nebraska State Patrol evaluator can consider a sex offender‘s sexual assault behavior as reflected in a victim‘s statement that supports a charged crime, even if
The majority opinion downplays both the significance of Rott‘s previous sexual assault behavior and his minimizing of his previous conduct. But these are factors that an expert would consider in assessing a sex offender‘s rehabilitation. And the evidence showed that both Rott and Kyel had concealed or minimized his previous conduct. Moreover, they contradicted each other regarding Kyel‘s knowledge of his conduct.
(b) Rott and Kyel Minimized or Concealed Rott‘s Sexual Assault Behavior
Kyel began dating Rott in May 2010, about 3 years after he was released from prison. Kyel said that Rott told her his criminal history and had been honest about what he had done. She said that she knew he was a registered sex offender and that the crime involved his stepdaughter. Kyel testified that she “called the hot line for the child protective services” and spoke with her family members before deciding to move in with Rott in September 2011. They married in June 2012. But on cross-examination, Kyel admitted that she moved in with Rott about 3 months after she started dating him in 2010. Rott‘s testimony confirmed that Kyel and her children moved in with him in August 2010 after they had dated for 3 months.
In July 2013, Robert told one of his daughters not to trust Rott after he saw Rott‘s sex offender status online. The
During Schwan‘s pretreatment assessment, Kyel reported that the sexual assault allegations against Rott resulted from his going through a bad divorce. In contrast, Rott testified that by June 2010, Kyel knew that he had had sexual contact with his 14-year-old stepdaughter and that the charges against him were not the result of a messy divorce. Kyel told Schwan that she did not want to think about Rott‘s sex offender status and had pushed it to the back of her mind. Kyel admitted on cross-examination that she did not know the details of what Rott had done until after she started therapy sessions with Schwan.
In fact, the truth about Rott‘s previous conduct came to light only because Kyel‘s statements prompted Schwan to investigate. Schwan obtained Rott‘s prescreening report for inpatient sex offender treatment at the Lincoln Regional Center. This treatment occurred before Rott was released from custody in 2007. Schwan said at the time of the prescreening assessment that Rott had admitted to teaching his stepdaughter “how to French kiss,” touching her vaginal area twice, and having sexual contact with her six to eight times.
Because Kyel had minimized Rott‘s conduct, Schwan went over this information with her. She encouraged Kyel to tell her daughters about Rott‘s past for their own protection because keeping things a secret “increases the risk.” Kyel told her daughters about Rott‘s past during a September 2013 therapy session. This was more than 3 years after Kyel had moved her daughters in with Rott. One daughter said that Kyel told her something happened with Rott‘s daughter when he was married to another woman but that no one had told her the whole story.
But on cross-examination, Schwan said that Kyel only reported to her what Rott had told Kyel about his going
In addition, Kyel‘s personal history raised concerns that she would not protect her daughters from sexual abuse. Schwan‘s pretreatment assessment showed that Kyel had minimized her former boyfriend‘s sexual abuse of her oldest daughter. Kyel reported to Schwan that one of her daughters had been in counseling when she was about age 5 or 6 because Robert‘s father and mother had alleged that Kyel‘s former boyfriend might have sexually abused her oldest daughter and that the other daughter might have witnessed it. Kyel reported to Schwan that after a law enforcement interview, the boyfriend was asked to leave the house.
But Schwan testified that the former boyfriend had sexually assaulted Kyel‘s oldest daughter. The evidence showed that the State had originally charged the former boyfriend with first degree sexual assault. But under a plea agreement, the court convicted him of attempted sexual assault on a child. Schwan acknowledged that Kyel‘s relationship with another sex offender created concern that she might “have blinders on for what was going on” and not set appropriate boundaries. Schwan admitted that she was concerned that Kyel had
Nevertheless, Schwan encouraged Kyel to see a therapist for herself, in part because Kyel had also been sexually abused as a child. She said that research has shown this history creates a risk that a woman might not recognize red flags when her children are at risk for sexual abuse. Schwan believed Kyel was working on recognizing warning signs, but she said that working on her own issues in therapy would help. Schwan did not know whether Kyel had complied.
The fact remains that Kyel did not tell her daughters about Rott until one daughter learned about his status from Robert. Kyel‘s excuse was that she did not want her daughters to be stigmatized if it got around school that their stepfather was a sex offender. But she also said that if one of her daughters invited a friend over, she would tell the parent that Rott was a registered sex offender. Kyel also did not tell Robert about Rott‘s history.
(c) Household Precautions
The majority emphasizes that 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 [Rott‘s] time alone with one child.” But Kyel said that she and Rott had taken precautions around the house because the girls were not used to living with a male, not because of Rott‘s history. Rott similarly said he and Kyel took precautions to make the children and their friends feel safe, not because he was a risk to them.
(d) Schwan Offers No Opinion on Rott‘s Risk of Reoffense
Despite Schwan‘s stated concerns about Kyel‘s judgment and past conduct and despite Schwan‘s inability to assess whether Rott presented a recidivism risk, she opined that the children were not at risk living with Kyel. She said she had worked with the children to determine if appropriate boundaries were in place in the home and whether any red flags indicating a risk were present, particularly grooming behaviors. She had not perceived any and did not see any need for a safety plan. Her focus was on the family‘s not having secrets. And she said that the children had not reported anything to make her think that they would be unsafe living with Rott.
But on cross-examination, Schwan acknowledged that the children had not told Kyel about incidents involving Rott‘s explosive temper until she encouraged them to do so in therapy. Once, while driving very fast on a gravel road, Rott had slammed on his car‘s brakes when he became angry with the children for not doing their chores. Another time, he had thrown a brick at a Quonset building when he was angry with one of the children, who had also seen him punch a grain bin and did not tell Kyel. But these incidents did not cause Schwan to think that Rott presented a significant risk of harm. This same child said Rott had never hit her and denied feeling endangered by him. But she did not talk to him much
2. EVIDENCE WAS INSUFFICIENT TO SHOW NO SIGNIFICANT RISK
Rott‘s and Kyel‘s testimonies were inconsistent on why Kyel minimized Rott‘s conduct to Schwan. Was it because Rott had minimized his account to Kyel? Or did Kyel minimize his conduct to Schwan, despite knowing the full extent of what he had done? Schwan believed that Rott had minimized to Kyel his previous sexual assaults. But contrary to the majority‘s opinion, Rott‘s and Kyel‘s testimonies did not refute Robert‘s claim that Kyel took no steps to investigate Rott‘s criminal history before moving her children in with him. Schwan specifically testified that she was concerned by Kyel‘s moving in with Rott without knowing the full extent of what he had done.
The record shows that Schwan‘s investigation into Rott‘s criminal history is the only reason that Kyel ever provided any information to her daughters about Rott‘s past. Her excuse that she did not want to stigmatize them at school cannot be reconciled with her testimony that she told their friends’ parents about Rott‘s sex offender status. Kyel also refused to tell Robert about Rott‘s status, thus concealing her poor judgment—because Robert would have known that this was the second time that Kyel and her daughters had lived with a sex offender. Minimally, the evidence strongly suggested that because of Kyel‘s desire to maintain an emotional attachment to Rott, she would resist an honest assessment of evidence that Rott posed a risk to her daughters.
Unsurprisingly, Rott‘s criminal history, coupled with Kyel‘s history of living with a different sex offender who had sexually assaulted her oldest daughter, caused Schwan to question Kyel‘s judgment and ability to protect her daughters. And Schwan was concerned about Rott‘s minimizing of his sexual assault behavior, a known impediment to rehabilitation.
The majority, like the lower courts, relied, in part, on Rott‘s participation in sex offender treatment programs to conclude that Kyel had rebutted the presumption of risk. But Rott‘s treatment evaluation would be significant evidence of his risk, and Kyel did not produce it. So Rott‘s statement that he had satisfactorily completed the treatment did not show that he had been rehabilitated or rebut the presumption of significant risk absent evidence of his treatment evaluation showing that he did not present such a risk.
In the light of Schwan‘s concerns about Kyel‘s poor judgment and her admission that she did not know whether Rott had been rehabilitated or presented a recidivism risk, Schwan‘s opinion that these children were not at risk was unpersuasive. The supposed household precautions did not allay concerns about Kyel‘s judgment or Rott‘s recidivism risk. Schwan would not have asked Kyel to take precautions if there was no risk. And Schwan was curiously unconcerned about evidence that Rott could not control his anger impulses around the children. Research has shown that apart from a sexual interest in children, the second strongest predictive factor of sexual recidivism is an “antisocial lifestyle and orientation, as characterized by . . . ‘reckless, impulsive behavior.‘”45 Lifestyle impulsivity has a well-established correlation with sexual recidivism.46
Schwan‘s failure to evaluate Rott‘s recidivism with known risk factors may be consistent with her statements that she was not his therapist. But her testimony failed to show that the
Moreover, all the evidence—if it existed—to rebut the presumption of a significant risk of harm was available to Kyel through Rott. She could have presented his risk assessment, the length of his required registration, and his treatment evaluation to prove that he did not have a significant risk of reoffense. Because she failed to present any of this evidence, the record suggests the documentation would not have been favorable to her. Alternatively, she could have obtained the opinion of a professional qualified to assess Rott‘s recidivism risk. As stated, an individualized psychological assessment is another means of showing no significant risk of recidivism.
But any sex offender and any custodial parent choosing to live with a felony sex offender will have incentive to claim that the offender is rehabilitated and that the parent‘s child is not at risk—even if the sex offender has actually been assessed with a high recidivism risk. As noted, sex offenders can present a recidivism risk up to 20 years after release or supervision.47 So, no matter how credible such testimony appears, a trial court will not know the real risk a child is exposed to absent a valid risk assessment. I believe that concluding that the presumption of risk is rebutted by self-serving testimony and the opinion of a witness who has not performed a valid risk assessment will lead to absurd results that place children at risk.
Robert did not have access to the information for a reliable risk assessment. And under Watkins, he was not required to present it. Nor did the court have the information or expertise needed to assess Rott‘s recidivism risk. So the burden fell on Kyel, as the party living with a sex offender, to rebut the presumption of a significant risk by obtaining the relevant information from Rott or obtaining a risk assessment from someone
As stated, the effect to be given a statutory presumption and the type of evidence required to overcome it present questions of law that we independently review.48 When a child is living with a person who has previously committed a felony sex offense against a minor and has unsupervised access to the child, I would hold that evidence of a valid risk assessment is required to rebut the presumption of significant risk. Absent a valid risk assessment, a court‘s conclusion that the offender poses no significant risk to the child is unsupportable and untenable. I conclude that Kyel failed to rebut the presumption under
Because the presumption controls, Robert has met his burden of showing that a statutorily mandated change of circumstances exists to support a change of custody, regardless of whether the evidence would be sufficient to show a material change in circumstances under our case law. I would reverse, and remand with instructions for the Nebraska Court of Appeals to instruct the district court to modify the custody disposition to make Robert the primary custodian and to consider the circumstances under which Kyel would be permitted visitation.
MILLER-LERMAN, J., dissenting.
For purposes of this dissent, I accept and apply the legal framework adopted by the majority, but I respectfully dissent from the majority‘s assessment of the evidence. Upon my review de novo on the record, I believe that the district court erred when it denied Robert‘s counterclaim for modification and that the Nebraska Court of Appeals erred when it
Taken as a whole, the evidence shows that the environment surrounding Thomas’ prior felony sexual assault crime bears a strong resemblance to the current domestic setup. Kyel remains largely in denial, and the therapist who testified as to the risk Thomas may pose had never interviewed Thomas.
In my view, the record contains convincing evidence that Thomas posed a significant risk of harm. Thomas was convicted of a felony count of attempted sexual assault, after being originally charged with two counts of sexual assault in the first degree and one count of sexual assault of a child. The assault victim was a minor who was Thomas’ teenaged stepdaughter, similar to the children at issue in this case.
Thomas admitted to fondling and digitally penetrating the victim, but minimized the seriousness of his actions by claiming there were fewer instances over a shorter period of time than that alleged by the victim.
The evidence shows that Kyel is reluctant to acknowledge the extent of Thomas’ criminal behavior, and she admits that she would prefer to ignore Thomas’ sex offender history. Kyel has previously failed to recognize warning signs, exposing another of her daughters to alleged molestation by a previous love interest. It is not in the girls’ best interests to entrust their safety to an individual who does not comprehend the hazards posed by their situation.
The record shows that therapist Schwan never met with Thomas and was not an expert in treating adult sex offenders; she evidently based her assessment of Thomas on her conversations with the girls and Kyel. The basis for Schwan‘s opinion is thin; Schwan‘s opinion itself is not robust or convincing.
Given that Thomas’ criminal history is so concerning, and that even Kyel‘s evidence demonstrates avoidance and denial, I would find that the evidence satisfies Robert‘s burden under the statute and shows that the girls are at significant risk. Robert met his burden to show that modification was warranted.