A-21-951, Annette M. Kitsmiller (Appellee) v. Mark J. Kitsmiller (Appellant)
Separate Juvenile Court for Lancaster County, Hon. Shellie Sabata
Attorney for Appellant: Angelica W. McClure (Kotik & McClure Law)
Attorney for Appellee: Stefanie S. Flodman (Johnson, Flodman, Guenzel, &Widger
Civil/Juvenile: Modification of Dissolution Decree and Termination of Parental Rights
Action Taken by the Trial Court: After trial, the juvenile court dismissed Appellant’s complaint to modify the decree and for termination of Appellee’s parental rights. The court found that no material change in circumstances had occurred to justify modification and that termination of Appellee’s parental rights would not be in the best interests of the child at this time. The court also dismissed without prejudice a pending order to show cause arising from contempt proceedings initiated by Appellant and overruled Appellant’s motions for sanctions and attorney fees.
Assignments of Error on Appeal: Appellant assigns that the district court erred in (1) finding there was no material change in circumstances, (2) not analyzing the ground for termination and best interests of the child, (3) not finding a that a statutory reason for termination existed, (4) not finding that termination was in the best interests of the child, (5) not modifying the current custody order, (6) vacating the pending order to show cause without finding that Appellee violated a court order, (7) overruling Appellant’s motion for sanctions, and (8) not awarding Appellant attorney fees.
Facts: The parties were married in September 2012. One child, A.K., was born of that marriage in 2013. Appellee has a history of mental health challenges and substance abuse dating back to at least 2002 as documented in prior juvenile court cases. Such challenges ultimately led to the severance, either by relinquishment or termination, of Appellee’s parental rights to six of her children between 2008 and 2011. Thus, by the time Appellee gave birth to A.K. she had a history of struggling as a parent.
Despite this history, the 4 years immediately after A.K.’s birth were, by all accounts, a reprieve from the conditions that had presented such difficulty in the years prior. Appellee’s mental health was under control, and she was described as a “wonderful” mother during those 4 years. However, a series of unfortunate events in 2017 precipitated a significant decline in Appellee’s mental health. The parties separated in 2018, and a decree of dissolution of marriage was entered in August 2019. Under that decree, the parties were awarded joint legal custody of A.K., and Appellant was awarded sole physical custody subject to the terms of a parenting plan incorporated into the decree. In light of Appellee’s challenging circumstances, she was granted only supervised parenting time until such time as she could demonstrate compliance with a detailed list of “safety provisions” outlined in the parenting plan.
Appellee has at all times failed to demonstrate compliance with the safety provisions and thus has not progressed beyond supervised visitation. Initially, Appellant agreed to personally supervise visits between Appellee and A.K., which visits occurred two to three times a week prior to July 2020. Appellant refused to continue supervising visits after an incident in July 2020, in which Appellee drove off with A.K. and maintained unauthorized physical custody of A.K. for 10 days. After that incident, in-person visitation between Appellee and A.K. ceased because the parties failed to agree on an alternate supervisor. Appellee and A.K. continued to communicate telephonically up to 6 times per week.
In August 2020, Appellant filed a complaint in the district court for Lancaster County, seeking modification of the August 2019 decree and termination of Appellee’s parental rights. Because Appellant sought termination of parental rights, the case was transferred to the separate juvenile court of Lancaster County, and the matter proceeded to trial. Appellant raised the issues of termination and modification in the alternative, arguing first that Appellee’s parental rights should be terminated in accordance with the Nebraska Juvenile Code. In the event Appellee’s parental rights were not terminated, Appellant argued that there had nevertheless been a material change in circumstances warranting modification of the 2019 decree and parenting plan to further limit Appellee’s parenting time. In support of his requests, Appellant pointed to the decline in Appellee’s mental health, Appellee’s inability to demonstrate compliance with the safety provisions, and Appellee’s “escalating criminal behaviors.”
After trial, the court denied both of Appellant’s requests. The court acknowledged Appellant’s concerns regarding Appellee’s mental health and troubling behavior, but the court ultimately found that there had not been a material change in circumstances justifying modification of the 2019 decree or termination of parental rights. With respect to termination of parental rights, the court found that “the restrictions outlined in the Parenting Plan provide the necessary protections for [A.K.] such that the drastic step of terminating parental rights is unnecessary at this time and not in [A.K.’s] best interests.” With respect to modification of the 2019 decree, the court found that Appellee’s “current situation does not establish a material change in circumstances, as her overall life situation appears to be the very facts upon which the restrictive Parenting Plan was developed at the time of the 2019 dissolution proceeding.” Accordingly, the court dismissed Appellant’s complaint for modification and for termination of parental rights. The court further dismissed without prejudice a pending order to show cause and overruled Appellant’s motions for sanctions and attorney fees.
On appeal, Appellant requests this court to reverse the order of the juvenile court in multiple respects. With respect to termination of parental rights, Appellant argues that the court failed to properly analyze that issue and that Appellee’s parental right should have been terminated. With respect to modification, Appellant argues that the evidence demonstrated a material change in circumstances justifying modification of the 2019 decree and parenting plan to further limit Appellee’s parenting time. Appellant also argues that the juvenile court erred in dismissing a pending order to show cause and overruling his motions for sanctions and attorney fees. Appellee, on the other hand, argues that the juvenile court’s order was correct and should be affirmed in all respects.