SUMMARY: Without an affirmative showing that the father was unfit, the court should have followed the parental preference doctrine and placed the child with him.
Corbin, DOB 8/05, was removed from the mother, Ivy, after she allegedly assisted in burglarizing houses in Corbin’s presence. The court issued an ex parte order approving the removal on January 12, 2012. On January 18, 2012, the father, Bryan, filed a motion to change placement/custody to him. On September 19, 2007, Ivy was given care and custody of Corbin and Corbin had lived with her since that time and had a close relationship with Ivy’s mother, Maletta. Bryan was stationed in New York and was re-married with a youth child. Bryan visited in person 2-3 times per year but Corbin frequently visited Bryan’s parents. Many affidavits were filed alleging misconduct on both sides, including harsh discipline and physical assault. Records of Ivy’s psychiatric issues were also submitted, which showed she had been admitted to a psychiatric unit on at least 3 occasions and had substance abuse issues. There was also evidence submitted as to Corbin’s special needs and the trauma he suffered as a result of the removal. After a hearing, on February 27, 2012, the court overruled Bryan’s motion for change of placement/custody, noting that it considered the parental preference doctrine and stating that DHHS did have the authority to place Corbin with Bryan. Bryan appealed. On June 26, 2012, the court did order Corbin to be placed with Bryan.
The Nebraska Court of Appeals reversed the February 27th order even though it found the issue of placement with Bryan moot. It noted the ruling under In re Interest of Stephanie H. et al., 10 Neb. App. 908, 639 N.W.2d 668, 679 (2002) that requires an affirmative showing of parental unfitness for a court to deprive a parent of custody. In this case, neither the State nor DHHS made allegations of unfitness against Bryan. The Court of Appeals reviewed the affidavits and found that those of Bryan, his wife and his mother were more credible than those of Ivy and her mother. It concluded that there was no affirmative showing of unfitness and the court should have placed Corbin with Bryan in the February 27th order.