Opinion
No. A-12-162
12-04-2012
DUSTIN STAMM, APPELLANT, v. CANDICE D. RICE, APPELLEE.
Maurice A. Green, of Green Law Offices, P.C., for appellant. Tawna Holmstedt, of Zeilinger Law Office, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Dundy County: DAVID URBOM, Judge. Affirmed.
Maurice A. Green, of Green Law Offices, P.C., for appellant.
Tawna Holmstedt, of Zeilinger Law Office, for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
INBODY, Chief Judge.
INTRODUCTION
Dustin Stamm appeals the decision of the Dundy County District Court awarding custody of the parties' minor children to Candice D. Rice.
STATEMENT OF FACTS
The parties, who have never been married, are the biological parents of two minor children: Alyssa Dawn Stamm (Alyssa), born in 2008, and Dustin D. Stamm (D.J.), born in 2010. The parties were in a 4- to 5-year relationship prior to their separation.
In December 2010, Stamm filed a complaint alleging that the minor children were currently in his care and requesting that he be granted temporary and permanent custody. He was granted temporary custody of the minor children, and Rice was granted visitation. Rice was ordered to pay temporary child support of $50 per month. In January 2011, an order was entered continuing temporary custody of the minor children with Stamm.
Subsequently, in April 2011, another order was entered wherein the district court noted that it was "very concerned about the behavior of both parents" and found that it was in the best interests of the children that they be placed in the temporary legal care, custody, and control of the court and in the temporary physical custody of their paternal grandmother, Angie Stamm (Angie). Some of the behavior about which the court expressed concern included Stamm's incarceration and pending charges for sexual assault of a minor which resulted in Alyssa's and D.J.'s residing with Angie since March 2011; Rice's not visiting the children during March; Rice's residing in a transition home in Hastings, Nebraska; and affidavits containing numerous statements regarding Rice's alcohol abuse and inability to properly care for the children. Both Stamm and Rice were granted reasonable visitation, and both were ordered to pay temporary child support of $50 per month to Angie.
In May 2011, Rice filed a motion to modify the temporary order requesting that the court enter a specific visitation schedule because Angie had refused her visitation. She amended this motion in June 2011 to request custody of the minor children alleging that there were material changes of circumstances including that she had obtained employment, that she had obtained her own residence, and that Angie was not acting in the children's best interests. The motion to change custody was denied in July 2011. Trial in this matter was held on Stamm's original complaint on February 1, 2012.
Father.
At the time of trial, Stamm was 28 years old and residing in Logan, Kansas, with his fiance. He was currently employed full time at a co-op, earning $10.75 per hour; however, he did not anticipate maintaining that employment because he had accepted a full-time position as a corrections officer at a correctional facility where he would earn $13 per hour with the job set to begin shortly after conclusion of the trial. Stamm admitted that during the time pending trial, he was charged with sexual assault of a minor, but the charge was dropped; however, Stamm did admit to sexually assaulting a 15-year-old girl. He also admitted that he had been "diagnosed with bipolar" and is on medication which has helped with his mood swings.
Both Stamm and Rice testified that during their time together, Rice was the children's primary caregiver and was the person who was principally responsible for cooking, bathing, feeding, dressing, reading to, and playing with the children. However, Stamm testified that from his experience and observations, he did not believe that Rice is capable of caring for the minor children due to circumstances such as her being passed out while caring for the children, her lack of housekeeping abilities, and her inability to take care of the children's hygiene.
There was also evidence presented regarding specific instances of questionable conduct by Rice when she was providing care for her children or the children of other people. Jeremiah Unger testified to an incident in March 2011 when Rice was taking care of Unger's four children at the Unger home. When he arrived at his home at 5 p.m., the children were "going crazy around the house." Rice was sitting on the couch in her bra. As Unger visually inspected the house, he noticed that the refrigerator had been pulled out from the wall, there was a puddle of liquid on the floor in front of the refrigerator, there was a cooked pizza and an uncooked pizza sitting on top of the stove in the kitchen, there were a pair of female panties lying on the kitchen floor in front of the dishwasher, and there was liquid laundry detergent all over the laundry room floor. When Unger asked Rice for an explanation, she said that she was hungry and did not know how to work the stove. However, she did not respond to inquiries about the liquid on the floor in front of the refrigerator and did not respond to inquiries about the panties lying in front of the dishwasher, other than to admit that they were hers. Unger testified that Rice appeared to be either intoxicated or on drugs and stated that the house was not in the condition that he had left it. With regard to the puddle of liquid in front of the refrigerator, Unger's wife testified that her son told her that Rice was "'holding onto the [refrigerator] and she peed her pants.'" Rice denied that she was drunk at the Unger home, denied taking off her shirt, and denied "pee[ing] on the [kitchen] floor."
Unger testified to another incident that occurred in the spring of 2010, when he and Stamm went to Stamm's home at approximately 5:30 p.m. When they got to Stamm's home, Rice was on the couch, D.J. was in a bouncer and was screaming, and Alyssa was in her room screaming. When Stamm checked on Alyssa, he found that she had removed her diaper and that there were "feces all over [her] room." When Stamm attempted to wake Rice by shaking her, she was nonresponsive. Stamm was finally able to wake Rice by placing ice on her bare skin in the middle of her back. When Rice did wake, she was wobbly, was loud and obnoxious, and appeared intoxicated, even though she did not smell of alcohol and there was no alcohol in the house.
Stamm testified that he is not currently in a position to take the children, and he requested sole legal custody of the minor children with physical custody to be placed with his parents. Stamm testified that his present home did not have the physical space to accommodate the children and that he did not have a babysitter for when he was at work. He stated that his goal was to move back to Nebraska so the minor children would be around their family.
Stamm stated that the children have lived with his parents since March 2011; that the children have received very good care and are happy, are adjusted, and have a set schedule; and that it would be in their best interests to continue to physically reside with his parents. He testified that he was satisfied and pleased with the way the children were growing and developing in his parents' care. Stamm stated that he talks to the children at least once per week. He was ordered to pay child support, and he testified that he is current on those payments.
Mother.
Rice testified that at the time of trial, she was 26 years old, and that since June 2011, she has resided in an apartment in Hastings. She has been employed full time for 10 months, earning $11.16 per hour.
The evidence established that Stamm and Rice had a mutually physically abusive relationship. Evidence was presented of physical altercations, including the parties shoving each other; Stamm pushing Rice down, choking her, grabbing her hair, throwing her into a wall, and threatening to shoot her; and Rice "head butt[ing Stamm] in the face." During her relationship with Stamm, Rice stayed at shelters in Ogallala, McCook, and North Platte, Nebraska. Following the stay at the North Platte shelter, Rice voluntarily admitted herself into a hospital for 6 days after taking some pills, although she denies that she was being treated for an overdose.
While at the North Platte homeless shelter, she met her fiance, Chad Lapum, who was also living at the homeless shelter. Rice testified that she was aware that Lapum had been charged with strangulation and third degree assault, in which she was the victim, as well as with possession of marijuana and possession of drug paraphernalia, but she thought that those charges had been dropped. She was also aware that Lapum had been charged with driving under the influence and possession of an open container. However, Rice was unaware that Lapum had additionally been charged with possession of marijuana, possession of drug paraphernalia, shoplifting, possession of an open container, and strangulation involving a woman in Harlan County, Nebraska, who had a protection order against Lapum. Although Rice testified that she resides alone in her apartment and that Lapum has never lived with her, she also testified that she was aware that the court and legal system has her apartment designated as Lapum's address for his contacts through the legal system.
In addition to the two children in this case, Rice is also the mother of three other children. The oldest, a daughter who was 7 years old at the time of the trial, has lived with Rice's mother in Oklahoma since she was 6 months old, and Rice's mother obtained legal custody of the child when she was about a year old. Rice has not been ordered to pay child support for that child. She remains married to the child's father and claims that she has not divorced him because every time she locates him, he moves, so she is unable to divorce him. Rice also has twin boys, born in April 2006, who live with their father in Oklahoma. Although she has been ordered to pay child support for these children, she is "[v]ery far" behind on those payments and was cited for contempt of court for nonpayment of child support in December 2008. Rice was also ordered to pay child support in this case; she claimed that she did make some child support payments but had not paid any support recently and was not current on her obligation. Angie testified that Rice has paid $60 in child support since the children have resided with her. Rice said she attempted to buy clothes and other necessities for the children, but Angie would not accept them.
Although both Rice and her mother describe Rice as a "drug addict," Rice stated that she has been to treatment and she is "not a using one." She testified that she has never had a problem with alcohol and that the last time she used any type of drug was about a year prior to trial. Rice testified that she felt that she was capable of providing a stable living environment for her children because she has worked hard to provide the necessities for her children: she has a stable job, has a nice apartment, and has made arrangements with a daycare for when she has the children. Rice testified that she has turned her life around and that it would be in the children's best interests to be placed in her custody because
[t]hey're my kids . . . we love each other. I've always taken care of them. . . . I've done everything I can . . . to have a stable home for them and to be able to take care of them. They mean the world to me and I think I do to them too.
Rice's mother testified that to her knowledge, Rice was not still using drugs, has grown up in the last few years as far as her ability as a mother to take care of her children, and is capable of caring for her children. Rice's mother testified that when Rice had Alyssa and D.J., "she had them because she wanted children and she bonded to the children, she took care of them, she loved them, she held them, she sang to them, she read to them, she was their mom." She further testified that Rice always kept her houses clean and that she cared for the children, feeding them, giving them baths every night, and dressing them in clean clothes. Rice's mother testified that it is in the children's best interests for Rice to have custody of them because she loves the children, cares for them, properly provides food and clothing for them, bathes them, and properly disciplines them.
Paternal Grandparents.
Angie, the children's paternal grandmother, testified that the minor children have resided with her and her husband, Russell Stamm, since April 2011. Angie testified that when she took D.J. in to get his 12-month shots, she learned that he had not had his 6-month shots; additionally, when Angie was able to get access to Alyssa's medical records from Oklahoma, the doctors discovered that Alyssa was missing five shots that she could still have. Additionally, there were shots that the children never received because they aged out of them. Angie testified that both children are now current on their immunizations.
Angie admitted that she and Rice do not have a good relationship. Angie attributes that to several factors, including Rice not properly caring for the children; the way that Rice speaks to Angie; Rice's threats regarding Angie's being able to see the children; and Angie's suspicions that Rice had stolen money, liquor, and painkillers from Angie's residence. Angie stated that Rice did not keep her home very clean when Rice and Stamm lived together, that the children had diaper rash and "cradle cap," and that the skin behind Alyssa's ears "would be cracked and . . . would bleed."
Stamm visits the children an average of once or twice a month and calls about once per week. Angie testified that Stamm and the children have a "really good" relationship, that he is kind to them, and that the children miss him and ask where he is.
Rice testified that she generally sees her children about once per month, which is "[n]ot nearly as much as [she would] like," and that she tries to call them at least once per week. She states that the children are very excited to see her, give her a big hug, and try to take all her attention during the visits. Rice testified that it is difficult for her to see the children on a regular basis, because the children were 3½ hours away; she was concerned about the wear and tear on her vehicle, which was a 2000 or older model year; and it was difficult for her to afford the cost of gas for the trip.
Angie testified that she created a call log from which she calculated that from November 1, 2011, until January 31, 2012, Rice had the opportunity to call the children approximately 32 times and actually did call, or tried to call, approximately 8 times. Although there was an established schedule for Rice to call the children, there were times that Rice called outside the scheduled timeframe and Angie would not answer the call because answering the call would have disrupted the children's dinner or she was reading the children their bedtime story. Angie testified that she never denied any telephone visitations to Rice when Rice called during the scheduled times; however, she did deny the calls when they were not within the designated timeframe because the calls upset Alyssa; Alyssa would be "bawling" when the calls with Rice ended; and she could not tell Angie why or what had happened. Angie also kept a log of Rice's physical visitations with the children from June 5, 2011, until the time of trial. Rice kept 8 visits and missed 10 visits, and on a few of the visits, she left early for work purposes. On the occasions when Rice did not exercise her visitation with the children, she notified Angie only once or twice that she would not be coming. Rice stated that she did not always call to say that she would not be coming to visit the children because Angie had brought her to court for harassment so she tries to have as little contact with her as possible.
According to Angie, after calls or physical visitations with Rice, Alyssa would want Russell, her grandfather, to sit with her until she fell asleep and would want to know if the family dog was outside to protect everyone in the house. Russell observed that whenever Rice visited, Alyssa would become nervous and fidgety and would struggle to go to sleep, would wake two or three times during the night, and would sometimes wake up screaming. Although Angie testified that she never denied Rice visitation, Rice testified that Angie would interfere with her visits by taking the children out of her arms and by allowing her into only the dining room and living room area of the house and the gated area of the yard. Angie explained that Rice was allowed in only certain areas of the house because she and Russell wanted the children to continue to feel safe in the house. Despite the conflict between the parties, Rice testified that Angie agreed to modify Rice's visitation to allow her to see the children in the morning rather than the afternoon due to the children's nap schedules.
In addition to Angie's and Stamm's testimony, there was testimony from several other witnesses regarding how the children are thriving in Angie's and Russell's care. One witness testified that prior to March 2011, the children wore dirty clothes, had not been bathed often, and had "bad sores" on the back of their ears. However, since the children have been staying with Angie and Russell, she said that the children "look good"; they appear well cared for, well fed, clean, and disciplined; and "they are in an environment that is [both] loving and structured." She also testified that Angie and Russell's home is "very clean and in good shape for raising children." Another witness testified that since the children have been living with Angie, "[t]hey're always clean, they have no sores, [and] they smell good." She said the children act differently because now they are always smiling and are full of hugs and they look healthier. Unger's wife testified that she has babysat the children two times since they have been in Angie's care and that the children seem to be in very good spirits, they run and play and like to have fun, and when Angie and Russell come to pick them up, they are excited to see them again. Rice testified that she believes the children are safe with Angie and Russell; however, she feels the children should be raised by a parent.
Angie testified that, in her opinion, Rice was not capable of providing for the children's needs, that Stamm is not currently capable of providing the necessary care for the children, and that it is in the children's best interests to continue to reside with her. The children have routines in place, and both children refer to Angie and Russell's house as their "home."
In February 2012, the district court, relying on the parental preference principle, found that it was in the minor children's best interests to be placed in Rice's custody. The court noted that although the witnesses, without exception, testified that the children have been healthier, cleaner, and happier since they have been in Angie's and Russell's care, pursuant to the parental preference principle, a parent's natural right to the custody of his or her children trumps the interest of strangers to the parent-child relationship. The court further noted that Stamm testified that he was not in a position to take the children at that time and wanted physical custody of the children placed with his parents. Stamm has timely appealed to this court.
ASSIGNMENT OF ERROR
Stamm contends that the district court erred in awarding custody of the parties' minor children to Rice. Specifically, Stamm contends that the court erred in giving sole weight to the parental preference principle, in failing to find that Rice is an unfit parent, and in placing custody of the minor children with Rice, which is not in the minor children's best interests.
STANDARD OF REVIEW
In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion. Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012). In such de novo review, when the evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011); Citta v. Facka, 19 Neb. App. 736, 812 N.W.2d 917 (2012).
ANALYSIS
Stamm contends that the district court erred in awarding custody of the parties' minor children to Rice. Specifically, Stamm contends that the court erred in giving sole weight to the parental preference principle, in failing to find that Rice is an unfit parent, and in placing custody of the minor children with Rice, which is not in the minor children's best interests.
Under the parental preference principle, a parent's natural right to the custody of his or her children trumps the interest of strangers to the parent-child relationship and the preferences of the child. Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (2008). Although the question present in every child custody case is the best interests of the child, a court cannot overlook or disregard that the best interests standard is subject to the overriding recognition that the relationship between parent and child is constitutionally protected. Id. Absent circumstances which terminate a parent's constitutionally protected right to care for his or her child, due regard for that right requires that a biological or adoptive parent be presumptively regarded as the proper guardian for his or her child. Id.
Courts may not properly deprive a parent of the custody of a 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. Parental unfitness means a personal deficiency or incapacity which has prevented, or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child's well-being. Id.
Stamm does not argue that the parental preference principle should be overturned; rather, he contends that the principle was not properly applied under the particular facts present in the instant case. He argues that the facts present in this case exist for a finding that Rice is an unfit parent incapable of properly providing for the minor children and that thus, the parental preference principle should not be applied. Stamm argues the evidence established that Rice
is a drug addict, has been in and out of homeless shelters, is abusive toward others, has not provided support for any of her children, did not exercise her parenting time rights nor her telephone privileges with the Stamm children pending trial, did not confirm or formally cancel any visits and, at best, demonstrated extremely poor judgement [sic] in the care of other children.Brief for appellant at 17. He further argues that Rice's current personal relationship demonstrates poor judgment and her inability to protect herself as evidenced by the felony strangulation charges against her fiance of which Rice was the victim.
Despite these negative assessments of Rice's abilities as a parent, Stamm concedes that he is not currently in a position to take custody of his children. At the time of the trial, he was residing in a home that did not have the physical space to accommodate the children and he did not have childcare for them when he was working. Stamm argued that he be granted legal custody of the minor children and that physical custody be placed with Angie and Russell.
However, a parent's superior right to the custody of his or her child recognizes that parents and their children have a unique and legal interest in, and a constitutionally protected right to, companionship and care. Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (2008). Consequently, the parent-child relationship will be protected, absent parental unfitness. Id. Furthermore, the fact that someone outside the immediate family relationship may be able to provide greater or better financial care or assistance for a child than can a parent is an insufficient basis to deprive a parent of the right to child custody. Id.
The evidence was undisputed that the children are being well-cared for by Angie and Russell. We agree with the district court's finding that "[w]ithout exception, witnesses testified that the children, since April, 2011, have been healthier, cleaner and happier." However, this is insufficient to overcome the superior rights of a biological parent. Courts apply the parental preference principle "'because the best interests standard, taken to its logical conclusion, would place the minor children of all but the "worthiest" members of society in jeopardy of a custody challenge.'" Farnsworth v. Farnsworth, 276 Neb. at 660, 756 N.W.2d at 528. Although Angie and Russell have taken very good care of Alyssa and D.J., they are not the minor children's biological parents.
Rice is the minor children's biological mother. Despite her past shortcomings, she has made substantial efforts recently to put herself in a position to parent Alyssa and D.J. She has a full-time job, has an apartment, has made childcare arrangements for the children, and acknowledges her past drug use and has sought to overcome it. "'"'The law does not require perfection of a parent.'"'" In re Interest of Lakota Z. & Jacob H., 282 Neb. 584, 595, 804 N.W.2d 174, 183 (2011) (although Nebraska Supreme Court stated it shared county court's concerns regarding father's shortcomings as parent, Supreme Court found that county court correctly applied parental preference principle and, in absence of clear and convincing evidence that father was unfit parent, county court correctly terminated guardianship of minor children). Instead, we should look for the parent's continued improvement in parenting skills and a beneficial relationship between parent and child. In re Interest of Crystal C., 12 Neb. App. 458, 676 N.W.2d 378 (2004) (in context of termination of parental rights). Acknowledging that the evidence adduced showed that both Stamm and Rice have room for improvement in parenting, we rely on the fact that the district court heard the evidence and was able to observe the witnesses. Although there may be concerns regarding Rice's shortcomings as a parent, these shortcomings do not rise to the level of parental unfitness. Given all of the evidence presented and given the dictates of the parental preference principle, we conclude that the district court did not abuse its discretion in finding that it is in the minor children's best interests to grant custody to Rice. Therefore, the order of the district court is affirmed.
AFFIRMED.