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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.

Cite as 310 Neb. 638

State of Nebraska on behalf of Daphnie F., 

a minor child, appellee, v. Christina C., 

third-party plaintiff, appellant, and 

Mary and Tim Soppe, third-party 

defendants, appellees.

___ N.W.2d ___

Filed December 23, 2021. No. S-21-043.

1. Modification of Decree: Child Custody: Visitation: Child Support: 

Appeal and Error. Modification of a judgment or decree relating to 

child custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, 

and will be affirmed absent an abuse of discretion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when 

a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

3. Child Custody: Parent and Child: Presumptions. The parental preference principle establishes a rebuttable presumption that a child’s best 

interests are served by placing custody of a child with a parent.

4. Child Custody: Parental Rights: Proof. Under the parental preference 

principle, absent proof that a parent is unfit or has forfeited the right to 

custody, a parent may not be deprived of the custody of a minor child.

5. Child Custody: Parental Rights. While the best interests of the child 

remain the lodestar of child custody disputes, a parent’s superior right to 

custody must be given its due regard, and absent its negation, a parent 

retains the right to custody over his or her child.

6. Parental Rights: Proof. For exceptional circumstances to rebut the 

parental preference principle, there must be proof of serious physical or 

psychological harm or substantial likelihood of such harm.

7. Modification of Decree: Parent and Child. The parental preference 

principle applies when modifying custody rights as between a natural 

or adoptive parent and one who stands in loco parentis. When a trial 

Nebraska Supreme Court Online Library

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03/18/2022 01:09 AM CDT
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.

Cite as 310 Neb. 638

court reaches the issue of modification, whether the in loco parentis 

relationship has changed is relevant to determining both whether there 

has been a material change in circumstances and whether modification 

is in the child’s best interests.

Appeal from the District Court for Washington County: 

John E. Samson, Judge. Reversed and remanded for further 

proceedings.

Avis R. Andrews for appellant.

Megan E. Shupe, of Reagan, Melton & Delaney, L.L.P., for 

appellees Mary and Tim Soppe.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Christina C. appeals the order of the district court for 

Washington County that denied her application to modify child 

custody of her daughter, Daphnie F. Pursuant to a Colorado 

custody order, Daphnie was placed in the “permanent, legal 

and physical custody” of her paternal grandparents, Mary and 

Tim Soppe. Christina moved to modify on the grounds that 

she was a fit biological parent who has a right to custody of 

her child superior to that of the child’s paternal grandparents 

standing in loco parentis. The district court found that it was 

in Daphnie’s best interests to remain with the Soppes, and 

Christina appeals. Because the district court’s order was issued 

after our opinion in State on behalf of Tina K. v. Adam B., 307 

Neb. 1, 948 N.W.2d 182 (2020), and did not follow the framework therein, we reverse, and remand for further proceedings 

for reconsideration under the standard in State on behalf of 

Tina K., supra.

STATEMENT OF FACTS

Daphnie was born in 2014. Until January 2016, she lived primarily with her mother, Christina, in Colorado. The Colorado 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.

Cite as 310 Neb. 638

Department of Health and Human Services was involved with 

the family in 2015, and during two periods, Daphnie was 

removed from her parents’ custody and placed in foster care. 

In July 2016, the Colorado Department of Health and Human 

Services placed Daphnie with her paternal grandparents, 

the Soppes, who lived in Washington County, Nebraska. 

Subsequently, Christina moved from Colorado to Nebraska. 

On January 17, 2017, the “Phillips County Combined Courts” 

of Phillips County, Colorado, entered an “Order to Approve 

Recommendations and Permanency Plan” (hereinafter the 

Colorado Custody Order), which awarded permanent legal and 

physical custody of Daphnie to the Soppes.

In 2019, the State of Nebraska successfully sought an 

order of child support, requiring both Christina and Daphnie’s 

biological father to pay monthly support to Mary, commencing on January 1, 2020. The father did not appear in these 

proceedings.

On February 13, 2020, Christina filed an application in 

Washington County District Court to modify child custody. 

The Colorado Custody Order was registered, and Christina and 

the Soppes stipulated that Nebraska was the home state of the 

minor child. On August 27, the Washington County District 

Court held an evidentiary hearing on jurisdiction under the 

Uniform Child Custody Jurisdiction and Enforcement Act, Neb. 

Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016 & Cum. Supp. 

2020). The court found that it had jurisdiction over the custody order under the Uniform Child Custody Jurisdiction and 

Enforcement Act and that Nebraska law regarding modification 

of a previous custody order was applicable going forward.

Trial was held on October 1, 2020, on Christina’s application to modify child custody. Evidence centered on Christina’s 

history of substance use. Christina was incarcerated in 

Colorado around the time Daphnie was initially removed from 

her home in January 2016. Christina testified that she was 

“falsely arrested” and put in jail, but ultimately pled guilty to 

a charge of assault and was placed on 2 years’ probation. She 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.

Cite as 310 Neb. 638

was released in December 2016 and was placed on criminal 

probation in Colorado. Shortly thereafter, Christina moved 

to Nebraska to be closer to Daphnie, and her probation was 

transferred to Nebraska. In August and September 2018, while 

on probation, Christina received two custodial sanctions of jail 

sentences for failing to attend a drug test and for failing a drug 

test. Christina testified that while on probation, she tested positive for alcohol and methamphetamine. Christina completed 

probation in February 2019.

Christina testified that at the time of trial, she was employed 

and staying in a home with her mother in Blair, Nebraska. 

She was exercising parenting time about 50 percent of the 

time by agreement. She takes medication to treat her bipolar 

disorder and post-traumatic stress disorder. She was not participating in ongoing drug treatment at the time of trial, but 

attended Alcoholics Anonymous, Narcotics Anonymous, or 

“Crystal Meth Anonymous” meetings approximately twice 

a month.

Christina testified that she continued to drink alcohol “[o]nly 

on special occasions” and “one or two with friends every now 

and then,” but denied any ongoing concerns about drug or 

alcohol use. She denied using any illegal drugs since her positive test in 2018. Christina’s mother testified that she had seen 

Christina drink alcohol and that Christina was not currently 

seeing her counselor. Christina’s friend testified that she previously lived with Christina from January 2019 to June 2020 

and that she also observed Christina drinking occasionally, but 

never around Daphnie. Christina’s mother testified she could 

recall only one time when she had seen Christina drink to 

excess in the last year.

The district court’s order emphasized that despite admitting 

to failing drug tests in the fall of 2018, Christina had filed a 

motion in Colorado regarding the parenting plan, in which she 

attached a sworn affidavit that stated: “I believe the modification is in the best interests of the child because: After the 

Dependency and Neglect case, I was on supervised probation 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.

Cite as 310 Neb. 638

for two years. I have been sober for over a year, and [I] only 

had two mishaps over the last three years.” The district court 

characterized the sworn affidavit as a misrepresentation of 

her sobriety.

The district court also noted “further concerns” about 

Christina’s drug use based on her treatment plan from services 

she received between November 8, 2018, and February 12, 

2019. The treatment and discharge summary plan listed diagnoses of severe alcohol use disorder, in early remission; severe 

“Amphetamine-type Substance Use Disorder,” in early remission; moderate “Bipolar I disorder, [c]urrent or most recent 

episode manic”; post-traumatic stress disorder; mild cannabis 

use disorder, in sustained remission; and mild cocaine use 

disorder, in sustained remission. The treatment plan recorded 

Christina’s “[d]ate of last use” as December 18, 2018.

Mary also testified at trial regarding Christina’s substance 

abuse and recovery. Mary testified that she wanted Daphnie to 

be reunified with Christina until Mary began noticing changes 

in Christina’s behavior in September 2019. Mary testified that 

Christina told her, “I haven’t used for a month,” and refused 

to take a drug test at that time. Mary confronted Christina at 

that time, and Christina told her she would return to treatment 

and counseling. The Soppes began to increase Christina’s parenting time with Daphnie to a roughly 50-50 schedule in the 

summer of 2020 by the parties’ agreement. By August 2020, 

Mary noticed that Christina exhibited angry behavior and 

that Daphnie was beginning to discuss “adult content” when 

she returned from Christina’s home. Mary testified that she 

obtained a counselor to assist Daphnie at this time, although 

Daphnie had only been in counseling for a few months at 

the time of trial. In its order, the district court emphasized 

Mary’s testimony stating that with Christina’s addictions “and 

what she needs to do to help herself could, in the long run, 

affect Daphnie.”

In its order, the district court observed that Christina 

had not alleged a material change in circumstances but 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.

Cite as 310 Neb. 638

generally requested custody because she is Daphnie’s biological mother. The district court found that the Soppes have an 

in loco parentis relationship with Daphnie. The district court 

found that the parental preference principle had been overcome 

because (1) the Colorado Custody Order placed Daphnie in the 

permanent custody of the Soppes “due to [Christina’s] deficient parenting issues,” (2) the Soppes have provided a stable 

and nurturing home for Daphnie since 2016, and (3) it was in 

Daphnie’s best interests to remain with the Soppes. The district 

court found that Christina’s recovery has “not surprisingly, 

taken time, and she has had her share of ups and downs.” It 

found that although “there has been improvement,” the best 

interests of Daphnie are clearly to have her care, custody, and 

control remain with the Soppes. The district court awarded 

Christina parenting time, conditioned on her sobriety, every 

Friday evening through Sunday evening, 2 weeks during the 

summer, and 6 hours on each of the major holidays named 

in the order. The district court denied Christina’s motion for 

new trial.

Christina appeals.

ASSIGNMENT OF ERROR

Christina assigns, summarized and restated, that the district court erred when it denied her application to modify 

child custody.

STANDARDS OF REVIEW

[1,2] Modification of a judgment or decree relating to child 

custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on 

the record, and will be affirmed absent an abuse of discretion. 

Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020). An 

abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if 

its action is clearly against justice or conscience, reason, and 

evidence. Id.
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.

Cite as 310 Neb. 638

ANALYSIS

Christina, the biological mother of Daphnie, claims that the 

district court erred when it denied her motion for modification 

by which she sought to change custody of Daphnie from the 

paternal grandparents serving in loco parentis, to herself. The 

district court’s denial was based on its reasoning that despite 

Christina’s progress, there had not been a substantial change 

in circumstances to warrant a modification. Because the district court failed to follow the framework we set in State on 

behalf of Tina K. v. Adam B., 307 Neb. 1, 948 N.W.2d 182 

(2020), we agree with Christina that reversal is warranted. We 

reverse, and remand for further proceedings as more fully set 

forth below.

The trial in this case was conducted on October 1, 2020, 

and the district court’s order was filed on December 4. State 

on behalf of Tina K., supra, was filed on September 4, and it 

clarified the framework by which the trial courts are to proceed 

where, as here, a natural or adoptive parent seeks to change 

custody to herself or himself from parties with custody who 

stand in loco parentis of the child. The principles described in 

State on behalf of Tina K. were reiterated in Windham v. Kroll, 

supra, the latter of which was admittedly filed 1 week after the 

order on appeal.

[3-6] In State on behalf of Tina K., supra, in which a biological parent sought modification of custody of a child who 

had been living with a third party standing in loco parentis, 

we reiterated the primacy of parental preference. The parental 

preference principle establishes a rebuttable presumption that a 

child’s best interests are served by placing custody of a child 

with a parent. See id. Under the parental preference principle, 

absent proof that a parent is unfit or has forfeited the right 

to custody, a parent may not be deprived of the custody of a 

minor child. Id. While the best interests of the child remain 

the lodestar of child custody disputes, a parent’s superior right 

to custody must be given its due regard, and absent its negation, a parent retains the right to custody over his or her child. 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.

Cite as 310 Neb. 638

Id. Courts considering the best interests of the child give preference to a fit biological or adoptive parent’s superior right to 

custody, and this right may be defeated only in “exceptional” 

cases for the child’s best interests as we clarified in State on 

behalf of Tina K., supra. See Windham v. Griffin, 295 Neb. 

279, 887 N.W.2d 710 (2016). In State on behalf of Tina K., 

supra, we explained that for exceptional circumstances to rebut 

the parental preference principle, there must be proof of serious physical or psychological harm or substantial likelihood of 

such harm. These principles apply in cases where a parent and 

those standing in loco parentis seek custody, as well as cases 

seeking to modify child custody, such as the instant case.

[7] With respect to the modification circumstance, in 

Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020), we 

reiterated that the parental preference principle applies when 

modifying custody rights as between a natural or adoptive parent and one who stands in loco parentis. When a trial court 

reaches the issue of modification, whether the in loco parentis relationship has changed is relevant to determining both 

whether there has been a material change in circumstances and 

whether modification is in the child’s best interests. Id.

Although the parties agree that the Soppes stand in loco 

parentis, the district court did not begin its analytical path in 

the manner prescribed in State on behalf of Tina K. v. Adam 

B., 307 Neb. 1, 948 N.W.2d 182 (2020), and Windham v. Kroll, 

supra. It did not determine whether Christina was a fit parent 

to Daphnie or whether she had forfeited her parental rights. 

If Christina was a fit parent who had not forfeited parental 

rights, the district court did not determine whether there were 

exceptional circumstances, i.e., proof of serious physical or 

psychological harm or substantial likelihood of such harm, 

which would allow the best interests of Daphnie to negate the 

parental preference principle.

In its order, the district court expressed concerns about 

Daphnie’s best interests based on its credibility determinations of the parties and found that the parental preference 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE ON BEHALF OF DAPHNIE F. v. CHRISTINA C.

Cite as 310 Neb. 638

was negated. The district court’s findings and reasoning were 

not sufficient under the correct standard set forth in State on 

behalf of Tina K., supra, and later reiterated in Windham v. 

Kroll, supra. Because the district court did not apply the correct standard, we determine that for this reason, it abused its 

discretion, and accordingly, we reverse, and remand for further 

proceedings.

CONCLUSION

The district court did not make findings in the manner prescribed by State on behalf of Tina K., supra. Accordingly, we 

reverse, and remand for further proceedings for reconsideration under the standard in State on behalf of Tina K., supra. 

We leave to the district court’s discretion whether to allow for 

expansion of the existing record.

Reversed and remanded for 

further proceedings.