- 1 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

State of Nebraska on behalf of Tina K., as 

mother and next friend of Destiny B., a minor 

child, appellee, v. Adam B., third-party 

plaintiff, appellee, Tina K., third-party 

defendant, appellant, and Jo K., 

intervenor-appellee.

___ N.W.2d ___

Filed September 4, 2020. No. S-19-448.

1. Constitutional Law: Parental Rights. Parents have a fundamental right 

to make decisions concerning the care, custody, and control of their children that is constitutionally protected.

2. Constitutional Law: Parent and Child. Establishment and continuance 

of the parent-child relationship is the most fundamental right a child 

possesses to be equated in importance with personal liberty and the most 

basic constitutional rights.

3. Child Custody: Parent and Child: Presumptions. The parental preference principle establishes a rebuttable presumption that the best interests 

of the child are served by placing custody of a minor child with his or 

her 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. Parent and Child: Words and Phrases. Parental unfitness means a 

personal deficiency or incapacity that has prevented, or will probably 

prevent, performance of a reasonable parental obligation in child rearing and that has caused, or probably will result in, detriment to a child’s 

well-being.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/01/2020 12:08 AM CDT
- 2 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

7. Parent and Child: Evidence. Evidence of parental unfitness should be 

focused upon a parent’s ability to care for a child, and not any other 

moral failings a parent may have. Evidence of a parent’s past failings is 

pertinent only insofar as it suggests present or future faults.

8. Parental Rights. Parental rights may be forfeited by substantial, continuous, and repeated neglect of a child and a failure to discharge the 

duties of parental care and protection.

9. Child Custody: Parental Rights: Proof. Clear and convincing evidence of substantial, continuous, and repeated neglect of a child must be 

shown in order to overcome the parent’s superior right.

10. Child Custody: Parental Rights. Allowing a third party to take custody, even for a significant period of time, is not the equivalent to forfeiting parental preference.

11. Parent and Child. In loco parentis status is not equivalent to status as 

a parent.

12. ____. In loco parentis status does not entitle a person to all the same 

rights that a legal parent would enjoy.

13. ____. In loco parentis status does not, by itself, eclipse the superior 

nature of the parental preference accorded to biological or adoptive 

parentage.

14. Parental Rights: Proof. In order for exceptional circumstances to 

negate the parental preference principle, there must be proof of serious 

physical or psychological harm to the child or a substantial likelihood of 

such harm.

Appeal from the District Court for Lancaster County: 

Jodi L. Nelson, Judge. Reversed and remanded for further 

proceedings.

Mary C. Byrd, of Byrd & Greve Law, L.L.C., for appellant.

Matthew P. Saathoff and Donald E. Loudner III, of Saathoff 

Law Group, P.C., L.L.O., for intervenor-appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

After finding a child’s mother to be a fit parent, the district 

court found that parental preference was negated based on the 

child’s best interests and awarded custody to an individual 
- 3 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

standing in loco parentis. We refine our standard for an exceptional case where a child’s best interests can negate the parental preference principle. Because the district court did not have 

the benefit of this articulation, we reverse, and remand for 

reconsideration under the proper standard.

BACKGROUND

Prior Proceedings

In 2006, the State filed a complaint to establish paternity 

and support of Destiny B., a child born in July 2003 to Tina K. 

and Adam B. In March 2006, the State obtained a default order 

against Adam.

In November 2007, Adam filed an application to modify the 

default order. He alleged that it did not determine Destiny’s custody and that a material change of circumstances had occurred 

because she was in Adam’s custody. The court entered an ex 

parte temporary custody order in favor of Adam. In February 

2008, the court entered an order, pursuant to Adam’s and Tina’s 

stipulation, which awarded Adam physical custody of Destiny 

and provided Tina with supervised visitation.

In October 2011, Tina filed a complaint to modify child custody. She alleged that Destiny had been with her for nearly a 

month while Adam was without a permanent residence. Adam 

consented to entry of a temporary order; thus, the court awarded 

Tina temporary custody of Destiny. In January 2013, the court 

dismissed Tina’s complaint for want of prosecution.

Current Proceeding

In January 2017, Tina filed a complaint to modify. She 

alleged that a material change of circumstances had occurred 

since the February 2008 order. Specifically, Tina alleged that 

Destiny had not lived with Adam since 2011, that Destiny lived 

exclusively with Tina from September 2011 to the beginning 

of 2014, and that Destiny had lived with Jo K., with frequent 

visitation by Tina, since 2015. Tina sought to be awarded sole 

physical custody.
- 4 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

In August 2017, after being allowed to intervene, Jo filed a 

complaint. Jo alleged that she was Destiny’s primary caretaker, 

that she stood in loco parentis over Destiny, and that Destiny 

had been in her custody since February 2014 with the consent 

of Adam and Tina and pursuant to valid temporary delegations 

of parental powers. Jo’s complaint did not specifically request 

custody of Destiny, but she sought to intervene in order to 

“seek relief regarding any other matter affecting or concerning 

the welfare and best interests of the minor child.”

Trial

In September 2018, a trial commenced on Tina’s complaint 

to modify and Jo’s complaint in intervention. At that time, 

Destiny was 15 years old.

Tina and Adam lived together for 7 to 8 months after 

Destiny’s birth. According to Tina, Adam then moved out of 

Tina’s apartment and Destiny remained with Tina until 2008. 

On the other hand, Adam testified that he was Destiny’s primary parent from her birth until 2010 and that Tina rarely 

spent time with Destiny when she was between the ages of 2 

and 10.

Adam testified that Tina used drugs before and after 

Destiny’s birth. He observed Tina to be under the influence 

of methamphetamine many times over a significant period 

of time. In 2008, when Destiny was almost 5 years old, Tina 

was convicted of attempted delivery of a controlled substance. 

Adam obtained custody of Destiny at that time. While Tina 

served her sentence, she did not see Destiny but mailed letters 

weekly to stay in touch.

According to Adam, Tina was Destiny’s primary parent from 

2010 to 2013. In September 2011, Tina and Destiny moved to 

Lincoln, Nebraska. Tina enrolled Destiny in school, located 

a doctor and dentist for her, and took care of all of Destiny’s 

needs. Destiny’s school records showed that she had a significant number of absences while attending school in Lincoln.

In early 2013, Tina was using and selling methamphetamine. 

Although Destiny was in Tina’s custody at the time, Destiny 
- 5 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

was not present when Tina was actively selling drugs. Tina 

stopped using and selling drugs in April, when she suspected 

she was pregnant.

Tina was convicted of attempted delivery of a controlled 

substance in connection with a March 2013 drug transaction. 

She began serving her sentence in February 2014 and planned 

for Destiny to remain with the father of Tina’s newborn child 

during her incarceration. However, Adam removed Destiny 

after approximately 3 weeks. He arranged for Destiny to live 

with Jo, an “old family friend” whom Tina had known for over 

25 years.

While incarcerated, Tina kept in communication with 

Destiny. Jo brought Destiny to the prison for visitation with 

Tina every other week. On a weekly basis, Tina wrote letters to 

Destiny and spoke on the telephone with her. Tina was incarcerated until November 2014 and then was on work release 

until January 2015.

Upon release, Tina recognized she lacked stability and therefore did not immediately seek Destiny’s return. Tina explained 

that she needed housing and money. And Tina acknowledged 

that Destiny was doing well in Jo’s care. But Tina testified that 

since her release in January 2015, she had seen Destiny four 

times a month, and that Destiny typically would spend the night 

with Tina every other weekend or every third weekend.

By June 2015, Tina had obtained employment and a residence. That summer, Tina told Jo that she wanted Destiny 

to live with Tina. According to Tina, Jo was receptive to 

the idea, as long as Tina was “working and everything was 

stable and [Tina] was on [her] feet.” But Tina was living in 

a one-bedroom apartment, and she wanted a larger residence 

so Destiny would have her own bedroom. In May 2016, Tina 

saved enough money for a two-bedroom apartment. In the 

summer, Tina again broached the subject with Jo of having 

Destiny back in Tina’s care. Jo responded that Tina “needed to 

do it legally.” Tina then saved money to hire attorneys. Tina 

believed that she was now a fit and stable parent who could 

provide for Destiny’s needs.
- 6 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

In the summer of 2017, Tina picked up Destiny and “just 

was going to keep her.” She informed Jo after the fact. That 

night, Jo and Adam went to Tina’s apartment to get Destiny. 

After that incident, Jo’s demeanor toward Tina changed. Jo did 

not want Tina to see Destiny and wanted visits to be supervised. Prior to being incarcerated, Tina had a close relationship 

with Jo. But Tina testified that at the time of trial, she had a 

strong dislike for Jo because “nobody asked Jo to step in when 

she wasn’t needed and take Destiny.”

With regard to parenting time with Destiny, Tina testified that sometimes she and Jo met, sometimes Tina picked 

up Destiny, and sometimes Tina had someone else pick up 

Destiny. Tina’s car was unreliable and did not have license 

plates. During trial, Tina bought a different car. She explained, 

“Well, it seemed like it would be a — a big deal that I didn’t 

have transportation; so I just wanted to make sure . . . I can 

provide transportation.”

Jo testified that she has “always been in [Destiny’s] life” 

and that her level of involvement increased as Destiny aged. 

Tina and Destiny lived with Jo from November 2013 until 

mid-February 2014. For the past 5 years, Jo made all of the 

decisions regarding Destiny’s upbringing, care, education, and 

medical treatment. Tina agreed that Jo has stood in loco parentis. Tina’s proposed parenting plan provided for visitation with 

Jo. She believed it would be in Destiny’s best interests to 

continue to have a relationship with Jo and supported such a 

relationship.

There was no dispute that Destiny is involved in activities 

in Gretna, Nebraska, where she lives with Jo, and that her life 

is established there. Jo testified that Destiny has many friends 

in the Gretna area and that she is well-bonded to a lot of her 

friends. Jo worried about stability and routine for Destiny if 

she returned to Lincoln.

Tina testified that she would change Destiny’s school if 

she obtained custody. Adam believed that Destiny wanted 

to graduate from high school in Gretna rather than change 

schools again. He explained that in Lincoln, Destiny “jumped 
- 7 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

from school to school to school,” but that now she has stability 

and “she needs to continue that stability until she’s an adult.” 

According to Adam, Destiny achieved placement on the honor 

roll within 6 months of being in the Gretna school system and 

had maintained that honor.

Adam did not want Tina to have custody of Destiny and 

wished to have Destiny continue being parented by Jo. Adam 

thought it would be traumatic to Destiny to uproot her.

In April 2014, Jo arranged for Destiny to have counseling 

with Joanie Hansen, a licensed independent mental health 

care practitioner. Hansen testified that she typically would see 

Destiny once a week, sometimes twice a week if Destiny had 

a weekend with Tina. When therapy began, Destiny was lying, 

stealing, and cheating. Destiny’s grades in school were poor, 

with some of them being failing, and she had difficulty concentrating. Destiny also was having angry outbursts. Hansen testified that Destiny was frustrated with her parents and had been 

acting out in frustration. With Jo, Destiny had a stable home, 

rules, and guidelines. Hansen observed positive changes over 

the 4 years she worked with Destiny. Destiny would no longer 

steal or lie, and her grades had improved.

Hansen testified that Destiny is a “people pleaser.” Destiny 

told Hansen that “she has to tell her mom that she wants to live 

[with Tina] or she’ll get yelled at, because any time she disagrees with her mom, her mom yells at her.” Within the month 

before trial, Destiny had told Hansen that she wanted to live in 

Gretna but Destiny was too scared to tell Tina. Hansen testified that Destiny had consistently said she wanted to live in 

Gretna with Jo, but on cross-examination, Hansen testified that 

Destiny wavered back and forth regarding where she wanted 

to live, which Hansen attributed to guilt. She explained that 

Destiny would say she wanted to live in Gretna but that doing 

so would upset Tina.

Hansen testified that Destiny would be frustrated and angry 

after spending a weekend with Tina and that it would take 

Destiny a couple of days to adjust. Hansen had observed 

Destiny to be more despondent, depressed, and agitated after 
- 8 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

a visit with Tina. On the other hand, when Destiny would 

have weeks without a weekend with Tina, Destiny would be 

stable and secure.

Hansen feared that the therapeutic relationship would be 

discontinued if Destiny moved to Lincoln and that such discontinuation would be detrimental to Destiny. Tina testified 

that she had the ability to transport Destiny to see Hansen on 

a regular basis and that “no matter what happens, I’d always 

like Destiny to continue care with her.” Hansen also believed it 

would be detrimental to move Destiny from the Gretna school 

system, because Destiny was well established and was in high 

school. She believed it was in Destiny’s best interests to remain 

in Gretna with Jo.

The parties agreed not to call Destiny as a witness, and Jo’s 

counsel offered into evidence Destiny’s deposition. Although 

we have considered Destiny’s testimony, we will not summarize the contents of the confidential deposition. The record 

shows that Destiny’s deposition was taken at Hansen’s office 

and that by stipulation, neither Jo nor Tina were to attend. 

But Hansen testified that Tina was “there” when Destiny 

arrived. According to Hansen, “they were kind of yelling in 

the parking lot.” Hansen could not hear what was said and 

had “no idea what they were talking about.” Hansen testified 

that Destiny was “uptight” at the beginning of the deposition, 

and Hansen was “not sure if that had to do with the parking 

lot encounter.”

Trial Court’s Decision

In April 2019, the court entered an extensive order of modification. It accepted Adam’s testimony that Destiny remained 

with him when he moved out of Tina’s residence while 

Destiny was an infant. The court noted two material changes 

in circumstances: Jo’s standing in loco parentis to Destiny and 

Adam’s admission that he was not in a position to be the custodial parent.

The court acknowledged the parental preference doctrine. 

The court stated that there was a presumption in favor of 
- 9 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

Adam or Tina over Jo “unless it is shown that the lawful parent is unfit or has forfeited his or her superior right or the 

preference is negated by a demonstration that the best interests 

of the child lie elsewhere.” (Emphasis in original.) The court 

reasoned that Adam had generally forfeited his superior right 

in favor of Jo.

The court determined that Tina was now a fit person to care 

for Destiny. The court recognized that Tina had attained more 

stability in her life. But the court stated that its paramount concern was Destiny’s best interests. The court found that “parental preference in favor of [Tina] is negated by the overwhelmingly clear and convincing evidence that Destiny’s best interest 

is for her to remain with [Jo].” The court described the situation as “one of those rare instances” when the best interests of 

a child defeat the parent’s preference. The court placed legal 

and physical custody with Jo, set parenting time for Adam and 

Tina, and determined child support.

Tina timely appealed, and we moved the case to our docket. 1

As authorized by court rule, we submitted the case without oral 

argument. 2

ASSIGNMENT OF ERROR

Tina assigns that the court abused its discretion by awarding 

custody to Jo rather than to Tina.

STANDARD OF REVIEW

Child custody determinations are matters initially entrusted 

to the discretion of the trial court, and although reviewed de 

novo on the record, the trial court’s determination will normally be affirmed absent an abuse of discretion. 3

ANALYSIS

[1-4] Parents have a fundamental right to make decisions 

concerning the care, custody, and control of their children 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

2 See Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2017).

3 Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81 (2019).
- 10 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

that is constitutionally protected. 4 Establishment and continuance of the parent-child relationship is the most fundamental 

right a child possesses to be equated in importance with personal liberty and the most basic constitutional rights. 5 In recognition of this important relationship, the parental preference 

principle establishes a rebuttable presumption that the best 

interests of the child are served by placing custody of a minor 

child with his or her parent. 6 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. 7

[5] 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. 8 In Windham 

v. Griffin,

 9 we touched on the relationship between the parental preference principle and the best interests standard. We 

stated, “While preference must be given to a biological or 

adoptive parent’s superior right to custody where the parent 

is not unfit and has not forfeited his or her parental rights, 

a court also considers the child’s best interests in making its 

custody determination.” 10 Significantly, we characterized cases 

where best interests of the child defeated parental preference as 

being “exceptional.” 11

[6,7] Turning to the instant case, we begin with consideration of Tina’s fitness as a parent. The district court found 

4 See Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 

(2000).

5 Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992).

6 In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 737 (2019).

7 Id.

8 In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004).

9 Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016).

10 Id. at 290, 887 N.W.2d at 718.

11 Id.
- 11 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

that she was a fit parent, and Jo does not challenge that finding. 

Parental unfitness means a personal deficiency or incapacity 

that has prevented, or will probably prevent, performance of 

a reasonable parental obligation in child rearing and that has 

caused, or probably will result in, detriment to a child’s wellbeing. 12 Evidence of parental unfitness should be focused upon 

a parent’s ability to care for a child, and not any other moral 

failings a parent may have. 13 Evidence of a parent’s past failings is pertinent only insofar as it suggests present or future 

faults. 14 The evidence showed that at the time of trial, Tina had 

a residence and employment, was not using or selling drugs, 

and was actively involved in Destiny’s life. Upon our de novo 

review, we agree with the court that Tina “is now a fit person 

to care for Destiny.”

[8-10] Next, we consider forfeiture. The district court did 

not explicitly make a finding as to whether Tina forfeited her 

superior right to custody, but implicit in its decision is that 

she did not. Parental rights may be forfeited by substantial, 

continuous, and repeated neglect of a child and a failure to 

discharge the duties of parental care and protection. 15 Clear 

and convincing evidence of such neglect must be shown in 

order to overcome the parent’s superior right. 16 And we have 

stated that allowing a third party to take custody, even for a 

significant period of time, is not the equivalent to forfeiting 

parental preference. 17 Under our jurisprudence, we agree that 

the evidence does not establish forfeiture by Tina of her parental preference.

12 In re Guardianship of K.R., supra note 6.

13 See In re Interest of Lakota Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 174 

(2011).

14 Id.

15 Windham v. Griffin, supra note 9.

16 See Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522 (2008).

17 See Windham v. Griffin, supra note 9.
- 12 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

[11-13] It is important to differentiate Jo’s status from Tina’s 

status as a biological parent. It is undisputed that Jo stood in 

loco parentis to Destiny. In loco parentis is a common-law doctrine that gives standing to a nonparent to exercise the rights of 

a natural parent when the evidence shows that the nonparent’s 

exercise of such rights is in the child’s best interests. 18 In order 

to stand in loco parentis, one must assume all obligations incident to the parental relationship. 19 But in loco parentis status 

is not equivalent to status as a parent. 20 Such status does not 

entitle a person to all the same rights that a legal parent would 

enjoy. 21 In loco parentis status does not, by itself, eclipse the 

superior nature of the parental preference accorded to biological or adoptive parentage. 22 We recently noted that Windham

rejected an invitation to view the parent and nonparent as being 

on equal footing and to determine custody by reference to best 

interests alone. 23 Thus, Tina retains a superior right to custody 

of her child as compared to Jo.

Here, the district court found that the parental preference 

was negated by evidence that it was in Destiny’s best interests to remain with Jo. In so finding, that court emphasized 

our language in Windham that the parental preference could 

be “negated by a demonstration that the best interests of the 

child lie elsewhere.” 24 But in Windham, we did not articulate 

a standard for when the best interests of a child lie elsewhere. 

Instead, we stated that “[a]lthough we are aware of instances 

where courts have determined that the best interests of the 

18 Jennifer T. v. Lindsay P., 298 Neb. 800, 906 N.W.2d 49 (2018).

19 Id.

20 Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017).

21 See id.

22 Jennifer T. v. Lindsay P., supra note 18.

23 See In re Guardianship of K.R., supra note 6.

24 Windham v. Griffin, supra note 9, 295 Neb. at 288, 887 N.W.2d at 717.
- 13 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

child defeated the lawful parent’s preference, we view these 

cases as exceptional.” 25

[14] Although Windham did not articulate a standard for 

the exceptional case, we cited a New Jersey case 26 therein 

that did so. In Watkins v. Nelson,

 27 the New Jersey Supreme 

Court declared that the exceptional circumstances standard 

“always requires proof of serious physical or psychological 

harm or a substantial likelihood of such harm.” The Watkins

court explained that the standard was “designed to reduce or 

minimize judicial opportunity to engage in social engineering 

in custody cases involving third parties.” 28 We agree with this 

articulation. We now refine our articulation in Windham to 

clarify that in order for exceptional circumstances to negate 

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

likelihood of such harm.

The district court relied on language in Windham, but it did 

not have the benefit of this refined standard. Thus, it is unsurprising that the court’s order did not speak in terms of serious 

physical or psychological harm or a substantial likelihood of 

such harm. The court stated that it agreed with Hansen’s conclusions that “it would be detrimental to move Destiny from 

Gretna and [Jo]” and that “it would be a serious undoing and 

one that Destiny might not be able to handle.” But we cannot determine whether the court abused its discretion when it 

applied an incomplete and unrefined standard. 29

Accordingly, we reverse, and remand for reconsideration 

under the elucidated standard for exceptional circumstances. 

25 Id. at 290, 887 N.W.2d at 718.

26 Watkins v. Nelson, 163 N.J. 235, 748 A.2d 558 (2000).

27 Id. at 248, 748 A.2d at 565.

28 Id. at 252, 748 A.2d at 567.

29 See, Eric H. v. Ashley H., supra note 3; State v. McGuire, 301 Neb. 895, 

921 N.W.2d 77 (2018).
- 14 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

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

the expansion of the existing record.

CONCLUSION

When a fit parent has not forfeited his or her superior right 

to custody, the best interests of a child will negate the parental preference principle only in an exceptional case. We now 

clarify that an exceptional case requires proof of serious physical or psychological harm or a substantial likelihood of such 

harm. Because the district court did not have the benefit of this 

articulation, we reverse, and remand for further proceedings 

consistent with this opinion.

Reversed and remanded for 

further proceedings.

Freudenberg, J., concurring.

The district court based its placement decision upon a finding that this was one of those rare instances where a minor 

child’s best interests weigh so heavily in favor of placement 

with a nonparent standing in loco parentis that it overcomes 

the presumption of the parental preference principle under 

Windham v. Griffin. 1 However, as the majority noted, cases 

where the best interests of the child defeated parental preference are exceptional when the court finds a parent fit and has 

not otherwise forfeited such parental preference. In the present 

case, the district court found the mother, Tina K., to be a fit 

parent. I disagree with the district court’s parental fitness finding. However, it was not challenged on appeal.

I believe there was sufficient evidence based on a de novo 

review of the record to find Tina was unfit to parent her minor 

daughter, Destiny B. Tina’s repeated criminal actions resulted 

in her inability to parent, and her lifestyle choices created an 

unhealthy and unstable living environment. The record in this 

matter sets forth Tina’s significant lack of positive parenting 

1 See Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016).
- 15 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

functions as they are defined in Nebraska’s Parenting Act, specifically, Neb. Rev. Stat. § 43-2922 (Reissue 2016). 2

Destiny’s father, Adam B., testified that Tina was using drugs 

both before and after Destiny was born in July 2003. Adam and 

Tina separated a few months later, and Adam retained custody. 

Other than a few letters and occasional visits, the record does 

not show that Tina attempted to support or care for Destiny 

until she sought visitation rights in 2008 after completing a 

prison sentence imposed due to a drug distribution conviction. 

Tina did not obtain custody at that time.

In 2011, Tina again moved to modify custody and was 

granted temporary custody of Destiny. However, the complaint 

to modify custody was subsequently dismissed for want of 

prosecution, which reverted custody back to Adam. Adam testified that he was unaware the complaint had been dismissed, 

so Destiny remained with Tina for a time. Approximately 3 

years after taking custody of Destiny, Tina was again convicted 

and sentenced to incarceration for a drug distribution offense. 

Further, Tina testified that during the period she had custody 

of Destiny, she had become addicted to methamphetamines. 

The record demonstrates that Tina has only provided direct 

care and support for Destiny 3 of the 15 years of Destiny’s 

life, and for at least 1 of those years, Tina was addicted to 

methamphetamines and engaging in the illegal distribution of 

controlled substances.

While Tina was completing her second relevant incarceration period, Destiny’s father reached out to Jo K. and found 

Destiny a stable caretaker. Such placement appears to be the 

first time in Destiny’s life that she was in a safe, stable, consistent, and nurturing setting. The record further establishes 

that with Jo’s support, Destiny began to flourish and address 

some of the psychological issues she had developed during her 

earlier childhood. Both Adam and Tina acknowledged that Jo 

had been the only person parenting Destiny for the previous 

5 years.

2 Neb. Rev. Stat. § 43-2922 (Reissue 2016).
- 16 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

Tina admits that she was not a stable or fit parent until 

2016 and claims that she became so prior to the filing of her 

motion to modify custody. That raises the question whether 

Tina made adequate improvements in her parenting abilities 

and personal situation to merit a finding of fitness. The record 

clearly shows she has not done so. Tina has chosen to allow 

nearly all parenting duties and related financial obligations to 

remain with Jo, even when she had the ability to do otherwise. 

Tina has not exercised the many opportunities she has had to 

become involved in caring for Destiny or fulfilling her parenting functions.

Although Tina testified she could provide insurance for 

Destiny through her work, Tina had not made any effort to put 

Destiny onto her health insurance plan or to engage Destiny’s 

medical or dental providers. Tina also admitted that she has 

never contacted Destiny’s school to attend parent-teacher conferences, inquire about grades, or be involved with her extracurricular activities.

Tina attended one counseling session with Destiny, and that 

one session was enough to raise several concerns for the ther

apist. Tina demonstrated an unwillingness to be attentive to 

Destiny’s feelings and concerns. The therapist testified that 

Destiny felt intimidated by Tina to the point that Destiny could 

not express to Tina that she does not want to live with her.

During her incarceration and for a short time thereafter, Tina 

attempted to address her addiction issues but stopped once she 

had met her court-ordered minimum requirements. Tina testified that she believes she is no longer an addict and that due to 

that fact, she has not voluntarily pursued an aftercare plan or 

chosen to further address her risk of relapse.

I do not believe that a parent is fit when he or she has shown 

a pattern of drug abuse, which leads to dangerous criminal 

behavior, and yet refuses to acknowledge the potential of 

relapse and take preventative measures. I believe that Tina’s 

repeated choices to use and sell dangerous and illegal drugs has 

demonstrated a personal deficiency that has and will continue 
- 17 -

Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE ON BEHALF OF TINA K. v. ADAM B.

Cite as 307 Neb. 1

to prevent performance of her reasonable parental obligations. 

Such conduct has been a detriment to Destiny’s well-being and 

will likely continue to be so in the future. 3

I agree with the district court that it would be in Destiny’s 

best interests to remain with Jo. However, my position is 

based upon the fact that there was sufficient evidence in the 

record on which to find that Tina was unfit to parent Destiny. 

Unfortunately, this court cannot review what I believe to be 

the district court’s mistaken findings of Tina’s parental fitness, 

because it was not challenged upon appeal. Therefore, I must 

concur in the majority’s conclusion that this matter should be 

remanded for further proceedings to determine whether “exceptional circumstances” exist as that phrase is now articulated.

Heavican, C.J., joins in this concurrence.

3 See In re Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 737 (2019).