Nebraska Supreme Court weighs in on side of sex offender step-father: Dad loses custody of teenage daughters to their sex offender stepfather

Majority opinion:  Chief Justice Michael Heavican –  ‘The mother presented substantial evidence the girls were not at risk, while the dad showed nothing beyond the fact that their stepdad was convicted of sexually assaulting a 15-year-old stepdaughter’

Nebraska Supreme Court in majority decision grants convicted sex offender  custody of two teenage stepdaughters

Court refused their father’s attempts to get his girls,  17 and 15,  out of the perv’s house

The stepdad had earlier been convicted of sexually assaulting another underage stepdaughter from a previous marriage and served 4 years

Court’s majority decision acknowledged the circumstances surrounding the sex offender’s previous crime “bears a strong resemblance to [his] current domestic setup,”but the father “presented little evidence about the risk [the stepfather] allegedly poses” 

District and appeals courts earlier sided with the sex offender stepdad, over biological father

Nebraska Supreme Court Judge Lindsey Miller-Lerman1.jpgMinority opinion: Supreme court Justice Lindsey Miller-Lerman  wrote “In my view, the record contains convincing evidence that (the sex offender) posed a significant risk of harm”
Nebraska’s highest court has granted a convicted sex offender custody of his two teenage stepdaughters, after turning down the last attempt of  their biological father to get his daughters out of the household the  pervert shares with his ex-wife.

Leaper Casual Style Lightweight Canvas Laptop Bag School Backpack Messenger Bag Purse Pen Bag 3PCS Set (Dark Blue)The Nebraska Supreme Court on Friday ruled that the girls, who are 17 and 15, will remain in the custody of the sex offender, a man who was convicted of sexually assaulting another underage stepdaughter from a previous marriage.The girls’ father, names withheld the names of those involved because of the nature of the case,  had failed in several attempts to win back custody of his daughters. He lost the case at a district cour, the state appeals court ruled against him and the Supreme Court ultimately sided with the sex offender. his bleak assessment of his position was  “It’s a scary situation for anyone,”  “I can’t imagine any parent being comfortable with having their children in the same household with someone with that kind of background.”

In its decision, the court acknowledged that the circumstances surrounding the sex offender’s previous crime “bears a strong resemblance to (his) current domestic setup.”
But the court said the father failed to produce enough evidence that the convicted stepdaughter molester might molest his new stepdaughters.
The majority opinion, written by Chief Judge Michael Heavican, said the mother presented substantial evidence that the girls were not at risk, while the father presented little evidence beyond the fact that their stepfather was convicted of sexually assaulting a 15-year-old stepdaughter from a previous marriage.
The judiciary has neither the duty nor the power to question the wisdom of policy established by the legislative branch, Heavican said, adding that the court may not act as a “superlegislature.”

Brandon Brinegar attorney for dad whose daughters live with sex-offender step-father1.jpgBrandon Brinegar, the attorney for the father ponders why the mere presence of a sex offender in the home is not enough to warrant a change in living arrangements for the children

The father “presented little evidence about the risk (the stepfather) allegedly poses,” the court wrote in its majority decision. Meanwhile, the sex offender “had volunteered for extensive rehabilitation during his incarceration, even after he became ineligible for parole,” the court wrote.
“He had not been investigated for any sexual wrongdoing since his release. It had been over a decade since (his) offense. And further, (he has) expressed remorse and exhibited a highly positive response to treatment.”

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In a minority opinion, Supreme court Justice Lindsey Miller-Lerman  agreed with the majority’s legal framework but said the father should have been awarded custody. She wrote in her judgement that she was troubled by evidence that the mother was in denial about her husband’s prior sex offense.
“In my view, the record contains convincing evidence that (the sex offender) posed a significant risk of harm”.
For Brandon Brinegar, the attorney for the father, the decision means the mere presence of a sex offender in the home is not enough to warrant a change in living arrangements for the children. The noncustodial parent will have to offer additional proof that the children are at risk.  Brinegar said, “This is now the precedent,” he said. “If the Legislature wants the law to do something other than what this interpretation says, they will have to do something to change the law.”

Nebraska Supreme Court1.jpeg
The Nebraska SpremeCourt in Lincoln, Nebraska

According to court papers,  the girls’ parents divorced in 2004 after five years of marriage. The mother won custody of the daughters, with the father earning regular visitations.
Since the divorce, this is the second time the mother of the girls has been in a relationship with a sex offender. After her marriage to the father ended, she lived with a man who was later convicted of sexually assaulting her 5-year-old child, who is not one of the two girls in the custody dispute.
In 2010, she moved in with the current sex offender, who had been convicted of a sexual assault that occurred in 2002. She married him in 2012, when the girls were 12 and 10.

The new stepfather was convicted in 2002 of sexually assaulting a stepdaughter in his previous marriage.
According to court papers, the victim said her stepfather had rubbed her breasts and genitals and digitally penetrated her over a two-year period. He was convicted of first-degree sexual assault and sexual assault of a child, and spent four years behind bars.
Three years after his release, he started dating his now-wife. His new wife eventually learned about his sickening crime, but told a therapist she “preferred to put the thought of (his) history of mind”.
After moving in with the girls, the family established “precautions” for him, there was a “dress code” and a lock on the bathroom doors, and the girls had to change in private and adjust their “shower schedules.” Still, the sex offender still had plenty of solo time with them, and even took each girl with him alone for hunting trips.
In 2013, the father learned his ex-wife was with yet another sex offender, her current husband, who lives with the daughters and has “unsupervised access” to the girls. That year he filed a petition for custody, arguing that living with a sex offender put his daughters at risk and was not in their best interests.|
The father filed court papers to have the girls removed from their new home, arguing that the sex offender’s history “creates a very strong presumption against custody”.
But the state Supreme Court in handing it’s decision wrote, there is “no such policy” stating outright that sex offenders cannot keep custody of kids.

Retired Nebraska high court Judge William Connolly1.jpg Judge William Connolly, dissents with the majority opinion. He called the ruling a “tortuous statutory analysis” that leaves a father “feeling helpless to protect his children.”

The court’s decision heavily relied on testimony from the girls’ psychologist, who defended the sex offender’s parenting abilities, although she admitted having never met with the stepfather, and “testified that she had no basis to determine whether (he) had actually been rehabilitated.”

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According to the therapist, the girls never reported any “grooming behaviors” from their stepfather. She however, acknowledged that the girls reported “angry outbursts” from their stepfather, including an instance of him throwing a brick, and another of him punching a grain bin.
The court concluded that the therapist “related only her opinion, based upon contact with (the mother) and the girls, that there was no risk to the girls.”
Dissent from he Supreme Court decision came from more than one judge in the state. In a rare depature from the top court’s rulings,  Nebraska high court Judge William Connolly, who recently retired after 22 years on the bench, called the majority opinion a “tortuous statutory analysis” that leaves a father “feeling helpless to protect his children.”

“As a south central Nebraska sage I knew would often say, ‘It just ain’t right,’ ” Connolly added.

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