August 24, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
We often see anti-father bias in family courts, but, in the case of Hopkins v. Hopkins, it looks like Nebraska courts are trying for some sort of record. Maybe it’s the effect of the Olympics, but if there’s a gold medal for blatant, anti-dad, result-oriented jurisprudence, I say it goes to the Nebraska courts, particularly the state Supreme Court.
I first wrote about the Hopkins case here and here. The case was hair-tearingly outrageous then, but the Supreme Court’s decision verges on the unbelievable. This one’s so bad it’s garnered not only national but international outrage. Here, here, here and here are examples from among many.
To summarize as briefly as possible, Robert and Kyel Hopkins were married for a time. She had a daughter by a previous relationship and the two had a daughter of their own. They divorced and of course Kyel got primary custody. As a dad, there are no black marks by Robert’s name. By all accounts, he’s a fit and loving father.
In due time, Kyel remarried one Thomas Rott. That’s all very well, but it turned out that Rott was a registered sex offender having sexually abused, over a two year period his stepdaughter by a previous marriage. He pleaded guilty to felony sex offenses and served considerable time in prison. Kyel never told Robert that she was in a relationship with and later married to a registered sex offender who was of course living with two minor girls. Nor did she inform him that Rott had unsupervised time with the girls or that he’d taken them on hunting trips alone.
But Robert found out.
Now the Nebraska Legislature takes a very dim view of registered sex offenders having contact with minors. It takes such a dim view that it passed a special law stating that no one may have custody of a child if that person is living with a registered sex offender in Rott’s situation (i.e. a felonious sex offender). The law creates a rebuttable presumption that, if the sex offender poses a “significant risk” to the child, then custody must be modified.
So, given that, Robert moved to modify custody based on his daughter’s being left unsupervised with Rott, a registered sex offender. Due to the presumption in the law, it thus became Kyel’s burden to prove that her new husband posed no significant risk to the girls with whom he was living. The trial court so found and the Court of Appeals and now the Nebraska Supreme Court have affirmed. In short, Robert’s daughter continues to live with Rott and there’s nothing her father can do about it.
So let’s examine the evidence Kyel produced that all three courts found to be sufficient to rebut the presumption the legislature established to prevent kids living with sex offenders.
First, Rott completed a program for sex offenders while he was in prison. No mention has been made of its efficacy and Nebraska police indicate such programs have little effect on recidivism.
The girls testified that Rott hadn’t sexually abused them.
Kyel testified that Rott seemed like a changed man. Of course it was in her interest to do so. If she lost, she’d lose custody of her daughter to Robert and doubtless be forced to pay child support. And then there’s the little fact that Kyel’s ability to judge men isn’t the greatest. Prior to her marriage to Rott, she’d been in a relationship with – yes – another sex offender who’d abused her daughter.
But none of the above was given much weight by the courts. What they did accord significant importance was the testimony of therapist Joan Schwan.
Who is Joan Schwan? She’s a therapist with exactly zero expertise in assessing adult sex offenders. Moreover, she neither met with, spoke with nor had any form of communication with the man she was assessing for his propensity to re-offend, Thomas Rott. All she did was interview the two girls and Kyel. And, in the words of dissenting justice William Connolly,
The children’s therapist, on whose opinion the trial court heavily relied, could not say whether Thomas Rott (Rott) presented a risk of reoffending.
Yes, that’s the extent of the “evidence” proffered by Kyel to rebut the presumption that Rott presents a significant risk of sexual abuse to the two minor girls with whom he lives. The “expert” on whose testimony the trial judge relied was entirely unqualified to render an opinion on the key aspect of the case (i.e. significant risk) and, to her credit, did not do so. Accordingly, the very person on whose testimony the court placed so much emphasis offered nothing competent on the key issue in the case.
In short, there was before the trial judge essentially no admissible and competent evidence with which to rebut a presumption that is clearly important to the state legislature. But the judge did so anyway, finding that Rott presents no significant risk of harm to the girls.
Do you think that’s outrageous? Well, as we say in Texas, you ain’t seen nothin’ yet.
We now come to the Supreme Court’s decision upholding both lower courts. It wasn’t easy for the Court to accomplish that feat, but, in the end, six of the eight justice proved equal to the task.
First, the majority faced the thorny problem of the Supreme Court’s own precedent. Fortunately for the majority, they sit on the state’s highest court and therefore their decisions are precedents for all matters of state law. So, if a previous case law prohibits the result desired by the majority, then the majority can simply overrule themselves and reach the desired end. And that is precisely what the majority in Hopkins did.
Just three years ago, the Nebraska Supreme Court in Watkins v. Watkins ruled unanimously, in a case almost identical to Hopkins, that the statute in question created a presumption that a sex offender living in the home created a significant risk of harm to minors there. That of course created a problem for the Court in Hopkins, so
[I]n retrospect, the language of subsection (1)(b) does not support the interpretation this court made in Watkins, and we now disapprove of our reasoning in that case to the extent it is inconsistent with the instant opinion.
That was easy. Watkins got in the way of the preferred conclusion, so the majority simply ignored it. So, with Watkins out of the way, what is the law now in Nebraska on whether a sex offender living with minor children requires a court to transfer custody to the other parent? Well, to put it simply, the Nebraska Supreme Court has entirely abrogated the clear intention of the legislature. In order to rebut the presumption that a sex offender presents a significant risk of harm, all a parent has to do is produce some evidence – any evidence, regardless of how unbelievable – and presto! she’s satisfied her burden of proof.
Do you think I overstate the point? I do not. Just look:
[T]o overcome the presumption, Kyel was required only to present evidence tending to prove that Thomas was not a significant risk to the girls.
How much evidence does it usually take to rebut a presumption? Well generally speaking, it requires the amount of evidence that’s required to prove a case, so it depends on what court the case appears in. If it’s a criminal case, the prosecution can only overcome the presumption of innocence by producing evidence beyond a reasonable doubt. If the case is in civil court, the plaintiff must produce a preponderance of evidence (i.e. 50% +) in order to prevail.
But, according to the Court in Hopkins, no such hurdles must be cleared – not proof beyond a reasonable doubt, not clear and convincing evidence, not even 50% +. Kyel merely had to produce some evidence “tending to prove” a lack of risk and she was home free. And, in case anyone might not get the message, the Court went on to clarify its holding.
[T]he credibility of Kyel’s evidence should not impact its rebutting effect. “[T]he determination that a [party] has met its burden of production . . . can involve no credibility assessment..
That’s right; whether a witness’ evidence has any credibility whatsoever has no bearing on whether the presumption is rebutted. Forever afterward, in Nebraska courts, in rebutting a presumption the elected officials of the state deemed important enough to write into the statute books, literally anyone can say anything and, as long as it “tends to prove” no significant risk, then a sex offender can remain living with children. That’s not just my opinion; Justice Connolly read the majority the same way.
[A]ccording to the majority, all that the mother needs to do to overcome the statutory presumption that these circumstances warrant a change in custody is to present any evidence—persuasive or not—that the sex offender does not present a risk of harm.
Testimony doesn’t get much weaker than Schwan’s, but the Court invites it to do so in the future. Apparently, Mom can testify that her new husband/boyfriend is not a significant risk and, irrespective of her obvious self-interest in the matter and her entire absence of qualifications to so say, the presumption vanishes because, after all, it “tends to prove” no significant risk. If taken at face value, the majority opinion in no way limits who may testify or to what as long as the testimony “tends to prove” no significant risk.
As far as I know, this is unprecedented anywhere in law. The idea that a statutory presumption can be rebutted by any quantum of evidence adduced from any witness regardless of how incredible is truly unknown to the legal profession.
The majority’s opinion should be overturned by the Nebraska Legislature without delay. I predict it will be.
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