Background
Jami L. Sunde and Kristopher P. Marcoe have two children. A 2018 paternity decree awarded Sunde legal and physical custody and granted Marcoe parenting time. After Sunde and the children moved to North Dakota, the parenting plan required Marcoe to submit to hair-follicle drug testing upon notice and suspended his parenting time if he refused testing or tested positive. In July 2020, the district court suspended his in-person parenting time until he provided Sunde a negative test, while permitting weekly telephone or video communication.
Marcoe had no contact with the children during the six months before Sunde filed her May 2024 complaint to terminate his parental rights, a period during which he was imprisoned. The parties disputed whether his lack of contact resulted from incarceration and Sunde’s failure to provide her new telephone number or from Marcoe’s own inaction. The evidence also showed that he had not visited the children in at least 4½ years, had made only sporadic efforts to maintain contact, and did not obtain a negative hair-follicle test until December 2024 or resume child-support payments until February 2025.
The district court found clear and convincing evidence that Marcoe had abandoned the children and that termination was in their best interests. It also found that Sunde was not in contempt of prior parenting orders. Marcoe appealed, challenging the district court’s choice of forum, the termination decision, its failure to modify custody instead, and its disposition of his contempt request.
The Court’s Holding
The Nebraska Supreme Court affirmed. It held that the record supported the district court’s conclusion that it was the more appropriate forum under Neb. Rev. Stat. § 42-364(5), given more than seven years of proceedings there and its familiarity with relevant prior findings. Marcoe had not asked the district court to transfer the case or otherwise raised the forum issue below.
Reviewing the termination ruling de novo, the court found clear and convincing evidence of abandonment under § 43-292(1). Marcoe’s incarceration did not excuse his failure to contact the children because other avenues remained available, including seeking court assistance. His lack of contact during the statutory period, viewed alongside his sporadic involvement before incarceration and delayed efforts after release, demonstrated abandonment.
The court separately found clear and convincing evidence that termination was in the children’s best interests. Despite evidence of Marcoe’s recent sobriety and personal improvement, questions remained about the permanence of those changes, and the record showed an extensive criminal history, little sustained involvement in the children’s lives, no beneficial parent-child relationship, and no desire by the children to see him. Because termination was warranted, the court rejected custody modification as an alternative and held that Marcoe’s contempt dispute became moot once his parental rights were terminated.
Key Takeaways
- A district court may retain a parental-rights termination matter under § 42-364(5) when the record supports its status as the more appropriate forum, even without an express finding following a separate hearing.
- Incarceration alone does not establish abandonment, but it does not shield a parent from termination when clear and convincing evidence shows the parent failed to pursue available means of maintaining contact or fulfilling parental responsibilities.
- A statutory ground for termination and the child’s best interests require separate inquiries; recent rehabilitation does not necessarily overcome a longstanding absence, an uncertain prognosis, and the absence of a beneficial parent-child relationship.
Why It Matters
The decision emphasizes that Nebraska courts assess abandonment in context, considering parental conduct before and after the statutory six-month period rather than viewing incarceration or missed contact in isolation. Parents must make meaningful use of available avenues—including court intervention—to preserve their relationships with their children.
The opinion also reinforces the high constitutional threshold for terminating parental rights while recognizing that a child need not await uncertain parental rehabilitation indefinitely. Once termination produces a complete severance of parental rights, disputes over enforcing prior custody and parenting-time orders may become moot.