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Hopkins v. Hopkins

Supreme Court of Nebraska

August 19, 2016

Kyel Christine Hopkins, appellee,
v.
Robert Keith Hopkins, appellant.

         1. Statutes: Judgments: Appeal and Error. The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court.

         2. Judgments: Evidence: Appeal and Error. Despite de novo review when credible evidence on material questions of fact is in irreconcilable conflict, an appellate court will, when determining the weight of the evidence, consider that the trial court observed the witnesses when testifying, and used those observations when accepting one version of the facts over the other.

         3. Modification of Decree: Appeal and Error. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court.

         4. Child Custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.

         5. Modification of Decree: Child Custody: Proof. In a child custody modification case, first, the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Next, the party seeking modification must prove that changing the child's custody is in the child's best interests.

         6. Child Custody: Convicted Sex Offender. Neb. Rev. Stat. § 43-2933(1) (Reissue 2008) guides custody determinations when a person required to register under the Sex Offender Registration Act has access to a child.

         7. ___: ___. Neb. Rev. Stat. § 43-2933(1)(b) (Reissue 2008) applies when a party seeking custody resides with a person required to register under the Sex Offender Registration Act and that person committed an [294 Neb. 418] underlying offense that was either a felony in which the victim was a minor or an offense making the offender's access to a child contrary to the child's best interests. Subsection (1)(c) applies when a person required to register under the Sex Offender Registration Act has unsupervised contact with a child and the underlying crime was a felony involving a minor victim.

         8. Presumptions: Proof: Words and Phrases. A presumption is the evidentiary assumption of one fact (the presumed fact) based upon proof of other facts (the predicate facts). The presumed fact is taken as true unless the opponent of the presumed fact meets a particular burden of proof.

         9. ___: ___: ___. The "bursting bubble" presumption shifts only the burden of production, and if that burden is met, the presumption disappears.

         10. ___: ___: ___. Under the "Morgan" theory of presumptions, a presumption shifts the burdens of both production and persuasion, and the presumption remains in evidence even if the opponent's burden is met.

         11. Statutes: Proof. The plain language of Neb. Rev. Stat. § 43-2933(1)(c) (Reissue 2008) shifts only the burden of production.

         12. Child Custody: Convicted Sex Offender. Neb. Rev. Stat. § 49-2933 (Reissue 2008) requires a trial court to consider whether, in its discretion, a sex offender poses a risk, sufficiently great or important to be worthy of attention, of committing a sexual offense against the child or children in question.

         13. Proof. The determination that a party has met its burden of production can involve no credibility assessment; the burden-of-production determination necessarily precedes the credibility-assessment stage.

         14. Statutes: Legislature: Public Policy. It is the Legislature's function through the enactment of statutes to declare what is the law and public policy.

         Petition for further review from the Court of Appeals. Moore, Chief Judge, and Pirtle and Bishop, Judges, on appeal thereto from the District Court for Phelps County, Terri S. Harder, Judge.

          Kent A. Schroeder, Kenneth F. George, Mindy L. Lester, and D. Brandon Brinegar, of Ross, Schroeder & George, L.L.C., for appellant.

          Nicholas D. Valle, of Langvardt, Valle & James, PC, L.L.O., for appellee.

         [294 Neb. 419] Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, and Stacy, JJ.

          Heavican, C.J.

         I. NATURE OF CASE

         Robert Keith Hopkins seeks review of the Nebraska Court of Appeals' decision affirming the district court's denial of Robert's counterclaim for custody of his daughters. Robert, whose marriage to Kyel Christine Hopkins was dissolved in March 2004, asserts that under Neb. Rev. Stat. § 43-2933 (Reissue 2008), custody should be modified, because Kyel is now married to Thomas Rott (Thomas), a registered sex offender.

         The question presented is whether Kyel has met her statutory burden to produce evidence that the girls are not at significant risk and, if so, whether the district court abused its discretion by finding that the girls were not at significant risk. Guided by the plain language of § 43-2933, we affirm the district court's denial of modification.

         II. BACKGROUND

         In 2004, Robert and Kyel divorced. The decree granted Kyel full custody of their two daughters, with regular visitation for Robert. The parties each also have children from other marriages not relevant to our review.

         In January 2013, Kyel filed an application to modify visitation. Robert counterclaimed, seeking full custody. Robert asserts that he should be granted a modification of custody, because Kyel's current spouse, Thomas, resides with and has unsupervised access to the children and is a registered sex offender for reason of a felony involving a minor. Robert alleges he was not aware of Thomas' sex offender status until July 2013, after Kyel initiated modification proceedings.

         1. Thomas' Offenses, Incarceration, and Rehabilitation Efforts

         In 2002, Thomas sexually assaulted his minor stepdaughter from a prior marriage. The probable cause affidavit for Thomas' [294 Neb. 420] arrest stated that the victim alleged that Thomas had rubbed her breasts and vaginal area 12 to 14 times over the course of 2 years, including digital penetration one time and penetration with a vibrator one time. But Thomas did not admit to these precise facts. According to the affidavit, Thomas admitted that he had touched the minor's breasts five to six times, penetrated her once digitally, and rubbed her with a vibrator. At trial on the application to modify, Thomas testified that the inappropriate touching lasted a period of 3 to 4 months, and not the 2 years alleged by the victim.

         The State charged Thomas with two counts of first degree sexual assault, and one count of sexual assault of a child. Thomas eventually pled guilty to a modified count one, attempted sexual assault of a child, and the other charges were dismissed by the State. Thomas was incarcerated from 2003 to approximately 2007. He completed several voluntary rehabilitative programs while in prison. Among these was "GOLF 3, " which was a program designed specifically for sex offenders. Thomas testified that after "he had done everything at that point that I could for what they had" and participating in individual counseling at the state penitentiary, he applied for and was admitted to an inpatient sex offender program at the Lincoln Correctional Center for more intensive rehabilitation. Thomas applied for this program after he had already been denied any opportunity for parole. At the trial on modification, Thomas testified that he participated in the inpatient program "to make sure that what happened would never ever happen again." Thomas testified that he has not been investigated for any sexual misconduct since his incarceration.

         2. Thomas' Access to Children

         A few years after Thomas' release, he and Kyel began dating in May 2010, and they moved in together that August. They married in 2012. Some evidence at trial revealed that initially, Kyel was reluctant to address Thomas' criminal history. Joan Schwan, the children's therapist, testified that Kyel [294 Neb. 421] stated she preferred to put the thought of Thomas' history out of mind. At first, Kyel allegedly told Schwan that Thomas' conviction was the result of a bad divorce-a fact Schwan discovered to be untrue upon her own investigation. At trial. Schwan testified that she recommended the family be open about Thomas' criminal history and stated that Kyel's apparent denial of that history was concerning.

         Other evidence in the record reveals that in 2004, Kyel dated, and had a child with, a different man who later pled guilty to a misdemeanor charge of attempted sexual assault of a child for digitally penetrating one of Kyel's other daughters.

         Robert testified at the trial for modification that Kyel took no steps to investigate Thomas' background, but Robert also admitted to having no personal knowledge of this fact. In fact, Kyel and Thomas both testified that Thomas told Kyel everything about his sex offender status before they moved in together. Kyel also testified that before deciding to move in, she discussed Thomas' history with a Child Protective Services hotline and with family members, seeking their advice. Although Kyel initially concealed Thomas' sex offender status from the girls, under Schwan's direction, Kyel eventually told them during a therapy session.

         The record shows that Thomas has unsupervised time with the children each day from 6 to 7 a.m. Thomas has also taken each of the girls hunting alone. The household takes precautions such as ensuring there is a lock on the bathroom door, adjusting shower schedules, establishing a dress code, having the girls change in private, and limiting Thomas' time alone with one child. Kyel and Thomas also informed other parents of his sex offender registration status before children came over to their house. Both girls testified they felt safe with Thomas, and neither girl reported any actions of a sexual nature.

         Schwan testified at the trial for modification. She stated that the children have not reported any "grooming behaviors" (methods sexual abusers use to build a child's trust). Thomas has had angry outbursts in front of the girls-one time he [294 Neb. 422] abruptly stopped his car during an argument with the girls and another time he threw a brick. Schwan additionally testified that the girls reported Thomas had once punched a grain bin. Robert contends that these incidents are red flags. Schwan. however, disagreed. Schwan described grooming behaviors as actions an offender takes to test whether a child is likely to keep inappropriate behavior secret. For example, if an offender were to give a child special treatment, and tell the child not to reveal that special treatment to a parent, that would be a red flag. Schwan's description of grooming behaviors did not include angry outbursts.

         Schwan has never met Thomas, nor was she offered to the court as an expert witness in adult sex offenders. Although Schwan had reviewed some of Thomas' prison records (which are not part of the record on appeal), she testified that she had no basis to determine whether Thomas had actually been rehabilitated. Schwan related only her opinion, based upon contact with Kyel and the girls, that there was no risk to the girls. The district court found that Schwan's opinion was entitled to "considerable weight."

         Other than Thomas' unsupervised access to the children, Robert presented no evidence of a material change in circumstances since the decree; Robert relies solely on § 43-2933 for modification.

         3. Best Interests of Children

         Aside from exploring Thomas' risk level as a sex offender, the parties also presented evidence generally concerning the best interests of the children. Both Robert and Kyel called character witnesses, who generally vouched for each of Robert and Kyel's credentials as good parents. Robert testified that on one occasion in or around 2010, Kyel's home was cramped and very messy, with food and items on the floor. Robert also expressed concern that Kyel apparently was not proactive about investigating Thomas' criminal history before moving in with him. However, this testimony was contradicted by Kyel's and Thomas' own testimony.

         [294 Neb. 423] The children, by all accounts, love both of their parents and get along well with them. The girls seem to be generally happy and doing well in school. The younger daughter testified that she would like to live with Robert in order to spend more time with her father and half siblings there. But Schwan testified that the younger child probably does not understand what that would be like in the long term because she is somewhat emotionally delayed. The older daughter testified that she was unsure which parent she would like to live with and preferred not to make a decision.

         4. Procedural History

         The district court denied Kyel's application to modify, finding there was no material change in circumstances. Kyel did not appeal this determination, and we will not review it. The district court then assessed Robert's counterclaim under § 43-2933, which controls when a party to a custody suit is or resides with someone who is required to register under the Sex Offender Registration Act (SORA). The full statutory scheme of § 43-2933 is described below.

         The district court found that the facts of this case triggered a presumption under § 43-2933(1)(c) against Kyel's having custody. But the district court held that Kyel had overcome that presumption based upon Schwan's testimony. It also discussed Thomas' successful completion of rehabilitative programs and the lack of any allegations of sexual misconduct since 2003.

         The Court of Appeals affirmed as modified.[1] That court's modification is not relevant to the issues on appeal. It found that the presumption against custody had been overcome and affirmed the district court's continued award of custody to Kyel.

         Robert filed a petition for further review, which we granted because the interpretation of § 43-2933(1)(c) is an issue of first impression.

         [294 Neb. 424] III. ASSIGNMENTS OF ERROR

         On further review, Robert assigns, consolidated and restated, that the Court of Appeals erred by (1) finding that Kyel had rebutted the § 43-2933(1)(c) presumption and (2) failing to award custody to Robert.

         IV. STANDARD OF REVIEW

         The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court.[2]

         Despite de novo review, when credible evidence on material questions of fact is in irreconcilable conflict, an appellate court will, when determining the weight of the evidence, consider that the trial court observed the witnesses when testifying, and used those observations when accepting one version of the facts over the other.[3]

         Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court.[4]

         V ANALYSIS

         Robert asserts that if, as here, a person required to register under SORA because of a felony offense involving a minor victim resides with a party seeking custody and the person has unsupervised contact with a child, § 43-2933(1)(c) creates a very strong presumption against custody. Robert argues that the Court of Appeals failed to impose a strong enough burden upon Kyel.

         We disagree with Robert's assessment of § 43-2933(1)(c). As discussed extensively below, the Legislature has chosen, with explicit language, precisely how courts should proceed in custody suits involving unsupervised contact by sex [294 Neb. 425] offenders. Under the Legislature's instruction, and limited by our standard of review, we find that Kyel overcame the presumption of § 43-2933(1)(c) and that Robert subsequently failed to prove the girls were at significant risk. Therefore, we affirm the Court of Appeals' affirmance of the district court's judgment.

         1. Presumption in § 43-2933(1)(c)

         (a) Statutory Scheme for Custody Determinations

         Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.[5] First, the party seeking modification must show a material change in circumstances, occurring after the entry of the previous custody order and affecting the best interests of the child. Next, the party seeking modification must prove that changing the child's custody is in the child's best interests.[6] However, § 43-2933(1) guides custody determinations when a person required to register under SORA (offender) has access to a child. Under § 43-2933(3), if there is a change in circumstances regarding § 43-2933(1) or (2), modification is warranted. Section 43-2933, in pertinent part, provides:

[(1)](b) No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child if anyone residing in the person's household is . . . a[n] offender ... as a result of a felony conviction in which the victim was a minor or for an offense that would make it contrary to the best interests of the child for such access unless the court finds that there is no [294 Neb. 426] significant risk to the child and states its reasons in writing or on the record.
(c) The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under [SORA] shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence. . . .
(3) A change in circumstances relating to subsection (1) or (2) of this section is sufficient grounds for modification of a previous order.

         Speaking broadly, subsection (1)(a) applies in cases where the person seeking custody is an offender. Subsection (1)(b) governs custody determinations when a person seeking custody resides with an offender. Both subsections (1)(a) and (1)(b) state that custody shall not be granted "unless the court finds that there is no significant risk to the child." And subsection (1)(c) imposes a statutory presumption of significant risk in certain cases, explained further below.

         Subsection (1)(b) does not apply to every circumstance in which a person seeking custody resides with an offender. Rather, the subsection applies only if the offender committed an underlying offense that was either a felony offense in which the victim was a minor (felony) or an offense making the offender's access to a child contrary to the child's best interests (contrary-to-interest). Subsection (1)(c) applies when an offender has unsupervised contact with a child and the underlying crime was a felony-type offense. It imposes a presumption that there is a significant risk in these cases.

         Thus, to reach subsection (1)(b), a court must ask whether a party seeking custody (or other access) resides with an offender who committed either an underlying felony or contrary-to-interest-type offense. If so, subsection (1)(b) applies and the [294 Neb. 427] court shall not grant custody "unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record." Next, to reach the subsection (1)(c) presumption, the court must determine whether the offender committed an underlying felony-type offense and whether the offender is permitted unsupervised access to the child. If the answer to both of these questions is yes, then (with exceptions not relevant here) subsection (1)(c) provides that these facts "shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence."

         Finally, subsection (3) states that "[a] change in circumstances relating to subsection (1) ... is sufficient grounds for modification of a previous order." We read this to mean that if the circumstances described in subsection (1) or subsection (2) were to arise after entry of an order, that order can be modified. For example, if after an initial order a party with custody moves in with an offender who committed a felony or contrary-to-interest offense, and the child is at significant risk, then that is a change in circumstances sufficient to modify custody.

         Thomas is an offender with an underlying felony or contrary-to-interest offense, and he lives with Kyel, who has custody, so subsection (1)(b) applies. Specifically, Thomas committed a felony-type offense and also has unsupervised contact with the children; therefore, the presumption of significant risk under subsection (1)(c) also applies in this case. Should the court determine that there has been a change in circumstances placing the girls at significant risk in the context of subsections (1)(b) and (c), then subsection (3) calls for modification in Robert's favor, unless other mitigating factors (not relevant here) warrant retaining custody with Kyel.

         The nature of the subsection (1)(c) presumption is the central controversy for our review in this case. It is interpreted in detail below. [294 Neb. 428]

         (b) Presumptions Generally

         Before proceeding to the merits of Robert's arguments, we take this opportunity to review presumptions generally. We have noted before that the term "presumption, " though a term of art, is often conflated with other concepts.[7] Broadly, a presumption (sometimes called a rebuttable presumption) is the evidentiary assumption of one fact (the presumed fact) based upon proof of other facts (the predicate facts).[8] The presumed fact is taken as true unless the opponent of the presumed fact meets a particular burden of proof.

         Burden of proof is another commonly confused term. It can mean, as relevant here, either the burden of persuasion or the burden of production.[9] The burden of persuasion requires the party bearing the burden to convince a fact finder to a particular standard of proof[10] A burden of production requires parties to present particular evidence, regardless of whether that evidence actually persuades the finder of fact.[11]

         Generally, there are two types of presumptions. The "'bursting bubble'" presumption shifts only the burden of production, and if that burden is met, the presumption disappears.[12]As the U.S. Supreme Court explained in great depth in St. Mary's Honor Center v. Hicks, [13] "although the . . . presumption [294 Neb. 429] shifts the burden of production to the defendant, ' [t]he ultimate burden of persuading the trier of fact . . . remains at all times with the plaintiff" Under the competing "Morgan" theory of presumptions, [14] a presumption shifts the burdens of both production and persuasion, and the presumption remains in evidence even if the opponent's burden is met.[15]

         Nebraska Evidence Rule 301[16] has adopted the Morgan theory of presumptions as the default rule: "In all cases not otherwise provided for by statute or by these rules a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence."

         (c) Presumption in § 43-2933(1)(c)

         Robert argues that § 43-2933(1)(c) is a Morgan presumption, shifting both the burden of production and the burden of persuasion. But § 43-2933(1)(c) "otherwise provides"[17] a bursting bubble presumption. In pertinent part, § 43-2933(1)(c) provides:

The fact that a child is permitted unsupervised contact with a person who is required, as a result of a felony conviction in which the victim was a minor, to be registered as a sex offender under [SORA] shall be prima facie evidence that the child is at significant risk. When making a determination regarding significant risk to the child, the prima facie evidence shall constitute a presumption affecting the burden of producing evidence.

(Emphasis supplied.)

         [294 Neb. 430] Robert is technically correct that subsection (1)(c) does not expressly state that rule 301 does not apply. However, absent anything to the contrary, statutory language is to be given its plain meaning, and a court will not look beyond the statute or interpret it when the meaning of its words is plain, direct, and unambiguous.[18] The plain language of § 43-2933(1)(c) shifts only the burden of production. We need not look beyond the scope of the statute, to rule 301, to determine the effect of the presumption, because the statute is unambiguous. The Legislature used clear and direct language. To read subsection (1)(c) as imposing the same presumption as rule 301 would render the statute's presumption language superfluous and meaningless.

         Both Robert and Justice Connolly's dissent raise our per curiam decision in Watkins v. Watkins[19] to assert that under the rules of statutory construction, we are required to find that subsection (1)(c) does more than merely shift the burden of production. In Watkins, a father sought to modify custody of his children because the children's mother resided with a registered sex offender. In that case, however, the offender had committed an underlying misdemeanor contrary-to-interest offense-not a felony offense. Therefore, we assessed whether the offender in that case was a significant risk under subsection (1)(b) alone, without reference to the subsection (1)(c) presumption. However, we interpreted subsection (1)(b) to create a presumption of significant risk.

         But, in 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. Section 43-2933(1)(b) reads:

No person shall be granted custody of, or unsupervised parenting time, visitation, or other access with, a child [294 Neb. 431] if anyone residing in the person's household is required to register as a sex offender under [SORA] as a result of a felony conviction in which the victim was a minor or for an offense that would make it contrary to the best interests of the child for such access unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record.

         Contrary to our decision in Watkins, we find the statute requires only that the court must make a factual finding, not that the court must find that there is a significant risk in the absence of rebutting evidence. Thus, while subsection (1)(b) and SORA indicate that the Legislature perceives a correlation between sex offender criminal history and the risk that offender poses to a child, subsection (1)(b) does not require any particular outcome based upon that criminal history alone.

         Reading these subsections in the context of subsection (1)(c) supports this interpretation. Subsection (1)(c) explicitly establishes a presumption affecting the burden of production. As discussed extensively above, the only two types of presumptions are those shifting the burden of production and those shifting both the burden of production and the burden of persuasion.

         Although we agree that the Legislature intended subsection (1)(c) to make it more difficult for a parent to obtain or retain custody in this situation, such intent causes us to reevaluate Watkins-not ignore the plain language of the statute. Justice Connolly urges us to ignore the explicit language of subsection (1)(c) and find that subsection (1)(b) is a presumption shifting the burden of production, and, therefore, subsection (1)(c) must be a presumption shifting the burden of persuasion. We find it more proper to implement the plain language of subsection (1)(c), imposing a presumption shifting the burden of production, and, therefore, we find subsection (1)(b) is not a burden-shifting presumption at all.

         Justice Connolly's dissent attempts to support its contrary interpretation by emphasizing language from the statute [294 Neb. 432] referring to the facts of subsection (1)(c) as "prima facie evidence." The dissent correctly notes, citing to Nebraska case law, that "once a noncustodial parent establishes a prima facie case, a custodial parent must produce evidence that, if believed by the trier of fact, would rebut the presumption that a plaintiff is entitled to judgment."[20] (Emphasis supplied.) But the dissent fails to note that we have done exactly that. As we explained in depth above, if a party presents evidence giving rise to a presumption that shifts only the burden of production, the opposing party may overcome that presumption with evidence that, if believed by a reasonable fact finder, tends to disprove the presumed fact, regardless of whether that evidence ultimately persuades the court. By assessing whether Kyel's evidence, if believed, would rebut the presumption that Thomas posed a significant risk, we have correctly applied precisely the standard which the dissent accuses the court of ignoring.

         Next, Justice Connolly, citing to a Nebraska case, implies that the court is splitting hairs, and states that "we have previously reasoned that it serves no purpose to impose a technical understanding of a legal term in a statute when the Legislature obviously intended a different result."[21] But, as noted, Watkins does not actually express legislative intent; subsection (1)(b) was not meant to establish a presumption. Therefore, we do not find that the Legislature obviously intended the dissent's desired result. The language of the statute requires our interpretation, and we see no indication that the Legislature [294 Neb. 433] intended a different outcome. We decline to exaggerate the impact of subsection (1)(c) based upon our erroneous interpretation of subsection (1)(b) in Watkins.

         For these reasons, to overcome the presumption under § 43-2933(1)(c), Kyel was required only to produce evidence that the girls were not at significant risk.

         2. Kyel's Evidence to Overcome § 43-2933(1)(c) Presumption

         To determine whether Kyel produced evidence to overcome the presumption of § 43-2933(1)(c), we must identify what evidence might be relevant to prove or disprove that an offender poses a significant risk of harm. The Legislature has not defined "significant risk" in the context of § 43-2933, and we have never directly interpreted this part of the statute. Nor can this court locate legislative history to guide our reading of this term. This court has found similar statutes in other jurisdictions requiring a finding of no significant risk.[22] But we have not located case law discussing the meaning of the term thoroughly enough to be helpful here.

         However, we note that the Legislature has found that sex offenders pose a high risk of recidivism.[23] And regulations formerly used by the Nebraska State Patrol, under authority granted by SORA, categorized "risk" to determine how likely an offender was to commit a repeat offense.[24] Therefore, we conclude that the harm contemplated in § 43-2933 refers to the probability that an offender will commit another sex offense, harming the child in question.

         The risk that an offender will reoffend need not be high or even probable in order to warrant a modification of custody under S 43-2933. The plain meaning of "significant, " [294 Neb. 434] as relevant here, is "[sufficiently great or important to be worthy of attention."[25] Thus, § 43-2933 requires a trial court to consider whether, in its discretion, a sex offender poses a risk, sufficiently great or important to be worthy of attention, of committing a sexual offense against the child or children in question.

         We have discovered little authority to clarify what evidence may be necessary in order to measure risk. And we do not presume to name an exhaustive list of circumstances which might indicate the presence or absence of a significant risk of harm. Nor do we limit the method by which the risk of harm may be established. Instead, we note that the trial court's discretion is integral to this analysis. A trier of fact benefits from the opportunity to hear and observe witnesses. Generally, therefore, it is in a better position than appellate courts to make credibility determinations essential to the assessment of significant risk.

         As discussed, because Thomas is a sex offender with an underlying felony offense and because he has unsupervised contact with the girls, it is presumed that the girls are at significant risk, requiring modification. Subsection (1)(c) operates to shift the burden of production-in other words, it is a bursting bubble presumption. Thus, to overcome the presumption, Kyel was required only to present evidence tending to prove that Thomas was not a significant risk to the girls. If she presented such evidence, then the presumption disappeared and the district court, as trier of fact, was not required to find that Thomas was a significant risk. Instead, the court was called upon to weigh the evidence presented and come to its own conclusion.

         Both the district court and the Court of Appeals found that Kyel overcame the presumption of significant risk. Both courts referenced Thomas' rehabilitative treatment, the lack of any reports or suspicion of sexual offenses since 2002, the [294 Neb. 435] girls' testimony, and Schwan's testimony. Specifically, those courts considered Schwan's statements that the girls had not reported any "grooming behaviors" and that she had trained Kyel and the girls about red flags.

         This evidence met Kyel's burden to produce evidence. Thomas' apparent commitment to rehabilitation, the substantial passage of time since his conviction, and the lack of any allegations against him since his release all tend to mitigate a risk of recidivism. Thus, the § 43-2933(1)(c) presumption disappeared and the district court was entitled to make factual findings free from any mandatory presumption.

         Robert argues that the presumption was not overcome, because the district court should not have given so much weight to Schwan's testimony. But, as noted, the 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[;] the burden-of-production determination necessarily precedes the credibility-assessment stage."[26]

         We therefore conclude that Kyel overcame the presumption of subsection (1)(c), and Robert's first assignment of error is without merit.

         3. Modification of Custody

         In his second assignment of error, Robert argues that the district court erred by denying his counterclaim for modification. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court.[27] Under ยง ...


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