Roth v. Marcoe (321 Neb. 983): Implied “More Appropriate Forum” Determination Under § 42-364(5) and the Limits of Incarceration/Contact Barriers as “Just Cause” Against Abandonment

I. Introduction

Parties: Jami L. Roth, now known as Jami L. Sunde (appellee/mother), and Kristopher P. Marcoe (appellant/father).

Posture: The Nebraska Supreme Court reviewed a district court order terminating the father’s parental rights to two minor children under Nebraska’s termination statutes.

Key issues:

  • Forum transfer under Neb. Rev. Stat. § 42-364(5) (Cum. Supp. 2024): Whether the district court was required to transfer the termination case to the juvenile court absent a “specific finding” that the district court was a “more appropriate forum.”
  • Termination merits: Whether clear and convincing evidence supported termination on abandonment under Neb. Rev. Stat. § 43-292(1) (Reissue 2016), and whether termination was in the children’s best interests (including the associated unfitness/forfeiture inquiry).
  • Alternative relief: Whether the district court should have modified custody/parenting time instead of terminating rights.
  • Contempt: Whether mother’s alleged interference with telephone/video contact and in-person visitation warranted civil contempt, and whether that dispute remained justiciable after termination.

Holding: The Nebraska Supreme Court affirmed. The father’s forum argument failed under existing authority; abandonment and best interests were proven by clear and convincing evidence; the requested “modify instead of terminate” alternative did not defeat termination; and the contempt dispute was moot once termination was affirmed.

II. Summary of the Opinion

  • Forum (§ 42-364(5)): The Court held the district court did not err by proceeding rather than transferring to juvenile court. Relying on Joyce S. v. Frank S. and R.D.N. v. T.N., the Court treated the district court’s decision to proceed—against a backdrop of many years of prior district-court litigation—as sufficient to support the “more appropriate forum” determination, especially where the father did not move for transfer or otherwise raise the issue below.
  • Statutory ground—abandonment (§ 43-292(1)): The undisputed lack of contact for the six months prior to filing satisfied the temporal element, and the broader record showed a settled pattern of minimal, sporadic efforts. The Court rejected excuses based on incarceration or alleged difficulty contacting mother.
  • Best interests/unfitness/forfeiture: The Court found termination in the children’s best interests, emphasizing the father’s limited historical involvement, long absence, recency/uncertainty of sobriety, extensive criminal history, and evidence of no beneficial parent-child relationship and the children’s lack of desire for contact.
  • Contempt: After affirming termination, the Court held the contempt dispute—seeking enforcement of prior custody/parenting time orders—was moot because termination severed the father’s parental rights and eliminated the requisite continuing personal interest.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Standards of review

  • Benjamin S. v. Crystal S. (313 Neb. 799, 986 N.W.2d 492 (2023)) supplied the termination appellate standard: review is de novo on the record, while giving weight to the trial court’s credibility assessments when evidence conflicts. This framework mattered because disputed facts (e.g., contact efforts, reasons for non-contact) turned heavily on credibility.
  • Leaf Supreme Prods. v. Bachman (318 Neb. 751, 18 N.W.3d 564 (2025)) provided the three-part civil contempt standard (law de novo; fact findings clear error; contempt/sanction abuse of discretion). The Court ultimately did not apply it in depth because it found the contempt issue moot after termination.

2. Forum transfer under § 42-364(5)

  • Joyce S. v. Frank S. (6 Neb. App. 23, 571 N.W.2d 801 (1997), disapproved on other grounds, Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998)) influenced the Court’s conclusion that an explicit, separately-litigated “finding” is not invariably required on the face of the record, where the circumstances support that the district court is the more appropriate forum.
  • R.D.N. v. T.N. (218 Neb. 830, 359 N.W.2d 777 (1984), disapproved on other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002)) supported the notion that extensive prior district court proceedings can make it “apparent from the record” that district court retention is reasonable.
  • The Court also cited a line of Court of Appeals cases—Worm v. Worm, Wright v. Wright, Dunham v. Dunham, Kitsmiller v. Kitsmiller, and In re Interest of Afiniti R.—for the practical proposition that parties generally must move for a forum determination/transfer under § 42-364.
  • 132 Ventures v. Active Spine Physical Therapy (318 Neb. 64, 13 N.W.3d 441 (2024)) grounded the Court’s waiver-like rationale: a litigant cannot “silently tolerate error, gamble on a favorable result, and then complain that one guessed wrong.”

3. Termination doctrine: abandonment and best interests/unfitness

  • In re Interest of Alec S. (294 Neb. 784, 884 N.W.2d 701 (2016)) framed the two-part termination requirement: (1) a statutory ground under § 43-292 and (2) best interests—both by clear and convincing evidence.
  • State v. Barnes (317 Neb. 517, 10 N.W.3d 716 (2024)) supplied the definition of “clear and convincing evidence” as producing a firm belief or conviction in the factfinder.
  • In re Interest of Isabel P. et al. (293 Neb. 62, 875 N.W.2d 848 (2016)) supplied the operative definition of abandonment and the principle that the six-month period under § 43-292(1) is not considered “in a vacuum”—courts may evaluate conduct before/after to discern intent.
  • Kenneth C. v. Lacie H. (286 Neb. 799, 839 N.W.2d 305 (2013)) established that the six-month period is measured by counting back six months from the filing date.
  • In re Interest of Gabriella H. (289 Neb. 323, 855 N.W.2d 368 (2014)) was pivotal to rejecting “incarceration as insulation”: incarceration alone is not a basis for termination, but it does not shield a parent when clear and convincing evidence otherwise supports termination.
  • In re Interest of R.T. & A.T. (Nos. A-23-806, A-23-808, 2024 WL 4355594 (Neb. App. Oct. 1, 2024) (selected for posting to court website)) supported the Court’s view that a parent must pursue “a variety of actions” to locate/contact children; a custodial parent’s move or contact obstacles do not automatically constitute “just cause.”
  • In re Interest of Justine J. & Sylissa J. (288 Neb. 607, 849 N.W.2d 509 (2014)) and Kenneth C. v. Lacie H. reinforced that minimal, sporadic, or unsubstantial contact efforts can constitute abandonment.
  • Wayne G. v. Jacqueline W. (288 Neb. 262, 847 N.W.2d 85 (2014)) allowed the Court to avoid analyzing additional statutory grounds once one ground (abandonment) was proven.
  • Best-interests and constitutional framing relied on In re Interest of Mateo L. et al. (309 Neb. 565, 961 N.W.2d 516 (2021)) (constitutional protection; presumption favoring parental relationship; unfitness/forfeiture requirements) and In re Interest of Joel T. et al. (ante p. 106, 32 N.W.3d 640 (2026)) (best interests is future-focused).
  • The father’s reliance on Morse v. Olmer (No. A-23-1028, 2024 WL 5220687 (Neb. App. Dec. 26, 2024) (selected for posting to court website)) was addressed and distinguished: the Court acknowledged rehabilitation evidence but emphasized the factual gaps here (no beneficial relationship; long absence; recency of sobriety; criminal history).
  • In re Interest of Justin H. et al. (18 Neb. App. 718, 791 N.W.2d 765 (2010)) was used by comparison to show how child statements can support findings about the quality of the parent-child relationship (whether beneficial or not), undercutting the father’s claim that the daughter’s testimony lacked “sound reasoning.”
  • In re Interest of Bosileo D. et al. (ante p. 490, 35 N.W.3d 434 (2026)) supported the Court’s rejection of the notion that children living with the other parent must “await uncertain parental maturity” before termination can occur.

4. Mootness of contempt after termination

  • In re Interest of Amber G. et al. (250 Neb. 973, 554 N.W.2d 142 (1996), disapproved on other grounds, In re Interest of Lilly S. & Vincent S., 298 Neb. 306, 903 N.W.2d 651 (2017)) and In re Interest of Giavonna G. (23 Neb. App. 853, 876 N.W.2d 422 (2016)) supported the proposition that termination is a “final and complete severance” removing the “entire bundle of parental rights,” which in turn eliminates the continuing stake in enforcing pre-termination parenting orders.
  • Burbank v. Evnen (ante p. 65, 32 N.W.3d 612 (2026)) anchored the general mootness principle requiring a present personal interest in the controversy.

B. Legal Reasoning

1. § 42-364(5) “more appropriate forum”: implied determination + preservation

The father argued the district court lacked the required “specific finding” to retain jurisdiction rather than transfer to juvenile court. The Supreme Court’s analysis proceeded in two steps:

  • Record-based appropriateness: Consistent with Joyce S. v. Frank S. and R.D.N. v. T.N., the Court treated the case history (over seven years of district court proceedings, prior findings relevant to parenting, and the district court’s deep familiarity with the family’s litigation) as adequate support that the district court was the “more appropriate forum.”
  • Failure to raise the issue below: The Court emphasized that the father did not file a motion or otherwise ask the district court to determine the forum question. Citing the historical approach in cases like Worm v. Worm and the “no silent tolerance” principle from 132 Ventures v. Active Spine Physical Therapy, the Court reinforced that forum-transfer objections under § 42-364(5) are practically—and often procedurally—driven by party invocation rather than appellate ambush.

Net effect: The decision tightens the practical rule that, absent a timely request, appellate courts will be reluctant to fault a district court for proceeding—especially when the record demonstrates a rational basis for retention (long procedural history and judicial familiarity).

2. Abandonment: “just cause” is not established by incarceration or imperfect contact information

The Court applied the abandonment definitions from In re Interest of Isabel P. et al. and the six-month measurement rule from Kenneth C. v. Lacie H.. The key reasoning points were:

  • Undisputed six-month noncontact: The father conceded he had no contact in the six months immediately preceding the complaint.
  • Credibility and alternatives: The father offered varying explanations (no number/address; prison limitations; alleged counsel action). The mother testified her email/address and her husband’s number were stable, family members had her new number, and she received no communications. The district court implicitly credited mother, and under Benjamin S. v. Crystal S. the Supreme Court gave weight to that credibility determination.
  • Reasonable steps expected: Echoing In re Interest of R.T. & A.T., the Court emphasized the father could have sought court assistance to arrange contact, undercutting “just cause.”
  • Incarceration is not a shield: Applying In re Interest of Gabriella H., incarceration did not insulate him from abandonment findings where the broader record showed minimal, sporadic efforts and long-term disengagement.
  • Conduct beyond the six months: In line with In re Interest of Isabel P. et al., the Court looked at the years-long pattern: the father had not had in-person visitation for roughly 4½ years; failed to comply with drug-testing requirements to reinstate parenting time until long after filing; and did not pay support for extended periods—supporting a “settled purpose” to forgo parental obligations.

3. Best interests: future-facing inquiry plus constitutional presumption, rebutted by forfeiture/unfitness facts

The Court reiterated that the statutory ground is backward-looking, but best interests is forward-looking (In re Interest of Joel T. et al.). It then applied the constitutional and doctrinal framework from In re Interest of Mateo L. et al.:

  • High bar: Because parental rights are constitutionally protected, the presumption favors maintaining the parent-child relationship unless unfitness or forfeiture is shown.
  • Rebuttal evidence: The Court found clear and convincing evidence rebutting the presumption based on (i) lengthy absence and lack of meaningful relationship, (ii) recency/uncertainty of sobriety (including prior relapse history), (iii) extensive criminal history and its impact on the children’s sense of stability/safety, and (iv) evidence the children did not want a relationship and were bonded to mother’s husband as a father figure.
  • Distinguishing rehabilitation cases: While acknowledging rehabilitation evidence (as appears in cases like Benjamin S. v. Crystal S. and Morse v. Olmer), the Court emphasized that rehabilitation alone does not compel a best-interests finding when the relational and stability factors point the other way—particularly where the children’s lived experience reflects a long-term lack of parenting.

4. “Modify custody instead of terminate”: not a substitute for disproving best interests/grounds

The father urged “therapeutic parenting time” as an equitable alternative. The Court rejected the argument in a straightforward way: where clear and convincing evidence establishes a statutory ground and best interests, the district court does not err by choosing termination rather than fashioning a less drastic custody/parenting modification. The opinion’s reasoning aligns with its broader theme (also reflected in In re Interest of Bosileo D. et al.) that children need not wait indefinitely for a parent’s hoped-for maturity.

5. Contempt becomes moot after termination

The father sought contempt for alleged denial of phone/video contact and refusal to resume visitation despite a negative hair follicle test. The Supreme Court held the issue moot after affirming termination: termination removes the “entire bundle of parental rights” (In re Interest of Amber G. et al.; In re Interest of Giavonna G.), so the father no longer had a present personal interest in enforcing the pre-termination parenting orders (Burbank v. Evnen).

C. Impact

1. Practical rule on § 42-364(5): raise transfer early, or expect affirmance

This case reinforces a practical (and litigation-driving) takeaway: if a party believes juvenile court is the statutorily preferred forum once termination is “placed in issue,” the party should timely request a forum determination or transfer. Appellate review is unlikely to rescue a litigant who did not raise the issue below, particularly where the district court has extensive history with the family and the record supports retention.

2. Abandonment litigation: “contact obstacles” must be met with affirmative legal and practical steps

The opinion underscores that claimed barriers (incarceration, changed phone numbers, lack of response) will not necessarily constitute “just cause” if the parent failed to pursue available avenues such as moving the court for assistance, using known addresses/emails, or leveraging stable contacts. The Court’s reliance on In re Interest of R.T. & A.T. highlights an expectation of problem-solving efforts—not just explanations.

3. Best interests: rehabilitation evidence competes with (not replaces) relational reality

Roth v. Marcoe clarifies—by distinguishing Morse v. Olmer—that improved behavior, sobriety, employment, and therapy participation do not automatically overcome best-interests concerns when the child-parent relationship is essentially absent, the child does not desire contact, and stability exists in the custodial household.

4. Post-termination litigation: contempt/enforcement disputes commonly evaporate

The mootness ruling signals that parties should expect enforcement disputes over pre-termination parenting orders to become nonjusticiable once termination is affirmed (absent some separate, continuing legal consequence). Practitioners should litigate contempt with an eye toward whether termination is likely to end the controversy.

IV. Complex Concepts Simplified

  • “De novo on the record” review: The appellate court re-examines the evidence independently, but still gives weight to the trial judge’s ability to observe witness demeanor when testimony conflicts.
  • “Clear and convincing evidence”: A high level of proof—more than “more likely than not,” less than “beyond a reasonable doubt”—that produces a firm belief the claim is true.
  • “Abandonment” under § 43-292(1): Not just physical absence; it is the intentional withholding of parental presence and obligations without a sufficient excuse, reflecting an intent to forgo parental rights and duties. Courts can look beyond the exact six-month window to determine intent.
  • “Best interests” and “unfitness/forfeiture”: Best interests focuses on the child’s future well-being. Because parental rights are constitutionally protected, the law presumes a child benefits from a parental relationship unless evidence shows the parent is unfit or has forfeited the right (often through conduct showing inability/unwillingness to parent without detriment to the child).
  • Mootness: A court will not decide an issue if the requested ruling would no longer matter legally. Once rights are terminated, disputes about enforcing former visitation orders usually no longer have a live legal effect for the terminated parent.

V. Conclusion

Roth v. Marcoe affirms termination of parental rights on abandonment and best interests while delivering two practical procedural clarifications: (1) under § 42-364(5), a district court’s retention of a termination case may be upheld without an express “more appropriate forum” finding where the record (including years of prior district court proceedings) supports retention—particularly when the objecting party did not timely seek transfer; and (2) contempt disputes about enforcing pre-termination parenting orders become moot once termination is affirmed.

Substantively, the opinion reinforces that incarceration and contact difficulties do not automatically supply “just cause” defeating abandonment when reasonable legal steps to maintain contact were not pursued, and that late-breaking rehabilitation does not override the best-interests calculus where children lack a beneficial relationship with the parent and stability exists elsewhere.