Timothy T. v. Shireen T.

at the November 17 hearing. The county court did not err in
excluding exhibit 10 from evidence at trial or in its interpreta-
tion and application of Vasiliades’ testimony.
The county court’s decisions conform to the law, are supported
by competent evidence, and are neither arbitrary, capricious, nor
unreasonable. The district court did not err in affirming kuhl’s
“judgment of conviction and sentence.”
A ffirmed .
timothy t., Appellee , v . shireen t., AppellAnt .
741 N.W.2d 452
Filed November 6, 2007. 	No. A-07-106.
1. Parental Rights: Evidence: Proof: Words and Phrases. In cases of termina-
tion of parental rights under Neb. Rev. Stat. § 42-364(7) (Cum. Supp. 2006), the
standard of proof must be by clear and convincing evidence. Clear and convincing
evidence is that amount of evidence which produces in the trier of fact a firm
belief or conviction about the existence of a fact to be proved.
2. Parental Rights: Appeal and Error. In reviewing a termination of parental rights
case held in district court, an appellate court reviews the record de novo to deter-
mine whether the district court abused its discretion.
3. Parental Rights. Although termination of parental rights cannot be based solely
on the fact that a parent has been incarcerated, courts may consider the attendant
circumstances which are occasioned by incarceration, and when the aggregate of
the circumstances indicates clearly and convincingly that the children’s best inter-
ests dictate termination of parental rights, such is proper.
4. Parental Rights: Appeal and Error. With regard to cases involving termination
of parental rights, when a parent whose parental rights are at issue has been incar-
cerated, an appellate court will consider the nature of the crime committed, as well
as the person against whom the criminal act was perpetrated.
5. Parental Rights: Abandonment: Intent: Words and Phrases. Parental aban-
donment has been described as a parent’s intentionally withholding from a child,
without just cause or excuse, the parent’s presence, care, love, protection, mainte-
nance, and opportunity for the display of parental affection for the child.
6. Abandonment: Intent. The question of abandonment is largely one of intent, to
be determined in each case from all of the facts and circumstances.
7. Modification of Decree. In a domestic relations case, if a material change
in circumstances has occurred, a former decree may be modified in light of
those circumstances.
Appeal from the District Court for hamilton County: michAel
oWens, Judge. Affirmed.
142 	16 NeBRASkA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

kevin V. Schlender for appellant.
Scott D. Grafton, of Svehla, Thomas, Rauert & Grafton, P.C.,
for appellee.
Rachel A. Daugherty, of Lauritsen, Brownell, Brostrom,
Stehlik, Myers & Daugherty, P.C., L.L.O., guardian ad litem.
sievers , cArlson, and cAssel, Judges.
cArlson, Judge.
INTRODUCTION
Shireen T. appeals from an order of the district court for
hamilton County terminating her parental rights to Sharisa T. in
an action to modify a decree of dissolution. On appeal, Shireen
argues the court erred in finding that there was sufficient evi-
dence to establish she intentionally abandoned or neglected
Sharisa and that it is in Sharisa’s best interests to terminate her
parental rights to Sharisa. Shireen also contends that no mate-
rial change in circumstances exists to justify a modification
of the decree of dissolution. For the reasons set forth below,
we affirm.
BACkGROUND
Timothy T. and Shireen’s marriage was dissolved by a
decree of dissolution entered by the district court on September
27, 1999. The court awarded Shireen custody of the parties’
three minor children—a son, born October 22, 1986; another
son, born December 28, 1989; and Sharisa, born May 2,
1998—subject to visitation for Timothy. On December 25,
1999, Shireen was arrested for conspiring to murder Timothy.
In February 2000, the court entered a temporary order grant-
ing Timothy custody of the children, with visitation rights
for Shireen.
In August 2001, the court convicted Shireen of conspiring
to murder Timothy, and in September, the court sentenced
Shireen to 8 to 15 years in prison. Shireen appealed to the
Nebraska Supreme Court, which affirmed Shireen’s conviction
and sentence. See State v. Tyma, 264 Neb. 712, 651 N.W.2d 582
(2002). The record shows that if Shireen does not lose any good
time, her release date is February 8, 2009.
TIMOThY T. v. ShIReeN T. 	143
Cite as 16 Neb. App. 142

On October 24, 2001, the court modified the decree and
granted Timothy legal custody of the children; pursuant to the
parties’ stipulation, the boys were placed with Shireen’s parents
and Sharisa was placed with Timothy. The parties also stipulated
that Shireen would not have visitation with Sharisa.
On March 6, 2006, Timothy filed a complaint to terminate
Shireen’s parental rights. hearings were held on September 12
and 20 and October 11. Lisa Pattison, a clinical psychologist,
testified on Timothy’s behalf. Pattison testified that in 2004,
she observed Sharisa, Timothy, and Pam T., Timothy’s wife,
together on two occasions. Pattison testified that Sharisa has
developed secure attachments to Timothy. Pattison also testi-
fied that Sharisa calls Pam “mommy” and is securely attached
to Pam. Pattison testified that Sharisa has not had contact with
Shireen since May or June 2001 and that this lack of contact
has detrimentally impacted Sharisa’s relationship with Shireen.
Pattison testified that Sharisa has no real memory of Shireen.
Pattison 	testified 	that 	she 	interviewed 	Shireen 	and 	that
Shireen denied the conspiracy charges against her and did not
indicate any remorse. Pattison testified that it is in Sharisa’s
best interests to reside with Pam and Timothy on a permanent
basis. Pattison testified that she would be concerned if Shireen
had visitation with Sharisa once Shireen is released from prison,
because Shireen lacks insight regarding how her conviction and
incarceration have negatively impacted Sharisa.
Pattison testified that she was also concerned given Shireen’s
history 	of 	emotional 	instability 	and 	“homicidal, 	suicidal
thoughts.” Pattison testified that Shireen had been suicidal on
two prior occasions and had previously been diagnosed with
major depression and bipolar disorder.
Pattison testified that she was concerned that Shireen would
not seek treatment after her release from prison and would have
a mental breakdown. Pattison also testified that Shireen has a
past history of turning the children against Timothy.
Timothy testified that he married Pam on November 28,
2003. Timothy testified that Sharisa has resided with Timothy
and Pam consistently since January 2000. Timothy testified
that after he was awarded custody, Shireen had visitation with
Sharisa, but that in May or June 2001, he stopped Sharisa’s
144 	16 NeBRASkA APPeLLATe RePORTS

visits with Shireen. Timothy testified that he did so because
Sharisa came home after a visit with Shireen and said that
Shireen was taking pictures of Sharisa while Sharisa was naked.
Timothy testified that Sharisa had not seen Shireen since then.
Timothy testified that he and Sharisa are “as close as a father
[and] daughter can be.”
Timothy testified that since Shireen became incarcerated, she
has never provided any financial support for Sharisa, and that
since June 2001, Sharisa had received three cards from Shireen.
Timothy testified that Shireen had never called Sharisa, nor
provided any emotional support for Sharisa in the previous 5
years. Timothy testified that in October 2001, Shireen volun-
tarily agreed to not have visitation with Sharisa. Timothy testi-
fied that if Shireen’s parental rights were terminated, Pam would
adopt Sharisa.
Timothy testified that Sharisa had not seen her brothers since
Thanksgiving 2001. Timothy testified that he has no contact
with his sons, because they blame him for Shireen’s incarcera-
tion. Timothy testified that Shireen’s parents have not promoted
his relationship with his sons. Timothy testified that it is in
Sharisa’s best interests to be adopted by Pam.
The trial judge also spoke to Sharisa in chambers. Sharisa
stated that she knows very little about Shireen, whom she
termed her “birth mom.” Sharisa stated that the court proceed-
ings were “to get [her] birth mom’s rights taken away.” Sharisa
stated that she wanted Pam to adopt her, but did not know why.
When Sharisa was asked whether she had ever wanted to see
Shireen, Sharisa stated, “Not really. . . . I haven’t really been
thinking about her.”
Shireen testified that before her visitation with Sharisa was
stopped, Shireen was very close to Sharisa and had a strong
bond with her. Shireen testified that during the time she had
visitation with Sharisa, Shireen began to have concerns regard-
ing Timothy’s care of Sharisa. Shireen testified that she noticed
bruises on Sharisa’s body, Sharisa appeared dirty and thin, and
she was hungry.
Shireen testified that because of Sharisa’s condition, she took
Sharisa to an emergency room and the police were contacted,
in addition to social services. Shireen testified that nothing ever
TIMOThY T. v. ShIReeN T. 	145
Cite as 16 Neb. App. 142

came from any of the subsequent investigations. Shireen testi-
fied that Timothy stopped her visits with Sharisa in May 2001,
because Shireen had taken pictures of the bruises on Sharisa’s
body. Shireen testified that prior to this time, she exercised her
visitation with Sharisa consistently.
Shireen testified that she did not agree to give up her visita-
tion rights with Sharisa in October 2001. Shireen testified that
when she became aware of the order stating that she would no
longer have visits with Sharisa, Shireen contacted her attorney
on multiple occasions, asking him to “correct the mistake.”
Shireen testified that she also contacted the court directly.
Shireen testified that she did not appeal the order, because she
did not know she could. Shireen testified that she continued
to seek visitation with Sharisa, contacting several attorneys
by telephone and writing approximately 20 letters to different
people and organizations. Shireen testified that she also filed
a cross-petition for visitation when Timothy filed to terminate
her parental rights. Shireen testified that her cross-petition was
stricken by the court.
Shireen testified that she sent Sharisa cards from 2001 until
February 2004 for “Valentine’s Day and Christmas and birth-
days.” Shireen testified that she also tried to call Sharisa,
but that Timothy’s telephone did not accept her collect calls.
Shireen testified that she stopped sending Sharisa cards, because
she did not know whether Sharisa was receiving them.
Shireen testified that while in prison, she took several
classes, including classes on criminal behavior, domestic vio-
lence, stress and anxiety, and cognitive thinking skills, in addi-
tion to three classes on building positive relationships and a
parenting class.
Shireen testified that she never intended to abandon or neglect
Sharisa. Shireen testified that at the time of the divorce, she
experienced depression and was treated for it. Shireen stated
that she did not attempt suicide. Shireen testified that she is no
longer depressed and is not on any medications.
Carol Denton, a licensed mental health practitioner, testi-
fied that she counseled Shireen for depression and anxiety
from 1999 to 2001. Denton testified that during that time, she
observed Shireen with Sharisa, and Denton described Shireen as
146 	16 NeBRASkA APPeLLATe RePORTS

very nurturing and loving toward Sharisa. Denton testified that
Sharisa appeared bonded and attached to Shireen.
Denton testified that because Sharisa’s contact with Shireen
“ended abruptly” when Shireen became incarcerated, Sharisa
was 	adversely 	affected. 	Specifically, 	Denton 	testified 	that
because Sharisa was so young when her contact with Shireen
ended, Sharisa may be prone to develop extreme rage, cry-
ing, and depression, and that depression could remain an issue
throughout Sharisa’s life. Denton testified that typically, a child
who is separated from a parent at a young age faces difficulties
with each new stage of development.
Denton testified that even if the child subsequently forms a
new bond with a competent caregiver, that bond is less secure
than the child’s relationship with his or her parent. Denton
testified that a child could be provided permanency without an
adoption and that excluding a person a child is attached to is
psychologically damaging to the child. Denton testified that it
would not damage Sharisa psychologically to begin visitation
with Shireen again. Denton testified that all children separated
from a primary caregiver will experience rage and depression
at some point in their lives. On redirect examination, Timothy
testified that he had never seen Sharisa in a rage.
In an order filed December 28, 2006, the district court modi-
fied the decree of dissolution and terminated Shireen’s parental
rights to Sharisa. Specifically, the trial court stated that having
considered the nature of Shireen’s crime, the fact that the vic-
tim of the crime was Sharisa’s father, and the fact that Shireen
is incarcerated, which prevents her from parenting Sharisa in
an appropriate fashion, there is clear and convincing evidence
to conclude that Shireen either abandoned or neglected Sharisa
in a manner as to require termination of her parental rights.
The trial court also found that termination of Shireen’s parental
rights is in Sharisa’s best interests. Shireen appeals.
ASSIGNMeNTS OF eRROR
On appeal, Shireen contends that the district court erred in
finding (1) that there was clear and convincing evidence to
establish that she intentionally abandoned or neglected Sharisa;
(2) that it is in Sharisa’s best interests to terminate Shireen’s
TIMOThY T. v. ShIReeN T. 	147
Cite as 16 Neb. App. 142

parental rights; and (3) that there was a material change in cir-
cumstances sufficient to justify a modification of the decree of
dissolution, terminating her parental rights.
ANALYSIS
Termination.
On appeal, Shireen contends that the district court erred in
finding that there was clear and convincing evidence to establish
that she intentionally abandoned or neglected Sharisa. Neb. Rev.
Stat. § 42-364(7) (Cum. Supp. 2006) concerns termination of
parental rights in a dissolution action and states in part:
The court may terminate the parental rights of one or both
parents after notice and hearing when the court finds such
action to be in the best interests of the minor child and it
appears by the evidence that one or more of the following
conditions exist: (a) The minor child has been abandoned
by one or both parents; (b) One parent has or both par-
ents have substantially and continuously or repeatedly
neglected the minor child and refused to give such minor
child necessary parental care and protection.
[1,2] 	In 	cases 	of 	termination 	of 	parental 	rights 	under
§ 42-364(7), the standard of proof must be by clear and con-
vincing evidence. Clear and convincing evidence is that amount
of evidence which produces in the trier of fact a firm belief or
conviction about the existence of a fact to be proved. 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). In reviewing a termination of parental rights case held
in district court, an appellate court reviews the record de novo
to determine whether the district court abused its discretion.
Worm v. Worm, 6 Neb. App. 241, 573 N.W.2d 148 (1997).
In the instant case, the trial court stated that having con-
sidered the nature of the crime, the fact that the victim of
Shireen’s crime was Sharisa’s father, and the fact that Shireen’s
incarceration prevents her from parenting Sharisa in an appro-
priate fashion, there is clear and convincing evidence to con-
clude that Shireen either abandoned or severely neglected
Sharisa in a manner as to require termination of her paren-
tal rights.
148 	16 NeBRASkA APPeLLATe RePORTS

[3] Although termination of parental rights cannot be based
solely on the fact that a parent has been incarcerated, courts
may consider the attendant circumstances which are occasioned
by incarceration, and when the aggregate of the circumstances
indicates clearly and convincingly that the children’s best inter-
ests dictate termination of parental rights, such is proper. In re
Interest of Brettany M. et al., 11 Neb. App. 104, 644 N.W.2d
574 (2002).
[4] With regard to cases involving termination of parental
rights, Nebraska appellate courts have declared that when a
parent whose parental rights are at issue has been incarcerated,
we consider the nature of the crime committed, as well as the
person against whom the criminal act was perpetrated. Conn v.
Conn, 15 Neb. App. 77, 722 N.W.2d 507 (2006).
In Conn v. Conn, a father, Bobby Conn, conspired to mur-
der his wife, Alicia Conn, in front of the couple’s young child.
After Bobby was convicted, he moved for visitation with the
child, which Alicia opposed. The trial court denied Bobby visi-
tation. After reviewing the evidence, this court affirmed the trial
court’s decision, stating, “While it is natural to focus on Alicia
as the object of Bobby’s crime, the subject child was also a vic-
tim of Bobby’s scheme. had Bobby’s conspiracy achieved its
end, the child would have been forever deprived of her mother.”
Id. at 84, 722 N.W.2d at 513.
Similarly, in the instant case, had Shireen’s conspiracy to
murder Timothy been successful, Sharisa would have been for-
ever deprived of Timothy’s love and affection. The record shows
that Shireen became incarcerated in 2001, when Sharisa was
approximately 3 years old, and that Shireen is not likely to be
released from prison until 2009, when Sharisa is 11 years old.
Shireen has not seen Sharisa since the middle of 2001, and
in the October 2001 modification granting Timothy custody
of Sharisa, the parties’ stipulated that Shireen would not have
visitation with Sharisa. Since 2001, Shireen’s contact with
Sharisa has been limited to three birthday cards sent by Shireen
to Sharisa.
Although Shireen claims that she never intended to abandon
Sharisa, in In re Interest of B.A.G., 235 Neb. 730, 735, 457
N.W.2d 292, 297 (1990), the Nebraska Supreme Court noted
TIMOThY T. v. ShIReeN T. 	149
Cite as 16 Neb. App. 142

that the father’s actions which resulted in incarceration were
“every bit as voluntary as if he had purchased a ticket for a
6-, 7-, or 8-year trek into Siberia” and that the father had just
as effectively placed himself in a position where he could not
possibly offer his presence, care, love, protection, maintenance,
and opportunity for displaying parental affection.
[5,6] Parental abandonment has been described as a parent’s
intentionally withholding from a child, without just cause or
excuse, the parent’s presence, care, love, protection, mainte-
nance, and opportunity for the display of parental affection for
the child. In re Interest of Deztiny C., 15 Neb. App. 179, 723
N.W.2d 652 (2006). The question of abandonment is largely
one of intent, to be determined in each case from all of the facts
and circumstances. In re Interest of Theodore W., 4 Neb. App.
428, 545 N.W.2d 119 (1996).
In the instant case, Shireen’s incarceration has similarly
made it nearly impossible for her to provide for any of Sharisa’s
needs for at least 8 years of Sharisa’s life. By conspiring to mur-
der Timothy, Shireen has effectively placed herself in a position
where she cannot possibly offer her presence, care, love, pro-
tection, maintenance, and opportunity for displaying parental
affection. See In re Interest of Brettany M. et al., 11 Neb. App.
104, 644 N.W.2d 574 (2002). Furthermore, the record shows
that Shireen continues to deny the conspiracy charges against
her and does not indicate any remorse. Shireen has claimed that
she was “setup” by Timothy, and there is evidence that Shireen
blames Timothy for the fact that she is in prison.
Shireen cannot now complain that she did not have the oppor-
tunities to provide for Sharisa because of her incarceration,
when it was her own conduct that placed her in that position.
For these reasons, we conclude that the evidence clearly and
convincingly established that Shireen either abandoned Sharisa
or substantially and continuously or repeatedly neglected and
refused to give Sharisa necessary parental care and protection,
justifying the termination of Shireen’s parental rights.
Best Interests.
Shireen argues that the trial court erred in finding that ter-
mination of her parental rights is in Sharisa’s best interests.
150 	16 NeBRASkA APPeLLATe RePORTS

Pattison testified that Sharisa has developed secure attachments
to Timothy and Pam. Pattison also testified that Sharisa calls
Pam “mommy.” Pattison testified that Sharisa has not had con-
tact with Shireen since May or June 2001 and that this lack of
contact has detrimentally impacted Sharisa’s relationship with
Shireen. Pattison testified that Sharisa has no real memory
of Shireen.
Pattison testified that it is in Sharisa’s best interests to reside
with Pam and Timothy on a permanent basis. Pattison testi-
fied that she would be concerned if Shireen had visitation with
Sharisa, because Shireen has no insight into how her conviction
and resulting incarceration have negatively impacted Sharisa.
Pattison testified that she was also concerned given Shireen’s
history 	of 	emotional 	instability 	and 	“homicidal, 	suicidal
thoughts.” Pattison testified that Shireen had been suicidal on
two prior occasions and had previously been diagnosed with
major depression and bipolar disorder.
Pattison testified that she was concerned that Shireen would
not seek treatment after her release from prison and would have
a mental breakdown. Pattison also testified that Shireen has a
past history of turning the children against Timothy.
The trial judge also spoke to Sharisa in chambers. Sharisa
stated that she knows very little about Shireen, whom she termed
her “birth mom.” Sharisa stated that the court proceedings were
“to get [her] birth mom’s rights taken away.” Sharisa stated that
she wanted Pam to adopt her. When Sharisa was asked whether
she had ever wanted to see Shireen, Sharisa stated, “Not really. .
. . I haven’t really been thinking about her.”
Given this evidence, we cannot say that the trial court abused
it discretion in finding that termination of Shireen’s parental
rights is in Sharisa’s best interests.
Material Change in Circumstances.
[7] Shireen also argues that no material change of circum-
stances exists sufficient to justify the modification of the disso-
lution decree. Shireen contends that at the time of the October
24, 2001, modification, the parties were well aware of Shireen’s
conviction and sentence and Timothy failed to present the court
with evidence which the court had been unaware of in October
TIMOThY T. v. ShIReeN T. 	151
Cite as 16 Neb. App. 142

2001. If, in a domestic relations case, a material change in cir-
cumstances has occurred, a former decree may be modified in
light of those circumstances. Worm v. Worm, 6 Neb. App. 241,
573 N.W.2d 148 (1997).
At the time of the last modification, Shireen was incarcer-
ated and was not seeking any visitation with Sharisa. Shireen is
now seeking to have visits with Sharisa. As previously stated,
Shireen continues to claim that she did not conspire to murder
Timothy, the crime of which she was convicted. Shireen’s con-
tinued denial clearly hinders the reestablishment of a relation-
ship between Shireen and Sharisa. Additionally, Sharisa testified
that she is not really interested in seeing Shireen after several
years apart, and the evidence shows that Sharisa has developed
a secure attachment to Pam over the last several years. These
changes are material and could not have been anticipated in
October 2001, when the trial court previously modified the
decree. See 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). Therefore, there have been
several material changes since the prior modification sufficient
to allow the court to modify the decree again.
CONCLUSION
After reviewing the record, we conclude the district court did
not err in finding that there was clear and convincing evidence to
establish Shireen intentionally abandoned or neglected Sharisa;
that it is in Sharisa’s best interests to terminate Shireen’s paren-
tal rights; and that there was a material change in circumstances
sufficient to justify a modification of the decree of dissolution,
terminating Shireen’s parental rights. The trial court’s order is
affirmed in all respects.
A ffirmed .
152 	16 NeBRASkA APPeLLATe RePORTS