Cami S. v. Neb. Dep't of Health & Human Servs. (In Re Issaabela R.) ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/18/2019 09:06 AM CDT
- 353 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE GUARDIANSHIP OF ISSAABELA R.
Cite as 27 Neb. Ct. App. 353
In re Guardianship of Issaabela R.,
a minor child.
Cami S., Guardian, appellant, v. Nebraska
Department of Health and Human
Services, appellee.
___ N.W.2d ___
Filed June 18, 2019. No. A-18-906.
1. Guardians and Conservators: Appeal and Error. Appeals of mat-
ters arising under the Nebraska Probate Code are reviewed for error on
the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
3. Constitutional Law: Parent and Child: Public Policy. Where a par-
ent’s constitutionally protected relationship with a child is not at issue,
both public policy and the Nebraska statutes require the case to be
determined by reference to the paramount concern in child custody dis-
putes—the best interests of the child.
4. Pleadings: Proof. Pleadings alone are not proof but mere allegations of
what the parties expect the evidence to show.
5. Pleadings: Trial: Evidence. Pleadings and their attachments which
are not properly admitted into evidence cannot be considered by the
trial court.
6. Evidence: Records: Appeal and Error. A bill of exceptions is the only
vehicle for bringing evidence before an appellate court; evidence which
is not made a part of the bill of exceptions may not be considered.
Appeal from the County Court for Saunders County:
C. Jo Petersen, Judge. Reversed and remanded for further
proceedings.
- 354 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE GUARDIANSHIP OF ISSAABELA R.
Cite as 27 Neb. Ct. App. 353
Jennifer D. Joakim for appellant.
No appearance for appellee.
R iedmann, A rterburn, and Welch, Judges.
R iedmann, Judge.
INTRODUCTION
Cami S. was appointed permanent guardian for the minor
child, Issaabela R., through a probate action. The county court
for Saunders County ultimately terminated the guardianship,
and Cami appeals that decision. We conclude that the evidence
was insufficient to support terminating the guardianship and
therefore reverse the county court’s order and remand the
cause for further proceedings.
BACKGROUND
Cami is the maternal grandmother of Issaabela, who was
born in 2015. The county court for Lancaster County appointed
Cami temporary guardian of Issaabela in March 2017 and
permanent guardian in August. Issaabela was removed from
Cami’s care in December and placed in the custody of the
Nebraska Department of Health and Human Services (DHHS)
due to allegations that Issaabela was exposed to abuse while
living with Cami. A juvenile court case with respect to
Issaabela and Cami was initiated in the county court for
Saunders County, sitting as a juvenile court, and the guardian-
ship matter was transferred to Saunders County upon a motion
filed by the guardian ad litem appointed for Issaabela.
On August 15, 2018, DHHS filed a motion to termi-
nate the probate guardianship. The motion alleged that Cami
had entered a “no contest” plea to the allegations raised in
the juvenile court petition, resulting in the adjudication of
Issaabela as to Cami under Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2016). The motion indicated that Issaabela remained
in the custody of DHHS and was placed in foster care, that
DHHS was seeking to terminate the probate guardianship in
- 355 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE GUARDIANSHIP OF ISSAABELA R.
Cite as 27 Neb. Ct. App. 353
order to pursue permanency through the juvenile court case,
and that Cami opposed terminating the guardianship.
A hearing before the county court was held on August 20,
2018. At the hearing, the court addressed issues related to a
separate juvenile case involving Issaabela’s sister, a motion
for bonding assessment filed by Cami in Issaabela’s juvenile
case, and DHHS’ motion to terminate the guardianship in the
probate case. The court also accepted documents whereby
Issaabela’s biological mother and father each relinquished
their parental rights to her. The county court, seeing “no basis”
to continue the probate guardianship, granted the motion to
terminate the guardianship. A written order to that effect was
filed that day. Cami timely appeals.
ASSIGNMENTS OF ERROR
Cami assigns, restated and renumbered, that the county
court erred in terminating the guardianship, because (1) the
evidence was insufficient to support terminating the guardian-
ship, (2) there was not sufficient notice of the hearing to all
interested parties, and (3) the termination of the guardianship
was not in the best interests of the child.
STANDARD OF REVIEW
[1,2] Appeals of matters arising under the Nebraska Probate
Code are reviewed for error on the record. In re Guardianship
of K.R., 26 Neb. Ct. App. 713, 923 N.W.2d 435 (2018). When
reviewing a judgment for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. Id.
ANALYSIS
Cami assigns that the evidence was insufficient to support
terminating the guardianship. We agree.
Any person interested in the welfare of a ward may peti-
tion for removal of a guardian on the ground that removal
would be in the best interests of the ward, and after notice and
- 356 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE GUARDIANSHIP OF ISSAABELA R.
Cite as 27 Neb. Ct. App. 353
hearing on a petition for removal, the court may terminate the
guardianship. Neb. Rev. Stat. § 30-2616 (Reissue 2016).
Cases regarding termination of guardianships generally
involve a biological or adoptive parent’s attempting to ter-
minate a guardianship in order to regain custody of his or
her child. Under those circumstances, the Nebraska Supreme
Court has held that the parental preference principle serves to
establish a rebuttable presumption that the best interests of the
child are served by reuniting the child with his or her parent.
In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238
(2004). Therefore, an individual who opposes the termination
of a guardianship bears the burden of proving by clear and con-
vincing evidence that the biological or adoptive parent either
is unfit or has forfeited his or her right to custody. Id. Absent
such proof, the constitutional dimensions of the relationship
between parent and child require termination of the guardian-
ship and reunification with the parent. Id.
[3] But where, as here, the rights of a biological or adop-
tive parent are not at issue, Cami concedes and we agree
that she does not possess the same constitutional interests
as a parent, and therefore, the parental preference doctrine
does not apply. Where a parent’s constitutionally protected
relationship with a child is not at issue, both public policy
and the Nebraska statutes require the case to be determined
by reference to the paramount concern in child custody dis-
putes—the best interests of the child. In re Estate of Jeffrey
B., 268 Neb. 761, 688 N.W.2d 135 (2004). Thus, the standard
for removal of a guardian of a minor pursuant to § 30-2616
is the best interests of the ward. See In re Estate of Jeffrey
B., supra. Accordingly, in the instant case, the county court
was authorized to remove Cami as guardian and terminate the
guardianship over Issaabela upon proof that doing so would
be in Issaabela’s best interests.
In guardianship termination proceedings involving a bio-
logical or adoptive parent, the parental preference principle
establishes a rebuttable presumption in favor of terminating
- 357 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE GUARDIANSHIP OF ISSAABELA R.
Cite as 27 Neb. Ct. App. 353
the guardianship; thus, the party opposing the termination of a
guardianship bears the burden of proving by clear and convinc-
ing evidence that the biological or adoptive parent is unfit or
has forfeited his or her right to custody. See In re Guardianship
of D.J., supra. Because the case at hand does not involve
a biological or adoptive parent, the rebuttable presumption
which shifts the burden of proof to the party opposing termina-
tion of the guardianship does not exist. Therefore, the burden
of proof in this case was on DHHS, as the moving party, to
establish that terminating the guardianship was in Issaabela’s
best interests.
At the August 20, 2018, hearing, the court addressed several
separate issues relevant to the three separate cases. Notably, in
addressing the separate juvenile cases involving Issaabela and
her sister, the county court was sitting as a juvenile court, and
when addressing the guardianship in the probate action, the
court was sitting as a county court.
In addressing the motion to terminate the guardianship,
Cami’s counsel explained that Cami would like the guard-
ianship to continue. The court stated that it saw no basis to
continue the guardianship, given that Issaabela’s parents had
relinquished their parental rights and Issaabela remained in the
custody of DHHS. When given the opportunity to be heard on
the motion, counsel for DHHS replied, “Your Honor, essen-
tially what I would say is what you’ve already said.” No evi-
dence was offered or received as to the motion, and the court
was not asked to take judicial notice of the existence of the
juvenile case or the contents of its file.
[4-6] We recognize that in its motion to terminate the
guardianship, DHHS made various allegations, including that
terminating the guardianship would allow Issaabela to obtain
permanency through the juvenile court case and that this was
in her best interests. However, pleadings alone are not proof
but mere allegations of what the parties expect the evidence to
show. In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261
(2017). Pleadings and their attachments which are not properly
- 358 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE GUARDIANSHIP OF ISSAABELA R.
Cite as 27 Neb. Ct. App. 353
admitted into evidence cannot be considered by the trial court.
Id. A bill of exceptions is the only vehicle for bringing evi-
dence before an appellate court; evidence which is not made a
part of the bill of exceptions may not be considered. Id. As a
result, we cannot consider allegations contained in a pleading
as substantive evidence of Issaabela’s best interests.
We also observe that Cami testified in support of her motion
for a bonding assessment in the juvenile case, and evidence
was received regarding the separate juvenile court case for
Issaabela’s sister. We do not consider that evidence, however,
because it was not introduced into evidence in connection with
the motion to terminate the guardianship. See Bailey v. First
Nat. Bank of Chadron, 16 Neb. Ct. App. 153, 741 N.W.2d 184
(2007) (appellate court did not consider exhibits introduced
in support of separate motions addressed at same hearing). As
a result, there was no evidence presented with respect to the
motion to terminate the guardianship.
Without any evidence, the county court was unable to make
a determination as to Issaabela’s best interests in order to
decide whether to grant DHHS’ motion. In evaluating the
court’s decision, we review for error on the record, and when
reviewing a judgment for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. See In re Guardianship of K.R., 26
Neb. Ct. App. 713, 923 N.W.2d 435 (2018). If the court’s decision
is based upon information from the juvenile case, there is no
indication that it took judicial notice of that information, and
that information is not contained in our record. See In re Estate
of Radford, supra.
The record before us is similar to that addressed in In re
Estate of Radford, supra. There, a hearing was held but no
sworn testimony was given and no exhibits were offered or
received into evidence. Although the court was asked to take
judicial notice of its file, it failed to identify what documents
it was noticing and did not mark and introduce into evidence
- 359 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
IN RE GUARDIANSHIP OF ISSAABELA R.
Cite as 27 Neb. Ct. App. 353
each document that it considered. On appeal, the Supreme
Court concluded that as a result, the only information avail-
able for review was the pleadings, the attachments to the
pleadings, and the court’s order. But because these were not
properly admitted into evidence, they could not be considered
by the trial court. Consequently, the Supreme Court reversed
and remanded because the trial court received no evidence
which would have proved the allegations in the motion before
it. See id.
Because there was no evidence before the court as to
Issaabela’s best interests vis-a-vis the guardianship, we con-
clude that the county court’s decision is not supported by
competent evidence. And because the deficiency in the record
is not the fault of the appellant, the proposition that an appel-
late court will affirm a lower court’s decision when the appel-
lant fails to present a record to support her errors is inappli-
cable. See In re Estate of Radford, 297 Neb. 748, 901 N.W.2d
261 (2017).
As the moving party, DHHS had the burden to provide suf-
ficient evidence to prove that terminating the guardianship
was in Issaabela’s best interests. See id. Its failure to adduce
any evidence was not the fault of Cami. To affirm the county
court’s decision because of the lack of evidence would reward
DHHS for failing to meet its burden. See id. We therefore
reverse the county court’s order terminating the guardianship
and remand the cause for further proceedings.
CONCLUSION
We conclude that the county court erred in failing to cre-
ate a record containing evidence to support its decision that
terminating the guardianship was in Issaabela’s best interests.
Because we find that the county court had insufficient evidence
to make its determination, we reverse the order terminating the
guardianship and remand the cause for further proceedings.
R eversed and remanded for
further proceedings.