In re Guardianship of K.R. ( 2018 )

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IN RE GUARDIANSHIP OF K.R.
Cite as 26 Neb. App. 713In re Guardianship of K.R., a minor child.
Heather R., appellant, v. M ark R. and
Cynthia R., Guardians, appellees.
___ N.W.2d ___
Filed December 31, 2018. No. A-17-846.
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. ____: ____. An appellate court, in reviewing a judgment for errors
appearing on the record, will not substitute its factual findings for those
of the lower court where competent evidence supports those findings.
4. Child Custody: Parental Rights. There are two competing principles in
the area of child custody jurisprudence: the parental preference principle
and the best interests of the child principle.
5. Child Custody. Courts have long considered the best interests of the
child to be of paramount concern in child custody disputes.
6. Child Custody: Parental Rights. The principle of parental preference
provides that a court may not properly deprive a biological or adoptive
parent of the custody of the minor child unless it is affirmatively shown
that such parent is unfit to perform the duties imposed by the parent-
child relationship or has forfeited that right.
7. Parental Rights: Guardians and Conservators: Presumptions. In
guardianship termination proceedings involving a biological or adoptive
parent, the parental preference principle serves to establish a rebuttable
presumption that the best interests of a child are served by reuniting the
child with his or her parent.
8. Child Custody: Parental Rights. Under the parental preference prin-
ciple, a parent’s natural right to the custody of his or her child trumps
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IN RE GUARDIANSHIP OF K.R.
Cite as 26 Neb. App. 713the interest of strangers to the parent-child relationship and the prefer-
ences of the child.
9. Child Custody: Parental Rights: Proof. For a court to deny a parent
the custody of his or her minor child, it must be affirmatively shown
that such parent is unfit to perform parental duties or that he or she has
forfeited that right.
10. Parental Rights: Guardians and Conservators: Proof. An individual
who opposes the termination of a guardianship bears the burden of prov-
ing by clear and convincing evidence that the biological or adoptive
parent either is unfit or has forfeited his or her right to custody. Absent
such proof, the constitutional dimensions of the relationship between
parent and child require termination of the guardianship and reunifica-
tion with the parent.
11. Child Custody: Parental Rights. While preference must be given to
a biological or adoptive parent’s superior right to custody where the
parent is not unfit and has not forfeited his or her parental rights, a
court also considers the child’s best interests in making its custody
determination.
12. Child Custody: Parental Rights: Proof. The parental preference doc-
trine, by definition, is a preference, and it will be applied to a child
custody determination unless it is shown that the lawful parent is unfit
or has forfeited his or her superior right or the preference is negated by
a demonstration that the best interests of the child lie elsewhere.
Appeal from the County Court for Douglas County: M arcela
A. K eim, Judge. Affirmed.
Julie A. Frank for appellant.
Patrick A. Campagna, of Campagna Law, P.C., L.L.O., for
appellees.
Pirtle, R iedmann, and Welch, Judges.
Pirtle, Judge.
INTRODUCTION
Heather R. appeals from an order of the Douglas County
Court where the court refused to terminate the guardianship
over her daughter K.R. and refused to reinstate visitation
between Heather and K.R. Based on the reasons that follow,
we affirm.
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IN RE GUARDIANSHIP OF K.R.
Cite as 26 Neb. App. 713BACKGROUND
Heather is the biological mother of K.R., born in 2007.
Kameron’s biological father is unknown. Appellees, Mark R.
and Cynthia R., are Heather’s parents and K.R.’s grandparents.
On June 27, 2014, appellees filed a petition for appointment
of a guardian for a minor, seeking coguardianship of K.R.
They also filed a motion for ex parte appointment of guardian,
seeking the immediate appointment of guardianship over K.R.
The court granted the ex parte motion. Heather filed an answer
and an ex parte motion to set aside the ex parte appointment of
temporary coguardians.
On August 4, 2014, the court overruled Heather’s motion to
set aside the ex parte appointment of temporary coguardians.
The court also appointed a guardian ad litem for K.R.
On October 29, 2014, an order appointing appellees as
coguardians was entered, based on a stipulated agreement
between Heather and appellees. The agreement, adopted by
the court in its order, required Heather to complete certain
requirements. It required her to submit to a psychological
evaluation, a chemical dependency evaluation, and a parenting
education course. The order also provided a specific parent-
ing time schedule for Heather, with increasing parenting time.
The order further required that Heather was not to leave K.R.
alone, without proper adult supervision, and that she was to
allow K.R. unrestricted access to use a cell phone provided by
appellees to call the guardian ad litem or appellees during her
visits with Heather.
On March 17, 2015, Heather filed a motion to dismiss the
guardianship. A trial date was set for May 6.
On May 4, 2015, the guardian ad litem filed an ex parte
motion to suspend visitation between Heather and K.R. because
K.R. had disclosed to her therapist that she had been the victim
of sexual abuse while in the care of Heather. The trial court
entered an order on May 5, suspending visits and cancel-
ing the May 6 trial date set for Heather’s motion to dismiss
the guardianship.
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Cite as 26 Neb. App. 713On August 4, 2015, the State filed an information charging
Heather with Class IIIA felony child abuse committed from
May 1, 2013, through May 14, 2015, for failing to protect
K.R. K.R. had identified two minor boys as the sexual perpe-
trators. The two boys and their family had lived in Heather’s
apartment for a short period of time. A trial was held on the
criminal charge against Heather, and she was found guilty of
child abuse. She was sentenced on December 29, 2016, to 18
months’ probation.
On April 3, 2017, Heather filed a motion to terminate the
guardianship and a motion to reinstate visitation. These are the
motions that are the subject of this appeal.
Trial was held on both motions in May and June 2017.
Cynthia was the first witness to testify for appellees. Cynthia
testified that she does not want the guardianship terminated.
She testified that since Heather was sentenced in December
2016, the only communication from Heather has been one email
to her husband, Mark, requesting visitation with K.R. Heather
had failed to send any other communication, updates, cards,
gifts, or letters to K.R. Cynthia also testified that Heather has
failed to acknowledge any responsibility, apologize, or express
remorse for the sexual abuse K.R. suffered. Cynthia also tes-
tified that Heather had failed to provide any documentation,
other than her own self-representations, that she had complied
with any of the probationary orders of the court.
Cynthia testified that certain things seem to “trigger [K.R.’s]
memories of abuse.” Cynthia testified that K.R. refuses to go
in a bathroom by herself and that she has had trouble with
“wet[ting] her pants” at school for 3 years. Cynthia testified
K.R. is fearful, has nightmares, sleepwalks, and sometimes
wakes up screaming. Cynthia indicated that K.R.’s symptoms
have “ebb[ed] and flow[ed]” over time, but that her symptoms
recently increased when she became aware of Heather’s motion
to dismiss the guardianship. Cynthia testified that K.R. saw a
letter from the court in appellees’ mail and that after seeing the
letter, she started hurting herself. She would hit herself, pull
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Cite as 26 Neb. App. 713her own hair, and squeeze her cheeks. Cynthia testified that she
believed it was too early in Heather’s probationary sentence to
trust her to have any contact with K.R.
On cross-examination, Cynthia testified that she had not
seen Heather for 3 years and did not know anything about her
current fitness as a parent. She also testified that she did not
know if Heather had completed some of the items required in
the order establishing guardianship and that she did not know if
Heather was in compliance with her probation order.
Jeanne Cattau, K.R.’s therapist, also testified. She testi-
fied that K.R. has been a patient of hers since January 2015
and was brought into therapy by appellees. Cattau testified
that K.R. initially began disclosing instances of biting and
hitting. She testified that in May 2015, K.R. began disclos-
ing other physical and sexual abuse that had occurred in her
home. K.R. originally identified a minor named “Seth” as the
primary perpetrator, and then she began making disclosures
regarding his older brother and that the abuse occurred on
multiple occasions.
Cattau testified that K.R. disclosed being bitten, hit, choked,
and drowned. K.R. also told Cattau she had been locked in a
bathroom; had been left home alone to care for her younger
sister; had seen one of the boys choke her sister; and had also
seen one of them sit on her sister’s chest, making it difficult
for her to breathe. K.R. also reported “being forced to eat dog
poop.” These incidents occurred when Heather left K.R. and
her younger sister alone with Seth and his brothers. Seth was
approximately 12 years of age at the time of these events, and
K.R.’s younger sister was 2 or 3 years of age. Cattau reported
that K.R. is concerned about her younger sister’s safety, is
concerned that she is not in the home to watch out for her, and
wants to see her.
Cattau testified that K.R. revealed that she had told Heather
about the abuse by Seth and that Heather questioned Seth
about it, but when Seth gave a different version of what
had occurred, Heather believed Seth and ultimately blamed
and punished K.R. for the sexual activity with Seth. Cattau
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the blame.
Cattau also testified that she was not in favor of visitation
between Heather and K.R. at the time of trial and testified as to
what steps would need to be taken and what progress needed to
be made before she would recommend visitation, supervised or
otherwise. Cattau testified that she did not support termination
of the guardianship.
Cattau acknowledged that K.R. had recently started to dis-
play additional emotional outbursts, such as hitting herself, out
of concern for the current proceedings. Cattau also testified
that K.R. has told her there had been more abuse in addition to
what she had already disclosed but that she was not ready to
talk about it. K.R. told Cattau that she felt Heather did not love
her and did not care about her because Heather believed Seth
instead of her.
Cattau testified on cross-examination that she believed K.R.
was being truthful with respect to her disclosures of abuse
in Heather’s home. Cattau also testified K.R. recalled that
Heather told her during visits not to talk about what had
happened in their home, specifically not to talk about Seth,
because it would “tear the family apart.” Cattau stated that
Heather’s telling K.R. not to talk about the abuse was very
concerning because it could increase K.R.’s fears and continue
her “sense of guilt.”
Cattau admitted that she had only met Heather one time,
had never observed Heather and K.R. together, and had not
conducted any therapy or performed any evaluation with
Heather.
Appellees also called Heather to testify. She testified that
she has been married since November 2014 and has lived with
her husband since June 30, 2014. She also testified that she
was employed at the time of trial.
She testified that she knew in May 2014 about K.R.’s being
physically abused—specifically, she knew that Seth had hit
and bit her. K.R. was 6 years old at the time. Heather testified
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Cite as 26 Neb. App. 713that when she learned about the abuse, she asked the family
living with her to move out. Instead of moving out, the family
had Seth go live with an aunt. Heather testified that Seth lived
in her home for only 2 weeks and that the rest of the family
lived there for about a month. She testified that Seth had no
additional contact with K.R. after he moved out.
Heather testified that she learned about the sexual abuse in
June 2015 when a police officer called to ask her questions.
She testified that although K.R. reported to her therapist that
she told Heather about the sexual abuse, Heather denied that
K.R. had told her. She admitted that she failed to protect K.R.,
but not intentionally, and since that time, she has made efforts
to address her failure. She also testified that she will “have to
live with [failing to protect K.R.] for the rest of [her] life” and
that she will “never forgive herself.”
Heather testified that in 2014, she did a chemical depen-
dency evaluation, a psychological and parental fitness evalu-
ation, and took a parenting class. In 2015, she started seeing
a therapist and continued until December 2016. Her therapist
released her from therapy, and her probation officer was sat-
isfied with that and indicated she was not going to require
Heather to do additional therapy. In 2017, she took another
psychological and parental fitness evaluation, another chemical
dependency evaluation, and another parenting course.
Heather testified that she has complied with or is work-
ing toward complying with every provision of her probation.
She acknowledged that there is a no-contact order between
her and K.R. and that she has not attempted to contact K.R.
She has not spoken to K.R. since she disclosed the sexual
abuse in May 2015, because that is when the no-contact order
was implemented. Heather denied telling K.R. during visits
prior to May 2015 that she should not talk about the abuse
by Seth.
After Heather’s testimony, Heather motioned for a directed
verdict, which the court denied. Heather then presented her
evidence, beginning with her own testimony.
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Cite as 26 Neb. App. 713Heather testified that she has lived in the same home since
June 30, 2014, and that her name is on the lease for her home.
She lives in the home with her husband and K.R.’s younger
sister. She also testified that she has worked for the same
employer since 2014.
Heather testified about the order that established the guard-
ianship and what it required her to do. She testified that it
required her to undergo a psychological parenting evaluation,
which she did, and that the evaluation recommended she see
a therapist to address her low self-esteem issues. She testified
that she has completed therapy and was discharged success-
fully. She testified that she still maintains contact with her
therapist and that she can go see her therapist if she feels she
needs to or her probation officer requests that she see her. The
order required her to have a chemical dependency evalua-
tion, which she did, and which also recommended counseling.
She also completed a parenting class, as required in the order
establishing the guardianship.
Heather further testified that on her own, she obtained a
second psychological and parental fitness evaluation and took
another parenting class that specifically addressed dealing with
children who have gone through trauma.
She also explained that she did recall K.R.’s talking about
Seth during two different visits and that she told K.R. that she
did not need to worry about him anymore because he was not
around anymore to hurt her. Heather testified that K.R. may
have misunderstood what she said.
Dr. Stephanie Peterson, a clinical psychologist, also testi-
fied for Heather. She performed two psychological evaluations
and parenting assessments of Heather, one in November 2014
and the other in March 2017. Peterson testified that Heather
does not have a personality disorder. Her clinical profile was
“within normal limits [and] no psychopathology was indicated
by her results.” Peterson testified that she interviewed appel-
lees and reviewed the documentation they provided and that
she could not support their concerns about Heather with any
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Cite as 26 Neb. App. 713data. All the data she collected showed that Heather “had all
the qualities of an adequate parent.”
Peterson testified that at the time she updated Heather’s psy-
chological and parenting evaluation in March 2017, Heather
“had grown in her knowledge as a parent and her self-esteem
had improved.” Peterson further stated that Heather had grown
and changed in positive ways, which Heather attributed in part
to her work in therapy, among other things. Peterson noted
that Heather was still married to the same person she was at
the time of the first evaluation, her living situation was stable,
and she had stable employment. Peterson further noted that
Heather has another child living with her, K.R.’s younger
sister, whom she has coparented with the child’s father in a
stable arrangement and no one has notified her of any issues
or bad parenting on Heather’s part in regard to that child. She
testified that if a parent is competently parenting one child,
it indicates the parent should be able to competently parent
another child.
Following trial, the court entered an order finding that termi-
nating the guardianship would be a detriment to K.R.’s welfare.
It further found:
[Heather] may certainly place herself in a position in
the future to regain custody of [K.R.] after a period of
regular visitation and re-establishing a parental relation-
ship. Given the sensitive nature of this case and [K.R.’s]
current mental state, this court will entertain reinstat-
ing visits, ordering family therapy and terminating the
guardianship if and when it is recommended by [K.R.’s]
therapist. However, until that occurs, the guardianship
established on October 28, 2014 shall remain in full
force and affect.
(Emphasis in original.)
ASSIGNMENTS OF ERROR
Heather assigns that the trial court erred in (1) failing to
terminate the guardianship over K.R.; (2) failing to reinstate
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Cite as 26 Neb. App. 713visitation between Heather and K.R.; and (3) improperly del-
egating authority to K.R.’s therapist regarding “visitation, ter-
mination of the guardianship, and family therapy.”
STANDARD OF REVIEW
[1-3] Appeals of matters arising under the Nebraska
Probate Code are reviewed for error on the record. See, In re
Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004);
In re Guardianship of Elizabeth H., 17 Neb. App. 752, 771
N.W.2d 185 (2009). 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. In re
Guardianship of D.J., supra; In re Guardianship of Elizabeth
H., supra. An appellate court, in reviewing a judgment for
errors appearing on the record, will not substitute its factual
findings for those of the lower court where competent evi-
dence supports those findings. In re Guardianship of Elizabeth
H., supra.ANALYSIS
Motion to Terminate Guardianship.
Heather first assigns that the trial court erred in failing to
terminate the guardianship over K.R. Specifically, Heather
argues that appellees failed to meet their burden of proving by
clear and convincing evidence that Heather either is unfit or
has forfeited her right to custody.
[4-6] It is well established that there are two competing
principles in the area of child custody jurisprudence: the
parental preference principle and the best interests of the
child principle. See In re Guardianship of D.J., supra. Courts
have long considered the best interests of the child to be of
paramount concern in child custody disputes. See id. Yet, “the
principle of parental preference provides that a court ‘may
not properly deprive a biological or adoptive parent of the
custody of the minor child unless it is affirmatively shown
that such parent is unfit to perform the duties imposed by the
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Cite as 26 Neb. App. 713[parent-child] relationship or has forfeited that right.’” Id. at
244, 682 N.W.2d at 243 (quoting 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)).
[7-10] In weighing these two principles, the Nebraska
Supreme Court has held that in guardianship termination
proceedings involving a biological or adoptive parent, “the
parental preference principle serves to establish a rebuttable
presumption that the best interests of a child are served by
reuniting the child with his or her parent.” In re Guardianship
of D.J., 268 Neb. at 244, 682 N.W.2d at 243. Under this prin-
ciple, a parent’s natural right to the custody of his or her child
“trumps the interest of strangers to the parent-child relation-
ship and the preferences of the child.” Id. at 244, 682 N.W.2d
at 243-44. Therefore, for a court to deny a parent the custody
of his or her minor child, it must be affirmatively shown that
such parent is unfit to perform parental duties or that he or she
has forfeited that right. See id. Thus,
an individual who opposes the termination of a guardian-
ship bears the burden of proving by clear and convincing
evidence that the biological or adoptive parent either is
unfit or has forfeited his or her right to custody. Absent
such proof, the constitutional dimensions of the relation-
ship between parent and child require termination of the
guardianship and reunification with the parent.
In re Guardianship of D.J., 268 Neb. 239, 249, 682 N.W.2d
238, 246 (2004).
[11,12] However, the Nebraska Supreme Court has stated
that “[w]hile preference must be given to a biological or adop-
tive parent’s superior right to custody where the parent is not
unfit and has not forfeited his or her parental rights, a court
also considers the child’s best interests in making its custody
determination.” Windham v. Griffin, 295 Neb. 279, 290, 887
N.W.2d 710, 718 (2016), citing In re Guardianship of D.J.,
supra. The court in Windham further held:
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Cite as 26 Neb. App. 713We continue to adhere to the view that the parental pref-
erence doctrine, by definition, is a preference, and it
will be applied to a child custody determination unless
it is shown that the lawful parent is unfit or has forfeited
his or her superior right or the preference is negated
by a demonstration that the best interests of the child
lie elsewhere.
295 Neb. at 288, 887 N.W.2d at 717, citing In re Guardianship
of D.J., supra. The court in Windham noted that there have
been rare instances where courts have determined that the best
interests of the child defeated the lawful parent’s preference.
The court in Windham referred to Gorman v. Gorman, 400 So.
2d 75 (Fla. App. 1981), as one such case. In Gorman, the trial
court found both the biological father and the ex-stepmother
to be fit and proper parents, but awarded custody of the child
to the ex-stepmother. On appeal, the appellate court affirmed
the trial court’s determination that it was in the child’s best
interests for the ex-stepmother to have custody rather than the
lawful parent.
We determine that like Gorman, the present case is one of
those rare cases where the best interests of the child defeats the
parental preference principle.
The evidence showed that Heather had been convicted of
child abuse for failing to protect K.R. and had been sentenced
only 3 months earlier at the time she filed her motion to ter-
minate the guardianship. Cynthia testified that K.R. was still
dealing with symptoms of the abuse, such as refusing to go
into a bathroom by herself, “wet[ting] her pants” at school,
and having nightmares. Cynthia testified that K.R.’s symptoms
increased when she learned of Heather’s motion to dismiss the
guardianship, which included K.R.’s hurting herself.
Cattau, who had been K.R.’s therapist since January 2015,
testified about the effects of the abuse on K.R. and how
she was dealing with the trauma. Cattau testified that K.R.
informed her she had told Heather about the sexual abuse and
that Heather did not believe her and blamed her for any sexual
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Cite as 26 Neb. App. 713activity with Seth. Cattau testified that K.R. is still working
through the guilt and blame that she feels from Heather. K.R.
also told Cattau that she does not believe Heather cares about
her or loves her. Cattau agreed with Cynthia that K.R. had been
having additional emotional outbursts, such as hitting herself,
because of these proceedings. K.R. has also indicated that she
has suffered more abuse than what she has disclosed so far.
She stated that it was imperative that K.R.’s emotional state
and emotional well-being be taken into consideration. Cattau
testified that she did not support termination of the guardian-
ship and was not in support of any type of visitation between
Heather and K.R. at the time of trial.
Based on the evidence presented, K.R. is still dealing
with the abuse she endured and the role that Heather played
in allowing the abuse to occur. As previously stated, at the
time of trial, Heather had been convicted of child abuse for
failing to protect K.R. and Heather was serving her sentence
of 18 months’ probation. We conclude that based on the cir-
cumstances in this case, the parental preference principle is
negated by a demonstration that K.R.’s best interests will be
served by keeping the guardianship in place. Therefore, the
trial court did not err in failing to terminate the guardianship
over K.R.
Motion to Reinstate Visitation.
Heather also assigns that the trial court erred in failing to
reinstate visitation between her and K.R. At the time of trial,
Cattau testified that she did not believe any type of visitation
should take place between Heather and K.R. She also testified
about what she believed needed to happen before visitations
could take place. We find no error in the court’s refusal to
reinstate visitation.
Delegation of Decisions to Therapist.
Heather assigns that the trial court erred in improperly
delegating decisions regarding visitation, family therapy, and
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Cite as 26 Neb. App. 713the guardianship to K.R.’s therapist. Her assignment of error
is based on the court’s statement that “[g]iven the sensitive
nature of this case and [K.R.’s] current mental state, this court
will entertain reinstating visits, ordering family therapy and
terminating the guardianship[,] if and when it is recommended
by [K.R.’s] therapist.” (Emphasis in original.) Heather argues
that allowing Cattau to make these decisions was an improper
delegation of the court’s authority. We disagree.
The trial court did not delegate decisions to Cattau, but,
rather, stated that it would not consider reinstating visits,
ordering family therapy, and terminating the guardianship until
such time as these things were recommended by K.R.’s thera-
pist. The court retained the authority to make these decisions
and only stated that it would need to hear from the therapist
that K.R. was ready for such steps to be taken. Heather’s final
assignment of error is without merit.
CONCLUSION
We conclude that the county court did not err in denying
Heather’s motion to terminate the guardianship over K.R.,
did not err in denying her motion to reinstate visitation, and
did not improperly delegate any decisions to K.R.’s therapist.
Accordingly, the order of the county court is affirmed.
A ffirmed.