In re Guardianship of Kayn M. ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE GUARDIANSHIP OF KAYN M.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE GUARDIANSHIP OF KAYN M., A CHILD UNDER 18 YEARS OF AGE.
CECELIA G., APPELLANT,
V.
ANNETTA M., APPELLEE.
Filed December 5, 2023. No. A-23-128.
Appeal from the County Court for Boyd County: KALE B. BURDICK, Judge. Affirmed.
Nicholas R. Glasz for appellant.
Ashley D. Boettcher, of Galyen Boettcher Baier P.C., L.L.O., for appellee.
PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.
PIRTLE, Chief Judge.
I. INTRODUCTION
Annetta M. filed a petition for guardianship of her grandson, Kayn M., following the death
of her son, Derek M. Kayn’s mother, Cecelia G., opposed the appointment and sought custody of
Kayn. Following a trial, the county court for Boyd County found Cecelia to be presently unfit to
perform parental duties and granted Annetta’s petition for guardianship. Cecelia now appeals, and
for the reasons set forth herein, we affirm.
II. BACKGROUND
Kayn was born in 2016. Following his birth, Derek and Cecelia lived in California together
off and on until 2019. After they stopped living together, Kayn primarily lived with Cecelia, but
would often stay with Derek. In February 2020, Derek and Kayn traveled to Nebraska to visit
Derek’s mother and father. Although they did not plan to stay in Nebraska, the COVID-19
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pandemic impacted their ability to return to California. In the aftermath of the pandemic, Derek
and Cecelia agreed that it was in Kayn’s best interest to attend school in Nebraska because
California schools had not yet reopened. While in Nebraska, Annetta cared for Kayn when Derek
worked. On November 9, 2022, Derek was killed in a car accident. On November 21, Annetta filed
this action to establish guardianship of Kayn, which Cecelia opposed.
1. COUNTY COURT TRIAL AND ORDER
Following a trial, the county court found that Cecelia was presently unfit to perform
parental duties and granted Annetta’s petition for guardianship. In finding that Cecelia was unfit,
the county court cited to several “concerning factors” that taken together supported a finding of
parental unfitness. Overall, the court generally stated that Cecelia lacked the maturity and parental
relationship with Kayn necessary to properly care for him.
(a) Cecelia’s Lifestyle
Cecelia was 29 years old at the time of trial and has another son and daughter with different
men. Kayn is her middle child. While she has custody of her daughter, she has not seen her other
son since Valentine’s Day 2020. She stated that her other son was living with her for a while, but
after she was arrested for domestic violence, he was removed from her care. There were then
custody disputes between her and her son’s father that involved him calling Child Protective
Services (CPS) multiple times. Eventually, she gave up custody of this other son because CPS was
coming to her home too frequently. He currently lives with his father and Cecelia does not provide
any financial support to them.
Cecelia now lives in California with her unemployed boyfriend, Kato, and their 2-year-old
daughter. As Kato is unemployed, Cecelia is the household’s sole provider. She supports the family
by working three days a week at a “strip club” as an “exotic dancer” where she earns $39,000 a
year. She also receives state aid. She has worked as an exotic dancer for five years. While Cecelia
expressed a desire to take courses to become a paralegal, she had not taken any steps to pursue that
goal. In 2021, Cecelia underwent a $5,600 breast augmentation. While she refused to identify who
paid for the surgery, she indicated that one of her “customers” at the strip club financed the
procedure.
Due to the nature of her work, Cecelia is away from home anywhere from 4 p.m. until 1
a.m. to 4 a.m. While Cecelia works at night, Kato is entrusted with the care of her children. Kato
was 22 years old at the time of trial and has known Cecelia since 2019. Kato smokes marijuana
every night. However, Cecelia claimed he does not smoke when caring for the children and that
he would wait until 2 a.m. to 4 a.m. for her to get home to start smoking.
At trial, several images from Kato’s social media were brought forward. Some of these
posts showed him actively smoking marijuana while others referenced how much marijuana he
smokes. There were also numerous photos of him possessing large amounts of money. When asked
how he obtained this money while being unemployed, Cecelia claimed it was fake production
money. In addition to those posts, Kato’s social media also contained a photo depicting
Promethazine Codeine syrup alongside a Sprite bottle. When combined, these ingredients make a
recreational drug known as “lean.”
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Images taken from Cecelia’s social media were also received into evidence as exhibit 3.
These images included a picture of a speedometer gauged at 115 miles per hour. While Cecelia
claimed that she was not driving, she admitted that she took the picture while in the car with a
friend. Another post on her social media shows two pictures of her and Kato with the following
caption: “A year ago today I met My love! Drunk as fuck after I jumped on stage while Dru Down
was on rappin on stage lmaooo! And now we’re having our first baby girl together. . . .”
(b) Cecelia’s Relationship With Kayn
Before Kayn moved to Nebraska in February 2020, Cecelia played an active role in his life.
Although he often stayed with Derek, he primarily lived with Cecelia. However, once Kayn left
California, Cecelia’s contact with him decreased. In March 2021, Derek obtained a decree of
paternity in the Boyd County District Court, and was awarded full custody of Kayn and a parenting
plan was put into place. Pursuant to that plan, Cecelia was entitled to parenting time over the
Christmas, fall and spring break, as well as for 8 weeks in the summer. Although she was entitled
to time over the fall and spring breaks, the plan required Kayn to remain in Nebraska during those
periods. In consideration of not having to pay any child support, the plan required Cecelia to pay
for any travel-related expenses.
In accordance with the plan, Kayn spent 6 weeks in California with Cecelia in 2021 and 8
weeks there in 2022. On both occasions, Annetta transported Kayn to California and for the 2021
visit, she brought him back to Nebraska. Although the parenting plan anticipated Cecelia to cover
all transportation expenses in lieu of paying child support, her only contribution was a one-time
$400 payment to Annetta.
Outside of the two summers Kayn spent with her, Cecelia did not see her son. During the
3 years he spent in Nebraska, she never visited. The only time she came to Nebraska was after
Derek’s death to gain custody. Further, while Kayn was in Nebraska, she maintained minimal
contact with him. While she claimed to call or FaceTime him once or twice a week, Annetta stated
1 or 2 months would go by between calls. When those long periods without communication
occurred, Annetta would initiate calls to Cecelia so Kayn could have contact with his mother.
Cecelia also never made any efforts to reach out to Kayn’s school or teachers to see how he was
doing. Additionally, although Kayn’s school offers an option for virtual parent teacher
conferences, Cecelia never took advantage of that opportunity.
According to Annetta, in the 3 years Kayn lived in Nebraska, he never asked for his mother.
This lack of attachment not only worried Annetta, but it also concerned Jackie Meyer, a mental
health practitioner Kayn saw after Derek’s death. When asked to draw pictures of himself at his
grandparent’s home during a session with Meyer, Kayn drew pictures of himself, Annetta, and his
grandfather. When asked to do the same activity, but in reference to Cecelia’s home, Kayn’s
behavior changed, and he became a “[t]otally different little boy.” “He crawled onto the couch
where [Annetta] was sitting and he just couldn’t . . . he was so dysregulated.” After more struggle
and prompting, he eventually drew the image. However, beyond the change in his behavior, Meyer
was very concerned that the image of his mother was “just like a blob.” She indicated that the
absence of any features indicated a lack of connection.
More so, Annetta also provided testimony claiming that Kayn told her that he did not want
to go back to California. Kayn informed her that he did not want to return because Kato was mean
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and yells at him when he tries to wake up Cecelia. Kayn also told Annetta that he was “number
three.” Upon being asked for clarification, Kayn informed her that Kato told him that Kayn’s sister
is first, Kato is second, and Kayn is third in the order of priority.
2. COUNTY COURT’S ORDER
The county court relied on multiple factors in finding Cecelia currently unfit to perform
parental duties. The court stated that while none of the factors standing alone would warrant a
finding of unfitness, their totality demonstrates clear and convincing evidence that “[Cecelia] puts
herself before Kayn” and “does what she wants to do[,] not what is in the best interests of her
children.”
The court first pointed to the fact that Cecelia has three children from three different men.
Of those three children, only one resides with her and she does not provide any support to the other
two. The court then took particular concern with Cecelia’s comfort in entrusting Kato with the care
of her children. It indicated that although marijuana is legal in California, someone who is under
its influence daily should not be solely responsible for young children. The court also took issue
with the online images of Kato holding large sums of money without any indication as to how he
obtained it. While Cecelia claimed the bills were fake prop money, the Court found that testimony
not to be credible.
The court also highlighted Cecelia’s relative absence from Kayn’s life for the preceding 3
years. Beyond her only exercising her parenting time during the summers, her other interactions
with Kayn were infrequent and inconsistent. Sometimes weeks went by between phone calls. More
so, she failed to show any interest in reaching out to Kayn’s teachers or in attending any of his
activities.
The court then directed attention to Cecelia’s risk-taking behaviors. This includes allowing
someone she met at her strip club to pay for her $5,600 breast augmentation which the court cited
as abnormal and not a “transaction among friends.” Other risky behavior included being in a
vehicle that was traveling at 115 miles per hour and being heavily intoxicated at a concert where
she met Kato. The court noted that Cecelia and Kato “act more like children than parents.”
Additionally, the court specified that it had little faith in Cecelia following through on her goal of
becoming a paralegal. The court cited to the fact that she already has custody of her 2-year-old
child and has not taken any steps toward changing her career.
The court went on to state that appointing Annetta as Kayn’s guardian was in his best
interest. Kayn displayed a special attachment to Annetta and indicated that he felt safe with her.
More so, while living with Annetta he was doing well in school and became integrated into the
community. Therefore, the court concluded it was in Kayn’s best interest to stay with Annetta but
continue to develop and foster a relationship with Cecelia.
III. ASSIGNMENTS OF ERROR
Restated and reordered, Cecelia assigns that the county court erred in (1) receiving exhibit
3 into evidence over her objections for lack of foundation and authentication; (2) failing to abscond
from judicial bias or prejudice in its decision making; and (3) determining she was unfit to perform
parental duties.
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IV. STANDARD OF REVIEW
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is
controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. Richards v. McClure, 290 Neb. 124, 858
N.W.2d 841 (2015). Because authentication rulings are necessarily fact specific, a trial court has
discretion to determine whether evidence has been properly authenticated, and an appellate court
reviews a trial court’s ruling on authentication for an abuse of discretion. State v. Pullens, 281
Neb. 828, 800 N.W.2d 202 (2011).
Failure to make a timely objection waives the right to assert prejudicial error on appeal.
Ecker v. E & A Consulting Group, 302 Neb. 578, 924 N.W.2d 671 (2019). When an issue is raised
for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submitted to it for disposition. Id.When evaluating a trial judge’s alleged bias, the question is whether a reasonable person
who knew the circumstances of the case would question the judge’s impartiality under an objective
standard of reasonableness, even though no actual bias or prejudice was shown. State v. Ezell, 314
Neb. 825, 993 N.W.2d 449 (2023). Appeals of matters arising under the Nebraska Probate Code
are reviewed for error on the record. In re Guardianship of K.R., 26 Neb. 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 supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. Id. 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. Id.V. ANALYSIS
1. RECEIPT OF EXHIBIT 3
Cecelia first assigns the county court erred in receiving exhibit 3 into evidence without
proper foundation and authentication. Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 (Reissue 2016),
requires authentication or identification of evidence sufficient to support a finding that a matter is
what the proponent claims as a condition precedent for admission. State v. Burries, 297 Neb. 367,
900 N.W.2d 483 (2017). But authentication or identification under rule 901 is not a high hurdle.
Id. If the evidence is sufficient to support a finding that the evidence is what it purports to be, the
rule is satisfied. Id. Under rule 901(2)(a), a proponent may authenticate a document by the
testimony of someone with personal knowledge that it is what it is claimed to be, such as a person
familiar with its contents. State v. Casterline, 293 Neb. 41, 878 N.W.2d 38 (2016). Additionally,
under rule 901(2)(d), a proponent may authenticate a document by circumstantial evidence, or its
“appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.” Id. at 57, 878 N.W.2d at 50. Authentication rulings are
necessarily fact specific, so a trial court has discretion to determine whether evidence has been
properly authenticated. Id.
Exhibit 3 is a collection of images that appear to be taken from Cecelia’s social media
accounts. The first image is of her in a cap and gown with a caption stating, “Graduated from my
Domestic Violence class today!!” Its time stamp shows that it was posted from an account named
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“Cecelianicoleg” on October 19, 2017. The second image depicts a post from the same account
with a CashApp QR code accompanied by the following caption: “Going through a little bit a
family crisis don’t want to go to much in to detail but im trying to get my son home from Nebraska
before Christmas, anything will help and be GREATLY appreciated!” The time stamp associated
with this image only shows that it was posted 5 hours before the screenshot. The third image,
posted from the same account, appears to depict a picture of a speedometer gauged at 115 miles
per hour. The time stamp associated with that image shows it is from March 24, but it does not
indicate which year. The next image, dated April 13, 2021, is a post from a Facebook account
named “Cecelia Nicole” that states, “On my way to Surgery.” The following image, from the same
account, was posted on August 24, 2020, and includes two pictures of Cecelia and Kato with the
following caption: “A year ago today I met My love! Drunk as fuck after I jumped on stage while
Dru Down was on rappin on stage lmaooo! And now we’re having our first baby girl together. .
. .” The last picture was posted from the same account on August 31, 2021, and depicts her and
Kato embracing.
The foundational evidence set forth at trial was sufficient to support a finding that the
images were what they purported to be; posts from Cecelia’s social media accounts. Annetta
testified that she pulled these images from Cecelia’s social media accounts with the help of her
niece. The accounts associated with the posts bear Cecelia’s name, several of the images depict
pictures of her and Kato, and at least four of the captions are distinctive to life events she
experienced. As such, the images and captions within the posts provide sufficient circumstantial
evidence that the social media accounts belong to Cecelia and that she made the posts. We find
that exhibit 3 was sufficiently authenticated and the county court did not abuse its discretion in
overruling Cecelia’s foundation and authentication objections.
2. JUDICIAL BIAS
Cecelia assigns “the record establishes judicial bias or prejudice as a matter of law.”
Specifically, Cecelia contends: “[T]he appearance of bias was poignant at trial and ubiquitous
throughout the entirety of its order. The record shows many examples of the [county] court’s
deep-seated antagonism against [Cecelia] so as to make rendering a fair judgment impossible.”
Brief for appellant at 17.
Cecelia points to three situations where the county court allegedly demonstrated judicial
bias or prejudice. First, she argues the court gave Annetta’s attorney “coaching and
encouragement” during trial. When the lawyer attempted to offer exhibit 3, Cecelia’s counsel
objected citing to a lack of foundation and authentication. In ruling on the objection, the court
stated, “I’ll sustain the objection, but I think you can get there pretty easily, [counsel].” Cecelia
argues this “coaching and encouragement” gave the appearance that the court “would likely accept
the exhibit without the same rigor expected of all lawyers at trial.” Brief for appellant at 17.
The second instance Cecelia cites to occurred during Annetta’s attorney’s closing argument
and concerned Cecelia’s decision to get a breast augmentation while not providing financial
support for her children:
[Annetta’s Counsel]: . . . I’m not paying anything towards this child’s wellbeing or
upbringing, but I’m going to go spend $5,600 on a breast augmentation, and somehow
that’s in my child’s best interest. That makes no sense.
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[Cecelia’s Counsel]: I would object, Judge, that wasn’t the testimony. I believe the
testimony from my client was that the — in the exhibit, the Venmo app. she received the
$5,600 from somebody over the Venmo.
[Annetta’s Counsel]: I mean, that’s even better.
THE COURT: Correct.
It is not entirely clear which attorney the court was responding to, but Cecelia contends the court
responding “correct” was inappropriate.
Lastly, Cecelia takes issue with several of the factors the court relied upon in its order
which found that she was presently unfit to perform parental duties. Specifically, she argues the
court’s focus on her occupation as an exotic dancer working at a strip club, receipt of welfare
benefits, decisions to receive cosmetic surgery, and acceptance of funds from an unknown
third-party to afford cosmetic surgery illustrates a projection of “an inappropriate stigma against
people who ask for financial and economic assistance to survive.” Brief for appellant at 18. We
find the record does not support a finding of judicial bias. When evaluating a trial judge’s alleged
bias, the question is whether a reasonable person who knew the circumstances of the case would
question the judge’s impartiality under an objective standard of reasonableness, even though no
actual bias or prejudice was shown. State v. Ezell, 314 Neb. 825, 993 N.W.2d 449 (2023). In other
words, the question is not simply whether someone could conceivably question a judge’s
impartiality. Id. A defendant seeking to disqualify a judge on the basis of bias or prejudice bears
the heavy burden of overcoming the presumption of judicial impartiality. Id. However, judicial
rulings alone almost never constitute a valid basis for a bias or partiality motion directed to a trial
judge. State v. Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022).
We find Cecelia’s allegations are insufficient to overcome the heavy burden to show bias
by the trial judge. Under the prevailing standard, we do not believe the judge’s comment during
the proceeding which Cecelia labels as “coaching and encouragement” rises to the level of
disqualifying conduct when his impartiality is being questioned. Likewise, his utterance of the
word “correct” does not reasonably bring his impartiality into question. Particularly, when it is not
clear which attorney’s comment he is referencing as being “correct.”
We also do not find that the court’s focus in its order on Cecelia’s occupation, receipt of
welfare benefits, decisions to receive cosmetic surgery, and acceptance of funds from unknown
third-parties were inappropriate factors to consider that overcome the presumption of judicial
impartiality. We do not believe a reasonable person who knew the circumstances of the case,
viewing the judge’s impartiality under an objective standard of reasonableness, would view the
court’s reliance on these factors as a demonstration of bias against Cecelia. Instead, a reasonable
person would view the court’s reliance on those facts as an effort to illustrate Cecelia’s lack of
maturity and questionable decision-making skills. Therefore, we cannot conclude that a reasonable
person who knew the circumstances of the case would question the judge’s impartiality under an
objective standard of reasonableness.
3. UNFIT TO PERFORM PARENTAL DUTIES
Cecelia assigns the county court erred in finding that she was unfit to perform parental
duties. A guardianship is no more than a temporary custody arrangement established for the
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well-being of a child. In re Guardianship of Elizabeth H., 17 Neb. App. 752, 771 N.W.2d 185(2009).
The parental preference principle applies to guardianship proceedings that affect child
custody. Id. This includes a proceeding to determine whether to appoint a guardian over a parent’s
objection. Id. The parental preference principle establishes a rebuttable presumption that the best
interests of a child are served by reuniting the child with his or her parent. Id. The principle
provides that a parent has a natural right to the custody of his or her child which trumps the interest
of strangers to the parent-child relationship and the preferences of the child. Id. An individual who
seeks appointment as a guardian over the objection of a biological or adoptive parent bears the
burden of proving by clear and convincing evidence that the biological or adoptive parent 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 a court to deny the request for a guardianship.
Id. Parental unfitness is defined as “a personal deficiency or incapacity which has prevented, or
will probably prevent, performance of a reasonable parental obligation in child rearing and which
has caused, or probably will result in, detriment to a child’s well-being.” In re Guardianship of
K.R., 304 Neb. 1, 12, 932 N.W.2d 737, 745 (2019).
Evidence of unfitness should be focused upon a parent’s present ability to care for a child,
and not any other moral failings a parent may have. Tilson v. Tilson, 307 Neb. 275, 948 N.W.2d
768 (2020); In re Interest of Lakota Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 174 (2011).
Evidence of a parent’s past failings is pertinent only insofar as it suggests present or future faults.
Id. While the analysis focuses on a parent’s present ability, a pattern of poor decision making can
support a finding of a parent’s unfitness when awarding custody to a guardian. See In re
Guardianship of Elizabeth H., supra.
The record provides competent evidence to support the court’s determination that Cecelia
was unfit to obtain custody of Kayn at the time of the hearing. Cecelia has displayed a pattern of
questionable conduct, a lack of maturity, and a disinterest in the life of her son.
We begin by noting Cecelia’s problematic decision of entrusting Kato with the care of her
young children while she is at work. It was uncontested that Kato uses marijuana daily. Although
Cecelia indicated that Kato does not use marijuana while taking care of the children, the county
court found that someone who is under the influence of marijuana daily should not be solely
responsible for providing care to young children. We agree. While responsible for the maintenance
and safety of dependent small children, Kato’s daily use of marijuana poses risks to these children.
Beyond Kato’s daily use of marijuana, there were also indications that he uses “lean.”
While it is not known whether Kato has consumed “lean” in the presence of the children, the
presence of the drug in their home and his willingness to share images of it online supplements the
questionable nature of Cecelia’s decision to entrust him with the care of her children. Additionally,
despite being unemployed, Kato has shared multiple images online of him holding large sums of
money. While Cecelia testified this money was fake production money, the county court found
that conclusion not to be credible. It is not in the purview of the appellate court to determine the
credibility of witnesses on appeal, as such determinations are for the finder of fact. State v.
Duckworth, 29 Neb. App. 27, 950 N.W.2d 650 (2020). This leaves unresolved questions as to the
source of the money in the photos, which in turn raises further suspicions as to Kato’s suitability
for the care of two small children.
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Further, Cecelia’s failure to form a plan to obtain the additional finances necessary to house
and raise an additional child displays a lack of maturity. We first note that a court has never
deprived a parent of the custody of a child merely because of financial or other grounds a stranger
might better provide. In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004).
Therefore, we put no credence in the fact that Cecelia only makes $39,000 a year, is on welfare,
and is the sole breadwinner for Kato, their child, and herself. While we do not rely on those facts,
the lack of a plan to deal with the additional costs associated with having custody of Kayn is
indicative of a lack of maturity. When asked about how she will parent an additional child if she
is already financially insecure, she responded, “He’s my son, I’ll figure it out. That’s what parents
do.” However, her testimony about voluntarily giving up custody of her other son due to frequent
visits by CPS calls this purported dedication to parenting into question. She also stated that if she
received custody of Kayn, she would change her work hours to better accommodate his care and
would make strides to change her occupation. She discussed going to school to become a paralegal
but has not taken any steps to achieve that goal. The fact that she has failed to take any steps to
change her work schedule or occupation while already caring for one of her children gives little
reason to believe that she will do so upon gaining custody of Kayn.
Also indicative of Cecelia’s questionable decision making and maturity is her willingness
to allow a customer at the strip club to pay for her $5,600 breast augmentation. While we do not
necessarily weigh Cecelia’s occupation as an exotic dancer against her, the degree that she allows
her job to influence her personal life is relevant. Having a stranger pay for such a procedure is
certainly abnormal and constitutes questionable decision making on her part.
Additionally, Cecelia has made decisions that have adversely affected her relationship with
Kayn. She has had minimal contact with him since February 2020 and displayed an indifference
toward his schooling and other activities. The parenting plan provided for Cecelia to have
parenting time with Kayn for 8 weeks during the summer as well as over fall and spring breaks,
and Christmas. Despite this plan, Cecelia only exercised her parenting time for six weeks in
summer 2021 and the full 8 weeks in summer 2022. This meant that Cecelia did not see Kayn from
February 2020 until the summer 2021 and then again from summer 2021 until summer 2022.
Cecelia also did not make the effort to travel to Nebraska to visit Kayn or to pick him up
for her scheduled parenting time. She stated that although she wanted to visit Kayn, traveling to
Nebraska was expensive. As such, Annetta was the one who transported Kayn to California on
both occasions and even brought him back to Nebraska following his summer 2021 visit. And
despite being obligated to pay for Kayn’s travel expenses, Cecelia’s only contribution was a
one-time payment of $400. We find it noteworthy that Cecelia was able to obtain funds for a
cosmetic surgery but was unwilling to pay for Kayn’s travel expenses as required, and found the
cost of visiting him to be prohibitive.
Further, while the COVID pandemic and its aftermath may explain Cecelia’s physical
absence during 2020, it does not excuse the extended absence of phone calls or other means of
communication during and after that period. During those extended periods, Cecelia’s
communication with Kayn was limited to inconsistent phone and FaceTime calls. Annetta asserted
that “sometimes four, five, six weeks” would go by between calls. When that occurred, Annetta
was the one who initiated the calls to Cecelia. Although Cecelia denied this assertion and claimed
she called Kayn at least once or twice a week, the county court determined Annetta’s testimony
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was more credible. While we are presented with conflicting evidence, our standard of review in
this matter does not allow us to reweigh this evidence or make our own factual findings. See In re
Guardianship of K.R., 304 Neb. 1, 932 N.W.2d 737 (2019). Therefore, we are limited to the county
court’s determination that Annetta’s testimony regarding the frequency of calls was more credible.
Cecelia has also not shown an interest in Kayn’s school or recreational activities. While Kayn has
lived in Nebraska, she has never reached out to his school, his teachers, or attended any virtual
parental-teacher conferences. More so, she has never asked Annetta for any of his school reports
or projects.
Additionally, Kayn’s conduct further demonstrates the lack of a relationship with Cecelia.
Beyond him never asking for his mother since living in Nebraska, his expression of physical
discomfort when tasked with drawing himself with Cecelia is illustrative. This is compounded by
his statement to Annetta that he did not wish to return to California.
We conclude that at the time of the hearing, there was competent, clear, and convincing
evidence that Cecelia possessed a personal deficiency or incapacity that would prevent her from
performing reasonable parental obligations in child rearing, which would result in detriment to
Kayn’s well-being. However, recognizing the temporary nature of guardianships, this does not
preclude Cecelia’s future ability to regain custody of Kayn if steps are taken to better establish a
more stable environment and an appropriate parental relationship.
VI. CONCLUSION
For the reasons outlined above, we find that the trial judge did not demonstrate judicial
bias and the county court did not err when it received exhibit 3 into evidence and found Cecelia to
be presently unfit to perform parental duties. Accordingly, we affirm.
AFFIRMED.
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