In re Guardianship of K.R.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2019 01:07 AM CDT
-1-
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
In re Guardianship of K.R., a minor child.
Heather R., appellant, v. M ark R. and
Cynthia R., Guardians, appellees.
___ N.W.2d ___
Filed September 6, 2019. No. S-17-846.
1. Guardians and Conservators: Judgments: Appeal and Error. Appeals
of matters arising under the Nebraska Probate Code, Neb. Rev. Stat.
§§ 30-2201 through 30-2902 (Reissue 2016 & Cum. Supp. 2018), are
reviewed for error on the record. 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.
2. Judgments: Appeal and Error. An appellate court, in reviewing a judg-
ment for errors appearing on the record, will not substitute its factual
findings for those of the lower court where competent evidence supports
those findings.
3. Child Custody: Parent and Child: Presumptions. The parental prefer-
ence principle establishes a rebuttable presumption that the best interests
of the child are served by placing custody of a minor child with his or
her parent.
4. Parent and Child: Words and Phrases. Parental unfitness means 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.
Petition for further review from the Court of Appeals, Pirtle,
R iedmann, and Welch, Judges, on appeal thereto from the
County Court for Douglas County, M arcela A. K eim, Judge.
Judgment of Court of Appeals affirmed.
Julie A. Frank for appellant.
-2-
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
Patrick A. Campagna, of Campagna Law, P.C., L.L.O., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Years after her parents were appointed as coguardians for
her daughter, K.R., Heather R. sought to terminate the guard-
ianship or to obtain visitation with K.R. Following a trial,
the county court declined to terminate the guardianship or to
grant visitation. The Nebraska Court of Appeals affirmed, find-
ing that it was in K.R.’s best interests for the guardianship to
remain in place and for there to be no visitation. We granted
Heather’s petition for further review, in which she contended
that the Court of Appeals erred by denying her motions without
finding that she either was unfit or had forfeited her parental
rights. Upon further review, however, we find that the county
court determined that at the time of the trial, Heather was unfit
to parent K.R. and that this finding was supported by compe-
tent evidence. Accordingly, we affirm, although based on dif-
ferent reasoning than that of the Court of Appeals.
BACKGROUND
Establishment of Guardianship for K.R.
Heather is the biological mother of K.R., born in 2007.
Appellees, Mark R. and Cynthia R., are Heather’s parents and
K.R.’s grandparents.
This case began in June 2014 when Mark and Cynthia filed
a petition in Douglas County Court in which they asked the
court to appoint them as coguardians for K.R. They also filed
an ex parte motion, asking that their appointment as coguard-
ians take effect immediately. After the court granted the motion
for immediate appointment, Heather unsuccessfully sought to
set it aside.
Heather later reached an agreement with Mark and Cynthia
that they would be appointed as coguardians for K.R. The
-3-
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
agreement was adopted by the court in an October 29, 2014,
order. The order required Heather to complete certain require-
ments: a psychological evaluation, a chemical dependency
evaluation, and a parenting education course. The order also
provided a specific parenting time schedule for Heather. The
order further required that during her parenting time, Heather
was not to leave K.R. without proper adult supervision and
was to allow K.R. unrestricted access to a cell phone to call
Mark and Cynthia or her guardian ad litem during her visits
with Heather.
Heather Is Convicted of Child Abuse.
On March 17, 2015, Heather filed a motion to dismiss
the guardianship. On May 4, just 2 days before the trial on
Heather’s motion to dismiss the guardianship was set to begin,
K.R.’s guardian ad litem filed an ex parte motion to suspend
visitation between Heather and K.R. because K.R. had dis-
closed to her therapist that she had been the victim of sexual
abuse while in the care of Heather. The trial court entered an
order the next day, suspending visits and canceling the trial on
Heather’s motion to dismiss the guardianship.
Heather was later charged with Class IIIA felony child abuse
for failing to protect K.R. K.R. identified two minor boys
as the perpetrators of abuse. The two boys and their family
had lived in Heather’s home. A trial was held on the criminal
charge against Heather, and she was found guilty. She was sen-
tenced on December 29, 2016, to 18 months’ probation.
Trial on Motions to Terminate Guardianship
and for Visitation.
On April 3, 2017, Heather filed a motion to terminate the
guardianship and a motion to reinstate visitation. Trial was
held on both motions in May and June 2017. Because the
evidence introduced at trial is central to the resolution of this
appeal, we summarize it here.
Mark and Cynthia first called Cynthia to testify. Cynthia
testified that she did not believe it would be appropriate for
-4-
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
K.R. to have contact with Heather. Cynthia testified that certain
things seemed to “trigger [K.R.’s] memories of abuse.” Cynthia
testified that K.R. was terrified to go to Omaha, Nebraska,
where Heather lives. She also testified that after the establish-
ment of the guardianship, K.R. had issues with “wet[ting] her
pants” at school and was fearful, had nightmares, sleepwalked,
and sometimes woke up screaming.
Cynthia stated that K.R.’s symptoms had “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 Mark and Cynthia’s mail and that after seeing the let-
ter, she started hurting herself. She would hit herself, pull her
own hair, and squeeze her cheeks.
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 admitted that Heather
could not have expressed remorse or apologized directly to
K.R., because there was a court order prohibiting contact
between them.
Next to testify on behalf of Mark and Cynthia was Jeanne
Cattau, K.R.’s therapist. Cattau testified that K.R. had been
her patient since January 2015. Cattau testified that early
on in her therapy, K.R. disclosed that she had been bitten
and hit by others while in Heather’s care. She testified that
K.R. made more significant disclosures in May 2015. At that
time, K.R. disclosed that two minor boys, who were resid-
ing in Heather’s home, physically and sexually abused her
on multiple occasions. K.R. identified “Seth” as the primary
perpetrator but also made disclosures regarding his older
brother.
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, who was 2 or 3 years of age at the time; had seen one
of the boys choke her sister; and had also seen one of them sit
-5-
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
on her sister’s chest, making it difficult for her to breathe. K.R.
also reported “being forced to eat dog poop.”
Cattau also testified that K.R. told her that she had told
Heather about what Seth had done to her, but that when
Seth gave a different account of what had occurred, Heather
believed Seth and punished K.R. for sexual activity with
Seth. Cattau also testified that K.R. reported that she was left
in Seth’s care even after her disclosure of abuse to Heather.
Cattau testified that K.R. is still working through the resulting
guilt and blame.
Cattau also acknowledged that K.R. had recently started to
display additional emotional outbursts, such as hitting herself,
out of concern for the current proceedings. Cattau testified
K.R. had told her that 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 that she was not in favor of visitation
between Heather and K.R. at the time of trial. She testified
to certain steps she would like to see taken before she would
recommend visitation. Cattau also testified that she did not
support termination of the guardianship.
On cross-examination, Cattau admitted that she had met
Heather only one time, had never observed Heather and K.R.
together, and had not conducted any therapy with or evaluation
of Heather. She also testified that K.R. told her that Heather
told K.R. not to talk about what happened with Seth, because it
would “tear the family apart.”
On redirect, Cattau testified that Heather’s statements to
K.R. not to talk about the abuse concerned her. She testified
that this conduct would increase K.R.’s fears and contribute
to a “sense of guilt.” Cattau expressed concern that if Heather
was successful in terminating the guardianship, it could lead
to “re-victimization” of K.R. Cattau identified a lack of paren-
tal support as something that would contribute to continued
-6-
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
victimization of K.R. Cattau testified that this could lead to
internalization of blame, depression, self-harming behaviors,
self-harming comments, and other consequences.
Mark and Cynthia also called Heather to testify. She testified
that she had been married since November 2014 and had lived
with her husband since June 30, 2014. She also testified that
she was employed at the time of trial.
Heather testified that she knew in May 2014 about K.R.’s
being physically abused by Seth. She testified that when she
learned about the abuse, she asked Seth’s family to move out.
She testified that the family instead had Seth move to live with
an aunt, but 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.
Heather denied that K.R. ever told her about the sexual abuse
or that she told K.R. not to talk about it. Heather testified that
she thinks K.R.’s claim that Heather told her not to talk about
the abuse was influenced by Mark and Cynthia.
Heather testified that while she did not agree with her
conviction, she did acknowledge that “something horrible
happened to [K.R.], and essentially it was [Heather’s] fault”
but that it was nothing she did intentionally. She also testified
that she would “have to live with [failing to protect K.R.]
for the rest of [her] life” and that she would “never forgive
[her]self.”
Heather testified that in 2014, she underwent a chemi-
cal dependency evaluation and a psychological and parental
fitness evaluation and took a parenting class. In 2015, she
started seeing a therapist and continued until December 2016.
At that point, her therapist released her from therapy, and her
probation officer said that he would not require additional
therapy. In 2017, she took another psychological and parental
fitness evaluation, another chemical dependency evaluation,
and another parenting course. Heather testified that she had
complied with or was working toward complying with every
-7-
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
provision of her probation. Heather testified that there was a
no-contact order between K.R. and her and that she had not
attempted to contact K.R. since it was entered. Heather denied
ever telling K.R. that she should not talk about the abuse.
At the close of Mark and Cynthia’s case, Heather moved for
a directed verdict, which the court denied. Heather then pre-
sented her evidence, beginning with her own testimony.
Heather reiterated that she had taken the steps required by
the initial guardianship order. She testified that after a psycho-
logical parenting evaluation and chemical dependency evalu-
ation, it was recommended that she see a therapist to address
low self-esteem issues. She testified that she had completed
therapy and was discharged successfully. She testified that
she also completed a parenting class, as required by the order
establishing the guardianship, and had additionally obtained a
second psychological and parental fitness evaluation and taken
another parenting class focusing on parenting children who
have gone through trauma.
Heather testified that she recalled occasions during which
K.R. was talking about Seth and that she told K.R. that she
did not need to worry about him anymore, because he was no
longer capable of hurting her. Heather testified that K.R. may
have misunderstood these statements as telling her not to talk
about the abuse.
Heather was also asked whether she would be willing to
wait to have contact with K.R. until Cattau believed K.R.
was ready. Heather testified that she would not, because she
believed that Cattau obtained information only from Mark and
Cynthia and was biased against her.
Heather also called Dr. Stephanie Peterson, a clinical psy-
chologist, to testify on her behalf. She provided testimony
regarding psychological evaluations and parenting assessments
she performed on Heather. Peterson testified that based on her
evaluations and assessments, Heather “had all the qualities of
an adequate parent” and that she had matured in positive ways
between her first assessment of Heather in November 2014 and
-8-
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
a subsequent assessment in March 2017. Peterson also noted
that K.R.’s younger sister lives with Heather and that Peterson
was not aware of any issues or problems with Heather’s parent-
ing of that child. She testified that if a parent is competently
parenting one child, it indicates that the parent should be able
to competently parent another child.
County Court Order on Motion
to Terminate Guardianship.
Following trial, the county court entered an order denying
Heather’s motion to terminate the guardianship. In the order,
the county court stated that it would apply the parental pref-
erence principle. It explained that under the principle, Mark
and Cynthia were required to establish by clear and convinc-
ing evidence that Heather is unfit or has forfeited her right
to custody and that absent such a showing, reunification with
Heather was required by law.
The trial court then praised many of Heather’s actions after
the establishment of the guardianship as “commendable.” But
it also noted that Heather had failed to take responsibility
for what happened to K.R. It also stated that Heather “seeks
reunification because that is what she wants; not because it
is in the best interest of [K.R.].” The county court denied
Heather’s motions.
Heather appealed the county court’s decision.
Court of Appeals.
On appeal, Heather argued that the county court erred by
declining to terminate the guardianship or order any visitation.
She also argued that the county court improperly delegated to
Cattau the authority to make decisions regarding visitation and
termination of the guardianship.
The Court of Appeals affirmed. In its opinion, the Court
of Appeals stated that “there are two competing principles in
the area of child custody jurisprudence: the parental prefer-
ence principle and the best interests of the child principle.” In
re Guardianship of K.R., 26 Neb. Ct. App. 713, 722, 923 N.W.2d
-9-
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
435, 443 (2018). With respect to the parental preference prin-
ciple, the Court of Appeals noted that this court has previously
said that to deny a parent the custody of his or her minor child,
“it must be affirmatively shown that such parent is unfit to per-
form parental duties or that he or she has forfeited that right.”
Id. at 723, 923 N.W.2d at 443. But the Court of Appeals also
pointed to the following language in our opinion in Windham v.
Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016):
“We continue to adhere to the view that the parental
preference 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.”
In re Guardianship of K.R., 26 Neb. Ct. App. at 724, 923 N.W.2d
at 443.
The Court of Appeals relied on this language to hold that
there are rare cases in which the parental preference principle
can be rebutted by a showing that the child’s best interests
will be served by custody being awarded to a nonparent rather
than a parent. Based on the evidence in the record, particularly
Cattau’s testimony about how K.R. was still dealing with the
abuse, the Court of Appeals found that this was such a case.
The Court of Appeals also found that the county court did not
err in not ordering visitation and did not improperly delegate
to Cattau decisions regarding termination of the guardianship
and visitation.
We granted Heather’s petition for further review.
ASSIGNMENTS OF ERROR
Heather’s primary contention on further review is that the
Court of Appeals erred by affirming the county court’s denial
of Heather’s motions to terminate the guardianship and for
visitation on the grounds that the relief Heather sought would
be contrary to K.R.’s best interests.
- 10 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
She also claims that the Court of Appeals erred when it
found that the county court did not improperly delegate to
Cattau decisions regarding termination of the guardianship and
visitation. We find no error in the Court of Appeals’ disposi-
tion of this issue, and we see no need to comment on it fur-
ther. Accordingly, our analysis below is limited to whether the
Court of Appeals erred by affirming the county court’s order
denying Heather’s motions to terminate the guardianship and
for visitation.
STANDARD OF REVIEW
[1,2] Appeals of matters arising under the Nebraska Probate
Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue
2016 & Cum. Supp. 2018), are reviewed for error on the
record. See In re Guardianship of D.J., 268 Neb. 239, 682
N.W.2d 238 (2004). 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 appel-
late 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.
McManus Enters. v. Nebraska Liquor Control Comm., 303
Neb. 56, 926 N.W.2d 660 (2019).
ANALYSIS
[3] All the parties to this case and every court to have con-
sidered it agree that because Heather is K.R.’s parent, this
case is governed by what this court has dubbed the “parental
preference principle.” See, e.g., In re Guardianship of D.J.,
supra. That principle establishes a rebuttable presumption that
the best interests of the child are served by placing custody of
a minor child with his or her parent. See id.
Heather’s objection to the Court of Appeals’ decision is not
that it applied the parental preference principle. Instead, she
contends that the Court of Appeals erred by finding that the
parental preference principle was rebutted by a demonstration
- 11 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
that K.R’s best interests would be served by keeping the guard-
ianship in place and not allowing visitation. Heather argues
that allowing the parental preference principle to be rebutted
by a best interests showing dilutes the doctrine and violates
her right to due process under the 14th Amendment to the U.S.
Constitution. She argues that under this court’s precedent as
well as cases of the U.S. Supreme Court interpreting the 14th
Amendment, the parental preference principle can be overcome
only if the nonparent who seeks custody proves by clear and
convincing evidence that the parent is either unfit or has for-
feited his or her right to custody.
Heather correctly points out that on many occasions, this
court has said that under the parental preference principle,
absent proof that a parent is unfit or has forfeited the right to
custody, a parent may not be deprived of the custody of a minor
child. See, e.g., In re Interest of Lakota Z. & Jacob H., 282
Neb. 584, 804 N.W.2d 174 (2011); Farnsworth v. Farnsworth,
276 Neb. 653, 756 N.W.2d 522 (2008); In re Interest of Xavier
H., 274 Neb. 331, 740 N.W.2d 13 (2007); In re Guardianship
of D.J., supra; Gomez v. Savage, 254 Neb. 836, 580 N.W.2d
523 (1998). She asks that to the extent our opinion in Windham
v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016), held that the
presumption can be overcome by anything other than a show-
ing of unfitness or forfeiture, we overrule it.
Before reaching these arguments, however, we note that
while the Court of Appeals clearly found the parental prefer-
ence principle was negated by a best interests demonstration,
it is not so clear that the county court did the same. In fact,
before proceeding to analyze the issues raised by Heather’s
motions, the county court articulated the parental preference
principle precisely, as Heather contends the law requires.
It stated:
The parental preference principle applies in guardian-
ship proceedings that affect child custody and creates a
rebuttable presumption that the best interests of the child
are served by reuniting the minor child with his or her
- 12 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
biological parent. The current guardians must establish by
clear and convincing evidence that the biological parent
is unfit and/or has forfeited her right to custody. Absent
such a showing, the law requires reunification.
The county court went on to discuss evidence introduced at
trial that would bear on Heather’s fitness as a parent before
ultimately denying Heather’s motions.
In our view, the county court decision is best read as mak-
ing an implicit determination that Heather was not fit to have
custody of or visitation with K.R. The county court said that
absent a showing of unfitness or forfeiture, “the law requires
reunification,” and after discussing facts pertaining to Heather’s
fitness, it denied reunification. The county court’s order does
also contain some language referring to K.R.’s “best interests,”
but we do not think the order can logically be read as turning
on a best interests determination when the order states that a
finding of unfitness or forfeiture was the only basis upon which
Heather could be denied reunification with K.R.
Because we understand the county court to have denied
Heather’s motions on the ground that she was unfit to parent
K.R., we begin our analysis by reviewing that determination.
Did County Court Err by
Finding Heather Unfit?
[4] We have defined parental unfitness as “a personal defi-
ciency 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.” Farnsworth, 276 Neb.
at 657, 756 N.W.2d at 526. Mark and Cynthia primarily argue
that Heather’s unfitness was demonstrated by the conduct that
led to her child abuse conviction. We begin our consideration
of whether there was competent evidence to support a finding
of unfitness with that evidence.
Many witnesses testified to the facts that led to Heather’s
conviction. This testimony indicated that Heather left K.R. and
her younger sister alone for long periods of time with minor
- 13 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
boys who were members of a family temporarily staying at
Heather’s home. During that time, K.R. was abused by the
minor boys. There was evidence that this abuse was of both
a physical and sexual nature. K.R. reported to Cattau that the
physical abuse included biting, hitting, choking, and drowning,
as well as locking K.R. in a bathroom and forcing her to eat
dog feces. Heather does not dispute that K.R. was subjected to
physical and sexual abuse and that her child abuse conviction
was based on the theory that Heather failed to protect her from
that abuse.
This evidence unquestionably reflects poorly on Heather’s
parenting, but we must also consider when the conduct
occurred. There is some dispute between the parties as to when
Heather failed to protect K.R. from abuse. Heather contends
the abuse predated the establishment of the guardianship in
June 2014. Mark and Cynthia, pointing only to the charging
documents in the criminal case, contend that the abuse con-
tinued through May 2015. In either case, however, Heather’s
failure to protect K.R. from abuse concluded over 2 years prior
to the trial on Heather’s motions to terminate the guardianship
and for visitation.
The passage of time following the facts forming the basis
of Heather’s conviction affects the weight those facts can be
given in an unfitness analysis. In In re Interest of Lakota Z.
& Jacob H., 282 Neb. 584, 804 N.W.2d 174 (2011), we stated
that evidence of unfitness must be focused upon a parent’s
present ability to care for a child. We added that evidence of
a parent’s past misdeeds may be pertinent, “insofar as [they]
suggest[] present or future faults” and that “in some instances,
[they] may be very pertinent.” Id. at 594, 804 N.W.2d at 182
(emphasis in original).
We do not view Heather’s failure to protect K.R. from
abuse as entirely irrelevant to the fitness analysis. At the same
time, however, we question whether this evidence from at
least 2 years in the past would, standing on its own, support a
determination that Heather was unfit at the time of trial. That,
- 14 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
however, is a question we need not confront, because there was
other evidence in the record pertaining to Heather’s fitness. We
will discuss that evidence now.
While the basic facts underlying Heather’s child abuse
conviction are not disputed, the evidence introduced at trial
relating to Heather’s fitness as a parent conflicted on many
other points. Cattau testified that K.R. disclosed to her that
when K.R. told Heather about the physical and sexual abuse,
Heather not only did not believe K.R., she blamed and pun-
ished K.R. for engaging in sexual conduct and told K.R. not
to talk about it. At trial, Heather denied that K.R. informed
her of the sexual abuse or that she blamed K.R. for it. Heather
also testified that K.R.’s statements that Heather told her not
to talk about the abuse were the result of Mark and Cynthia’s
influence on K.R.
Testimony from Cattau also indicated that K.R. was left with
Seth after telling Heather about the abuse. Heather denied this
as well, contending that Seth left her home after she demanded
that his family leave.
There was also conflict in the testimony as to whether
Heather could effectively meet K.R.’s needs. Peterson testified
that based on her evaluations of Heather, there was no reason
to believe she would be an abusive or unfit parent. Cattau,
however, opposed termination of the guardianship or visitation
and outlined many concerns regarding contact between Heather
and K.R. In particular, Cattau expressed concerns about the
harm K.R. suffered as a result of Heather’s telling K.R. not to
talk about the abuse. Cattau testified to K.R.’s need for “paren-
tal support” and the negative consequences that were likely to
follow in the absence of such support. While Heather testified
to her belief that Cattau was biased and that the only infor-
mation she received was through Mark and Cynthia, Cattau
testified to steps she took to ensure that K.R. independently
disclosed information to her.
As the foregoing discussion illustrates, two very different
accounts of Heather’s fitness as a parent were presented at
- 15 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
trial. If Heather’s side of the story were believed, one would
find that after being informed that K.R. was being physi-
cally abused, Heather supported K.R., promptly took steps
to remove the abuser, recognized some of her faults as a par-
ent, took steps to address those deficiencies, and then at trial
accepted responsibility for her initial failure to protect K.R.
Under this view, Heather resisted Cattau’s opinion that contact
with Heather would be detrimental to K.R. only because Cattau
is a biased therapist who accepts everything Mark and Cynthia
tell her.
Other evidence, however, portrayed a different story. There
was evidence that K.R. told Heather she was being physically
and sexually abused and that Heather responded by not only
blaming K.R. for engaging in sexual activities but also telling
her not to talk about the subject and allowing the principal
perpetrator of the abuse to remain in her home. Heather denied
all of this at trial and even went so far as to assert that K.R.
said she told Heather about the abuse only because Mark and
Cynthia influenced her to do so.
While we are presented with conflicting evidence, our stan-
dard of review in this matter does not allow us to reweigh this
evidence or make our own factual findings. Rather, our task
is limited to determining whether there is competent evidence
to support a finding of unfitness by clear and convincing evi-
dence. As we will explain, we find there is competent evidence
to support such a finding.
As we have described above, evidence was introduced at
trial showing that K.R. informed Heather of the physical and
sexual abuse and that Heather disregarded K.R.’s complaints,
blamed her for the abuse, told her not to talk about it, and
allowed the perpetrator of the abuse to remain in her home.
Heather failed to accept responsibility for these actions and,
instead, denied them at trial and suggested that a portion of
K.R.’s account was not based in fact. We also note that at
trial, while Heather purported to accept responsibility for at
least allowing some abuse of K.R., she described her particular
- 16 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
failure as “trying to help some people out” and “allow[ing]
them into [her] home” and “because of that, [her] daughter was
hurt.” This description seems to minimize Heather’s culpabil-
ity for actions that ultimately resulted in a felony child abuse
conviction for knowingly and intentionally placing K.R. in an
abusive situation.
Many courts have recognized that the failure to accept
responsibility for past misconduct can indicate present unfit-
ness. See, e.g., K.D. v. People, 139 P.3d 695 (Colo. 2006); In
re C.N., 196 Ill. 2d 181, 752 N.E.2d 1030, 256 Ill. Dec. 788
(2001); In re Emma S., 177 A.3d 632 (Me. 2018); In re Kelly
S., 715 A.2d 1283 (R.I. 1998). We believe that is the case here.
In fact, we find that Heather’s failure to accept responsibility
is particularly relevant to the fitness determination, given testi-
mony regarding K.R.’s emotional needs.
Cattau testified that K.R. was emotionally harmed as a result
of Heather’s telling her not to talk about the abuse and was
dealing with a sense of guilt for “believing that she is responsi-
ble for tearing her family apart.” Cattau testified that a lack of
parental support would contribute to “continued victimization”
and outlined various negative consequences thereof. Cattau’s
testimony suggests that given the abuse she suffered and her
emotional state, K.R. is in particular need of support and vali-
dation from those who care for her.
Courts in other jurisdictions have recognized that when a
child develops special needs as a result of past misconduct
by a parent, a parent’s inability to meet those needs bears on
parental fitness. For example, in Matter of Welfare of M.A.,
408 N.W.2d 227 (Minn. App. 1987), a Minnesota appellate
court affirmed a finding of unfitness based in part on the par-
ent’s inability to meet the emotional needs of a child arising
as a result of past physical abuse committed by the parent.
Similarly, in Matter of K.M.M., 186 Wash. 2d 466, 379 P.3d 75
(2016), the Washington Supreme Court affirmed a trial court’s
finding that a father was unfit based on the determination that
the father, who had not had substantial contact with his child
- 17 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
after the child was removed from the home due to neglect, was
unable to parent the child because of a lack of attachment. The
court emphasized that “in order to determine whether a parent
is a fit parent to a particular child, the court must determine
that the parent is able to meet that child’s basic needs.” Id. at
494, 379 P.3d 90 (emphasis in original). See, also, In re Scott
S., 775 A.2d 1144, 1151 n.14 (Me. 2001) (“[t]his does not
mean that the facts relating to the children’s needs should not
be considered in determining the parents’ capacity to care for
them. To the contrary, the parents’ actions and abilities must be
understood and judged in the context of the health, ages, and
needs of the children”).
We find these cases instructive because there is competent
evidence here that K.R. has needs arising from Heather’s
past misconduct and that Heather, at the time of the trial, was
unable to meet those needs. As noted above, Cattau’s testimony
suggests that K.R.’s needs include support and validation from
parental figures. At trial, however, Heather continued to deny
K.R.’s account and to blame Mark and Cynthia for influencing
K.R. to fabricate details. Put in terms of our unfitness standard,
there was competent evidence that Heather has a deficiency
or incapacity that will probably prevent her from performing
reasonable obligations to K.R., which will probably result in
detriment to K.R.’s well-being. See Farnsworth v. Farnsworth,
276 Neb. 653, 756 N.W.2d 522 (2008).
Heather’s inability to meet K.R.’s unique needs also distin-
guishes this case from In re Interest of Xavier H., 274 Neb.
331, 740 N.W.2d 13 (2007). In that case, the State sought
termination of a mother’s parental rights as to one of her
three children. We held that the evidence was insufficient to
establish that termination was in the child’s best interests. We
pointed out that the State had admitted that the mother was
an adequate parent to her other two children, but had failed
to show any reason why the mother would not be an adequate
parent to the third child as well. In this case, while there is
evidence that Heather has custody of K.R.’s younger sister and
- 18 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
no evidence that she is unfit to parent that child, the evidence
described above supports a finding that Heather is not fit to
parent K.R.
For these reasons, we find that there was competent evi-
dence supporting the county court’s finding that Heather was
unfit at the time of trial. Because guardianships are tem-
porary and depend upon the circumstances existing at the
time, our findings would not foreclose Heather from seeking
visitation or termination of the guardianship in the future.
See In re Guardianship of Zyla, 251 Neb. 163, 555 N.W.2d
768 (1996).
Role of Best Interests in Parental
Preference Principle Analysis.
Because we find that there was competent evidence to
support the county court’s finding that Heather was unfit to
parent K.R., there is no reason for us to consider Heather’s
argument that the Court of Appeals erred by finding that the
parental preference principle was rebutted by a showing that
it was in K.R.’s best interests for the guardianship to remain
in place. For the same reason, there is no need to consider
Heather’s request that we overrule Windham v. Griffin, 295
Neb. 279, 887 N.W.2d 710 (2016), to the extent it holds that
the parental preference principle can be negated by a showing
that it is in the child’s best interests for a nonparent to have
custody rather than a parent. We do, however, take this oppor-
tunity to make some observations regarding the interaction of
the parental preference principle and the best interests of the
child standard.
With a citation to Windham, the Court of Appeals found
that this is “one of those rare cases where the best interests
of the child defeats the parental preference principle.” In re
Guardianship of K.R., 26 Neb. Ct. App. 713, 724, 923 N.W.2d
435, 444 (2018). The Court of Appeals noted various pieces
of evidence it considered relevant to its best interests analysis,
but it did not otherwise explain why it believed this was such
a case. We note that the Court of Appeals followed a similar
- 19 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
approach in a case issued shortly after its opinion in this case.
See State on behalf of Lilliana L. v. Hugo C., 26 Neb. Ct. App.
923, 924 N.W.2d 743 (2019). While it is not necessary for us
to determine whether the Court of Appeals erred in these cases,
we believe caution is warranted in this area for reasons we will
briefly explain.
First, Windham cannot be read to stand for the proposi-
tion that the parental preference principle will be rebutted in
every case in which the nonparent might prevail in a pure best
interests comparison. In Windham, we rejected the nonparent’s
invitation to “examine the merits as though [the parent and
nonparent] were standing on equal footing and the outcome
would be determined only by reference to best interests.” 295
Neb. at 290, 887 N.W.2d at 718. Instead, we emphasized that
the parental preference principle could not be rebutted by a
showing that the nonparent can “provide more amenities and
a better life” or “‘“‘merely because on financial or other
grounds a stranger might better provide.’”’” Id. at 291, 292,
887 N.W.2d at 719.
Second, while Windham makes clear that there will be
cases in which a best interests showing will be insufficient
to overcome the parental preference principle, we did not
have the occasion in Windham to explore the circumstances
in which a best interests showing could negate the presump-
tion. Our opinion in Windham did cite a case from a Florida
intermediate appellate court in which the court affirmed a
trial court’s award of custody to an ex-stepmother rather than
the child’s natural father based on the child’s best interests
rather than a finding of unfitness, but we did so only in the
course of noting that it was distinguishable from the facts
before us. We also note that courts in other states have not
taken a uniform approach to the question of when, if ever, a
court may deny a parent custody of a child based on a deter-
mination that the child’s best interests lie elsewhere. See,
e.g., Watkins v. Nelson, 163 N.J. 235, 748 A.2d 558 (2000)
(collecting cases).
- 20 -
Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
IN RE GUARDIANSHIP OF K.R.
Cite as 304 Neb. 1
For reasons we have noted, this case does not present the
opportunity to exhaustively explore the interplay of the best
interests standard and the parental preference principle. We
urge courts, however, to be mindful of the above considerations
when confronted with an argument that custody of a child
should be awarded to a nonparent rather than a parent because
doing so would be in the best interests of the child.
CONCLUSION
Because we find that the county court’s determination that
Heather was unfit to parent K.R. was supported by competent
evidence, we affirm the decision of the Court of Appeals, albeit
on different grounds.
A ffirmed.