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In re Guardianship of K.R.

Supreme Court of Nebraska

September 6, 2019

In re Guardianship of K.R., a minor child. Heather R., appellant,
Mark R. and Cynthia R., Guardians, appellees.

         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 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.

         3. Child Custody: Parent and Child: Presumptions. The parental preference 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, Riedmann, and Welch, Judges, on appeal thereto from the County Court for Douglas County, Marcela A. Keim, Judge. Judgment of Court of Appeals affirmed.

          Julie A. Frank for appellant.

         [304 Neb. 2] Patrick A. Campagna, of Campagna Law, PC, 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 guardianship 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, finding 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 competent evidence. Accordingly, we affirm, although based on different reasoning than that of the Court of Appeals.


         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 coguardians 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 [304 Neb. 3] agreement was adopted by the court in an October 29, 2014. order. The order required Heather to complete certain requirements: 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 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 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 sentenced 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 [304 Neb. 4] 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 establishment 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 letter, 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 residing 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 [304 Neb. 5] 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 ...

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