In re Guardianship of K.R., a minor child. Heather R., appellant,
Mark R. and Cynthia R., Guardians, appellees.
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.
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
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.
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
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.
A. Frank for appellant.
Neb. 2] Patrick A. Campagna, of Campagna Law, PC, L.L.O., for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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.
of Guardianship for K.R.
is the biological mother of K.R., born in 2007. Appellees,
Mark R. and Cynthia R., are Heather's parents and
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.
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.
Is Convicted of Child Abuse.
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
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.
on Motions to Terminate Guardianship and for Visitation.
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.
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.
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.
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
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
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.''
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.
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 ...