In re Guardianship of K.R.
304 Neb. 1
Neb.2019Background
- In 2014 Heather agreed to have her parents, Mark and Cynthia, appointed coguardians of her daughter K.R.; the order required psychological/chemical-dependency evaluations and set supervised parenting time.
- In 2015 K.R. disclosed to her therapist that she had been physically and sexually abused by minors living in Heather’s home; visitation was suspended and Heather was later convicted of Class IIIA felony child abuse (failure to protect).
- Heather complied with court-ordered evaluations, therapy, and parenting classes, contested some factual allegations, and sought termination of the guardianship and reinstatement of visitation in 2017.
- At trial the child’s therapist testified that K.R. remains traumatized, that Heather previously disbelieved or punished K.R. and told her not to discuss the abuse, and recommended against visitation; Heather presented a psychologist who found her a competent parent to her younger child.
- The county court denied Heather’s motions, applying the parental preference principle and implicitly finding Heather unfit; the Court of Appeals affirmed based on a best-interests finding; the Nebraska Supreme Court affirmed on the alternate ground that competent evidence supported the county court’s finding Heather was unfit at the time of trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the parental-preference presumption can be rebutted by a best-interests showing alone | Heather: presumption may be overcome only by clear-and-convincing proof of parental unfitness or forfeiture | Grandparents: a rare best-interests showing can rebut the presumption | Court did not decide broadly; affirmed on unfitness grounds and declined to overrule Windham — cautioned about using pure best-interests to displace parental preference |
| Whether the county court erred in finding Heather unfit to parent K.R. | Heather: past misconduct was remote and she had remediated, so she was fit | Grandparents: evidence (including Heather’s failure to protect K.R., denial/minimization of responsibility, and inability to meet K.R.’s trauma-related needs) showed unfitness | Held: competent evidence supported the county court’s clear-and-convincing finding that Heather was unfit at trial |
| Whether visitation should have been reinstated | Heather: she complied with orders and is entitled to visitation under parental preference | Grandparents: visitation would harm K.R. given trauma and therapist opinion | Held: visitation denial affirmed as consistent with the unfitness finding and trial evidence |
| Whether the court improperly delegated visitation/termination decisions to the therapist | Heather: trial court improperly deferred to therapist Cattau | Grandparents: therapist’s testimony was admissible and relevant; no unlawful delegation | Held: Court of Appeals correctly found no improper delegation; Supreme Court saw no error and declined extended comment |
Key Cases Cited
- Windham v. Griffin, 295 Neb. 279 (2016) (discusses interplay of parental-preference principle and best-interests analysis)
- In re Guardianship of D.J., 268 Neb. 239 (2004) (articulates parental-preference principle in guardianship proceedings)
- Farnsworth v. Farnsworth, 276 Neb. 653 (2008) (defines parental unfitness standard)
- In re Interest of Lakota Z. & Jacob H., 282 Neb. 584 (2011) (emphasizes focus on parent’s present ability to care for child)
- In re Interest of Xavier H., 274 Neb. 331 (2007) (distinguishes cases where parent is adequate for other children)
- In re Guardianship of Zyla, 251 Neb. 163 (1996) (notes guardianships are temporary and depend on present circumstances)