In re Guardianship of DJ

• Decision Date: 02 July 2004
• Docket Number: No. S-02-129.,S-02-129.
• Citation: 268 Neb. 239,682 N.W.2d 238
• Parties: In re GUARDIANSHIP OF D.J., a minor. Carla R., appellant, v. Tim H. and Sherry H., Guardians, and Tory J., appellees.
• Court: Nebraska Supreme Court

682 N.W.2d 238

268 Neb. 239

In re GUARDIANSHIP OF D.J., a minor.

Carla R., appellant, v. Tim H. and Sherry H., Guardians, and Tory J., appellees.

No. S-02-129.

Supreme Court of Nebraska.

July 2, 2004.

Sally A. Rasmussen, of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., Lincoln, for appellant.

P. Stephen Potter, P.C., Gothenburg, and Jeffrey M. Eastman, Ogallala, for appellees Tim H. and Sherry H.

Michael E. Piccolo, of Dawson & Piccolo, North Platte, for appellee Tory J.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

At a time of financial and emotional difficulties, the appellant, Carla R., asked her parents to care for her biological child. Thereafter, Carla signed a petition for her parents to be appointed guardians for her child. The county court ordered the guardianship. Three years later, having achieved financial security and emotional well-being, Carla sought to regain custody of her child. Finding that Carla had forfeited her parental rights and that the best interests of her child would be served by continuing the guardianship, the county court denied her petition to terminate the guardianship. Carla appeals, and for the reasons that follow, we reverse, and remand with directions.

FACTUAL AND PROCEDURAL BACKGROUND

On July 25, 1992, Carla and Tory J. were married. On June 7, 1993, their child, D.J., was born. Thereafter, Carla and Tory's marriage began to deteriorate, and Tory moved out of their home in 1996. At that time, Carla lived in her own home in Max, Nebraska, but spent much of her time with her parents, Tim H. and Sherry H. (collectively the grandparents), who also lived in Max. Carla worked full time, and, since shortly after D.J.'s birth, most of D.J.'s time was spent with the grandparents.

In July 1997, Carla moved to Lincoln, Nebraska, in search of work. Believing she could not properly care for D.J., and suffering emotionally from the separation with Tory, Carla left D.J. in the care of the grandparents. Carla testified that during her time in Lincoln, she maintained consistent contact with D.J. through monthly visits, telephone calls, and letters and gifts sent via the mail. However, the grandparents dispute the existence of much of this contact.

On June 8, 1998, Carla and Tory filed a petition for appointment of a guardian for D.J. The petition nominated the grandparents to serve as the guardians for D.J. In addition, both Tory and Carla filed corresponding affidavits in support of appointing the grandparents as guardians. On July 7, the grandparents accepted the appointment, and on July 13, the county court filed its order appointing the grandparents as guardians.

Carla testified that prior to filing the petition for guardianship, she consulted a lawyer to discuss her pending divorce action. Carla testified that she informed the lawyer that she wanted custody of D.J., but that the lawyer told her that she could not have custody because D.J. was not living with her at the time. According to Carla, the lawyer then gave her a document, purportedly the petition to establish a guardianship over D.J., for her signature. Carla testified that her mother, who was present at this meeting, told her the purpose of the document was to preclude Tory from taking D.J. in the middle of the night. Carla signed the petition and an affidavit which was notarized by her mother.

According to Carla, the lawyer failed to explain the ramifications of establishing a guardianship and advised her about "the ease" with which a guardianship could be terminated. Carla also testified that the lawyer was representing the grandparents in their attempt to become guardians of D.J. and that the lawyer failed to tell her of this potential conflict of interest. Carla testified to these facts under oath and discussed them in her appellate brief. However, Carla's pleadings in this proceeding did not allege that the initial establishment of the guardianship was the result of undue influence or fraud. Therefore, we assume for the purposes of deciding this appeal that the guardianship was properly ordered in the first instance.

While in Lincoln, Carla began to abuse alcohol and drugs. In an attempt to solve her substance abuse problem, Carla left Lincoln and moved back into her parents home in January 1999. Carla stayed with her parent's through July, when she returned to Lincoln in search of a job. Carla testified that she attempted to take D.J. with her to Lincoln at this time; however, her parents dispute this claim. In any event, Carla testified that she traveled 240 miles to Max on numerous occasions to visit with D.J. and supplemented those visits with telephone calls and gifts.

On August 12, 2000, Carla married Brian R. At the time of trial, Carla and Brian lived in Roca, Nebraska, with Brian's daughter from his first marriage and a child born to Brian and Carla on February 17, 2001. Carla testified that she has not used illegal drugs since January 1999 and is employed as a licensed practical nurse at a rehabilitation hospital in Lincoln.

Three years after the guardianship was ordered, Carla filed a petition with the county court, pursuant to Neb.Rev.Stat. § 30-2616 (Reissue 1995), to remove the grandparents as guardians of D.J. and terminate the guardianship. In the petition, Carla alleged that she was now able to assume full care, custody, and control of D.J. and that it was in D.J.'s best interests to be reunited with her. The grandparents filed an answer to the petition which disputed these allegations.

After trial, the county court found that D.J. had thrived in the grandparents' care and that D.J. had developed a strong attachment to them. The court recognized that Carla, as the natural parent, had a superior right to the custody of D.J., but determined that she had forfeited that right by "substantial, continuous, and repeated failure to discharge her duties of parental care and protection." The court went on to conclude that it was in the best interests of D.J. to continue in the guardianship, and denied Carla's petition. Carla filed a timely appeal.

ASSIGNMENTS OF ERROR

Carla assigns, restated, that the county court erred in (1) finding that she had forfeited her parental rights to D.J., (2) failing to terminate the guardianship of D.J. and remove the grandparents as guardians, (3) admitting expert testimony without proper foundation, (4) admitting inadmissible hearsay, and (5) failing to maintain an impartial and unbiased role at trial.

STANDARD OF REVIEW

Appeals of matters arising under the Nebraska Probate Code, Neb.Rev.Stat. §§ 30-2201 through 30-2902 (Reissue 1995 & Cum.Supp.2002), are reviewed for error on the record. In re Loyal W. Sheen Family Trust, 263 Neb. 477, 640 N.W.2d 653 (2002). 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.

ANALYSIS

Section 30-2616 states, in relevant part:

(a) Any person interested in the welfare of a ward ... may petition for removal of a guardian on the ground that removal would be in the best interest of the ward....

(b) After notice and hearing on a petition for removal ... the court may terminate the guardianship and make any further order that may be appropriate.

We begin by determining the standard of proof necessary for a biological parent to terminate the guardianship with respect to their child. Specifically, we must determine if under § 30-2616, the sole inquiry in such a termination proceeding is whether it is in the child's best interests to terminate the guardianship and reunite the child with his or her natural parent, or whether the parental preference principle establishes a rebuttable presumption that the best interests of the child are served by terminating the guardianship and reuniting the child with his or her natural parent.

The resolution of this question requires us to examine two different principles found in child custody jurisprudence. On one hand, we have stated that the paramount concern in child custody disputes is the best interests of the child. See Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002). See, also, § 30-2616(a) ("[a]ny person interested in the welfare of a ward ... may petition for removal of a guardian on the ground that removal would be in the best interest of the ward").

On the other hand, the principle of parental preference provides that a court "may not properly deprive a biological or adoptive parent of the custody of the minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship or has forfeited that right." In re Interest of Amber G. et al., 250 Neb. 973, 982, 554 N.W.2d 142, 149 (1996). See, also, § 30-2608(a) ("[t]he father and mother are the natural guardians of their minor children and are duly entitled to their custody ... being themselves competent to transact their own business and not otherwise unsuitable").

Obviously, the parties disagree as to the proper interaction of these two principles and their application to the facts before us. Noting the tension between the two aforementioned statutes, Carla argues that the best interests analysis is always subject to the overriding consideration of a natural parent's superior rights, which, as we will discuss below, are founded in the U.S. Constitution. The grandparents dispute this assertion and argue that under § 30-2616, whether to terminate a guardianship is solely a question of the best interests of the ward.

For the following reasons, we conclude that in guardianship termination proceedings involving a biological or adoptive parent, the parental preference principle serves to establish a rebuttable presumption that the best interests of a child are served by reuniting the child with his or her parent.

We have stated that "[t]he right of a parent to...