In re Guardianship of Kyoko R. ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE GUARDIANSHIP OF KYOKO R.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE GUARDIANSHIP OF KYOKO R., A MINOR CHILD.
MARY S. AND MARTIN S., COGUARDIANS AND
COCONSERVATORS, APPELLANTS,
V.
MARCIA S., APPELLEE.
Filed October 15, 2019. No. A-18-595.
Appeal from the County Court for Douglas County: THOMAS K. HARMON, Judge.
Affirmed.
Richard J. Schicker for appellants.
Marcia S., pro se.
MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Mary S. and Martin S. appeal the order of the Douglas County Court terminating their
guardianship of their 15-year-old granddaughter Kyoko R. Mary and Martin (collectively the
Guardians) assign nineteen assignments of error which can be summarized into the following
major categories: The court erred (1) in its handling of the in camera interview of Kyoko; (2) in
failing to include questions submitted to the court by the parties (to be considered by the court in
conducting the in camera interview) as part of the transcript or supplemental transcripts; (3) in, sua
sponte, taking judicial notice of the pleadings in the case without notice to the parties and providing
the parties the opportunity to respond; (4) in creating a record which contains reference to certain
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“indiscernible” responses throughout Kyoko’s in camera interview; (5) in committing evidentiary
errors in connection with the offer of certain exhibits and evidence; and (6) in numerous findings
contained in the portion of the court’s order entitled “findings of fact and conclusions of law”
which resulted in error in its order terminating the guardianship. For the reasons set forth herein,
we affirm.
II. STATEMENT OF FACTS
This case involves the Guardians’ guardianship of their granddaughter Kyoko, who was
born in 2002. Marcia S. and Lawrence R. are Kyoko’s biological parents. Although they never
married, they resided together and jointly cared for Kyoko until they separated when Kyoko was
about 2 years old. Following their separation, Kyoko lived at times with Lawrence, at times with
Marcia, and at times with Alma F., who was Lawrence’s mother. Marcia, Lawrence, and Alma
worked collectively and cooperatively in raising Kyoko. This arrangement was a voluntary
arrangement among them and there was no court-ordered separation or legal custody
determination. This arrangement lasted until Lawrence’s death in October 2013.
Following Lawrence’s death, Marcia agreed to allow a despondent Kyoko, then 11 years
old, to live with Alma because Kyoko expressed that she preferred to live with Alma because it
made her feel closer to Lawrence. Shortly thereafter, in January 2014, Marcia agreed to the
appointment of Alma as Kyoko’s guardian on a temporary basis due to circumstances in Marcia’s
life including her pending March 2014 incarceration in Missouri on a fourth-offense driving under
the influence (DUI) conviction.
Alma served as Kyoko’s guardian until Alma’s own incarceration later in 2014. Prior to
Alma’s incarceration, Alma chose her daughter, Melissa B., to care for Kyoko in her absence.
Although Alma attempted to regain physical custody of Kyoko at the end of her 1-year term of
incarceration, she learned that Melissa had been appointed as Kyoko’s guardian requiring a
transition. However, while awaiting the transition, Marcia’s parents, Martin and Mary, were
appointed as Kyoko’s guardians.
After Marcia’s release from incarceration in July 2016, Marcia commenced visitations with
Kyoko and eventually filed to terminate the Martin and Mary’s guardianship. After Marcia’s
release from incarceration and, until the time of the hearing, the Guardians allowed Kyoko, at
times, to stay with foster parents; with the family of one of Kyoko’s close personal friends; and
with Alma. Eventually Kyoko resided with the Guardians in Gretna.
1. PRETRIAL
In October 2016, Marcia filed a petition to terminate Kyoko’s guardianship with Martin
and Mary. Trial in this matter was held in May 2018. Prior to the commencement of the trial, the
court informed the parties that it intended to conduct an in camera interview of Kyoko. The court’s
explanation of the reason for the in camera interview and process to be followed was captured in
the following colloquy between the court and Mr. McCann, attorney for the Guardians:
THE COURT: . . . Number two, as it relates to my interview of the child, these are
my rules as it relates to that interview. I will interview the child, but it will not be today.
I’m going to allow the guardian ad litem, I’m going to allow the mother, and I’m going to
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allow Mr. McCann to submit questions to me that you would like me to pose. The interview
itself will not take place in front of any of the parties; not in front of the mother. The only
party that will be available to the youngster is the guardian ad litem, who will arrange a
time when she and I can visit. I reserve the right to use your questions. I’ll choose those
questions which I deem to be appropriate under the circumstances. That’s my intention as
it relates to the interview of the child. Any comments as it relates to that?
MR. McCANN: My question would be, on the interview of the child, would there
be a record made of that?
THE COURT: I will absolutely be on -- it will be in front of my bailiff and -- it will
be in the presence of my bailiff and I will arrange a time when the guardian ad litem can
present the child to me to conduct that interview. But I will give each of the parties an
opportunity -- and I’ll make that determination after I hear the evidence as to when that
will occur, and I will give everyone an appropriate amount of time to submit those
questions.
MR McCANN: So when you say the bailiff would be present, that means that --
THE COURT: She will be recording. My bailiff here is my -- we do not have a
court reporter. My bailiff will act as my court reporter and everything that I do, up to and
including each and every question, will be on the record. So, in the event that [Marcia] or
you, Mr. McCann, choose to appeal any decision I make, there will be a record of what the
child told me under oath. It will be under oath, but it’s been my experience over a long
period of time that I will have a better opportunity to visit with her, in her position, without
any pressure from the grandparents and from the mother . . . .
After admonishing the parties not to have any conversation with Kyoko about her
testimony, and after clarifying the timing of the interview in relation to that, the following colloquy
ensued:
MR. McCANN: No questions about that. I understand the ruling of the Court. My
clients understand the ruling of the Court. The question would be -- that did come up, I
take it the order would be true as -- not only as to the parties, legal representatives --
THE COURT: Correct.
MR McCANN: -- and other witnesses to the case?
THE COURT: No individual will be required -- and I will enter a specific order at
the conclusion of this hearing today that no one will talk with Kyoko about this interview.
And if I find that they did, I will hold a hearing to determine whether or not I’m going to
find that individual in contempt for violating that order, and it will be clear when I’m
finished here today.
The court then dictated an order consistent with the above-stated colloquy in the presence
of the parties. Following that dictation, in response to the court’s request to discuss any other
preliminary matters, the following took place:
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MR. McCANN: Your Honor, with respect to the court proceedings involving
[Kyoko], may the parties and counsel be present in the hallways and at the courthouse in
case --
THE COURT: No. No. No. The only person to be around is Kyoko and her guardian
ad litem, period. Any other questions?
MR. McCANN: Nothing further.
Neither party, nor the guardian ad litem (GAL), objected to the court’s stated process for
interviewing Kyoko during the hearing or at trial.
2. TRIAL
Trial was held over 3 days in May 2018. The Guardians called Marcia, Martin, and Dr.
Thomas Haley as witnesses. Marcia called herself as a witness along with Alma and Jessica
Workman, Marcia’s long-time acquaintance. Additionally, the court conducted an in camera
interview of Kyoko with only the GAL present.
(a) Guardian’s Witnesses
(i) Marcia
Marcia testified that, following her release from incarceration in 2016, she visited Kyoko
whenever she could and attended Kyoko’s parent-teacher conferences and track meets when she
could and when she was not constrained by issues involving her 1-year-old child. She denied
improperly supervising Kyoko or allowing her to use marijuana in her presence. Marcia testified
that her relationship with Kyoko’s foster parents was very good, the visitations were amicable, and
that her visits with Kyoko were only strained when the Guardians were involved. While raising
Kyoko, Marcia testified her relationship with the Guardians was strained. Marcia testified that she
saw a counselor due to her relationship issues with the Guardians, and testified she had been
diagnosed with PTSD, anxiety, and attention deficit disorder and she acknowledged taking
medication for her medical conditions.
Marcia testified that, since her release from prison in 2016, she has worked to change her
life so that she could be a responsible parent to Kyoko. In her own words, in response to a question
governing whether she had a second child out-of-wedlock in order to reunify her with Kyoko,
Marcia stated:
I wouldn’t say - I was expecting to be reunited with Kyoko anyway, because all of my
plans were to make good decisions and to be the strong mother that, you know, I have
always tried to be. Obviously, I’ve made some mistakes. But, I mean, I took all of the
classes they had in prison. I tried to make the best of it. I wanted to be the -- especially
with -- she was always daddy’s girl, but with her dad being in heaven, like, I know I had
to step up even more, you know. But, like, I didn’t have any -- I never thought this would
be dragged out for years, like, I mean, the way it has been. Because I expected -- I planned
fully to get out and make good choices, and I did. I got off parole. I passed my drug tests.
Like, I was successful with everything and I thought I’d have her back within a couple of
months. Like, I didn’t know they’d stop [sic] fighting me. I mean, they’re -- I mean, any -- I
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don’t really feel like they’re my parents, because of the way they always treated me. But,
like, I thought they’d be proud of me and I thought they’d support all the changes I’m
trying to make in my life. I thought I’d have her back a long time ago, I mean.
In response to questions governing whether Marcia has made good decisions since her
release from prison, Marcia stated she does not abuse her prescription medications and only takes
medication as prescribed and coordinated by her team of doctors. She acknowledged living in
numerous different residences relating back to periods prior to her incarceration but stated that she
moved to improve her living conditions. Marcia acknowledged that her monthly income is limited
to $1,500 in disability benefits that she receives due to her diagnosis of fibromyalgia along with
government benefits she receives relating to her 1-year-old child and limited funds from some
photography shoots in furtherance of her efforts to start her own photography business. In addition
to the photography business that she acknowledged is slow in progressing, Marcia testified she is
looking for other jobs in which she could more rapidly expand her portfolio.
Marcia testified that she named her photography business, “Midnight Reflections,” and she
intended to expand her business platform into web-based design, graphic design, and music
production. Marcia denied being involved in prostitution and explained that she was issued
a misdemeanor citation in 2012 after a conversation with an undercover officer which resulted
in the charge. She stated that was a one-time issue and is not part of her current life or
business. She also admitted that on or about the same time, she created the domain
MidnightReflections@gmail.com and a GoDaddy account registered at Alma’s address both of
which advertised sexually explicit material, but she denied ever having a sex-related business, that
the domains were designed at the request of an acquaintance, and that she removed the domains
within two weeks of their creation. She stated that these were reflective of prior bad decisions,
associating with the wrong people, and do not reflect who she is now or her intentions going
forward.
Marcia testified that she lives at her current residence with her 1-year-old child. She stated
that she and the child’s father only dated a few times and were never married. She acknowledged
that the father of her child is now incarcerated and she does not rely on him for support. She
testified that she is financially capable of caring for her 1-year-old child and Kyoko and that she
had a bedroom available for Kyoko when she returns to her care. She acknowledged having debt
relating to her former education costs and medical bills, but that she has worked with credit
counselors to establish payment arrangements which will clear up her credit. In sum, she testified
that she has matured, has changed her lifestyle, and although she voluntarily agreed to the
guardianship of Kyoko when she could not properly attend to her, she is now ready to resume her
parenting role.
(ii) Dr. Thomas Haley
Dr. Thomas Haley testified that he was retained by the Guardians pursuant to a motion and
resulting court order. Dr. Haley testified to having performed a parental fitness examination of
Marcia although the substance of the order requested him to perform a mental health examination.
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Dr. Haley testified that he is a psychologist who has practiced as a counselor since 1973 and works
with individual adults, children, families, and persons with disabilities.
Dr. Haley testified that he performed the evaluation of Marcia in October 2017. In
connection with that evaluation, he reviewed Marcia’s medical records supplied to him, Marcia’s
deposition testimony, and the report filed by the GAL. Dr. Haley also testified that he performed
a series of psychology-based tests on Marcia along with a mental status examination.
After performing his examination of Marcia, Dr. Haley reported he had concerns with
Marcia abusing prescription medications. He testified that Marcia was reluctant to participate in
his evaluation and was quite nervous. He testified that, during her interview, Marcia minimized
her alcohol use and abuse despite reporting she had been previously convicted of fourth offense
DUI in 2014. Dr. Haley opined that Marcia appeared to have average to above average intelligence;
was logical in her thought processes; her memory was intact; and her capacity for attention,
concentration, and focus was intact. Dr. Haley reported that Marcia indicated that she had no social
skills until age 20, that her parents abused her, and told her she had to tell others they were a happy
family. She stated she was homeschooled and brainwashed by her parents. She stated she left home
at 19 and finished a 2-year degree in juvenile perspectives at Iowa Western Community College
in 2004 or 2005. According to Dr. Haley, the history furnished by Marcia was inconsistent with
her record of receiving a GED while in prison between 2014 and 2016.
Dr. Haley opined that Marcia presents with “some very difficult mood disorder, thought
disorder, and personality variables/difficulties that would impair her ability to carry out her
parenting responsibilities.” He stated that, because of her pathology, “through either resentment or
difficulty with relationships or difficulty with the trust of others, her impulsivity, her lack of
accepting responsibility, that all interferes with the expectations of parenting.” Dr. Haley
acknowledged there was no difficulty with Marcia currently raising her 1-year-old daughter to this
point, but he opined that as her child grows, there will be difficulty in relation to encouraging
development, expectations, setting limits, and teaching. Dr. Haley ultimately concluded that
“[Marcia]’s unfit and unable to parent [Kyoko] because of ongoing addiction issues, and
personality problems, and mood and impulse control problems.”
Specifically, in relation to Dr. Haley’s concerns of prescription medication abuse, he
testified:
A. In terms of contact with mental health providers, the psychiatrists, other things,
basically she’s getting Adderall, Norco, atenolol, and Xanax, and is -- looks to be getting
it from two or three separate physicians.
Q. What’s the significance of that?
A. Well, it’s to be able to abuse the drugs.
Q. You’ve reviewed Dr. Robert Cervantes (sic) records?
A. I did.
Q. And what did you find significant in those records?
A. Well, September 1st, the Adderall was started by Dr. Cervantes. And then she’s
also -- was seeing Dr. Julie Rothlisberger-Castillo and is getting Norco, atenolol, and
Xanax from her. And the two doctors do not know about each other and she did not inform
either physician of her history or the reason for her incarceration.
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Q. So what is the significance of that finding and observation?
A. Well, again, it’s to abuse the drugs.
On cross-examination, Marcia, who was not represented at the time of trial, engaged in the
following colloquy with Dr. Haley:
Q. Well, did you -- I don’t know what all records you had, but did you realize that
all of CHI -- it’s, like, the company that bought out Alegent. Do you realize they’re all
connected? Like, you might have a counselor here, a doctor here, a psychiatrist here. I
mean, all -- everything is right there in the computer. Different doctors see you for different
issues and different doctors prescribe medications. Did you realize they’re all connected?
A. Yes.
(iii) Martin S.
Martin testified that he and Mary moved to Gretna in August 2017 in order to enroll Kyoko
in that school district. He testified that Marcia was their only child, that they have been involved
with raising Kyoko from the beginning of her life, and have always seen her at least 2 to 3 days
per week, they were very close with Kyoko’s father when he was alive, and Martin did not believe
that Marcia was capable of raising Kyoko. He testified that following Lawrence’s death, Kyoko
spent less time staying with Marcia which evolved into a guardianship with Alma in part because
Marcia’s dwelling was below livable standards. Martin then described certain episodes that
occurred during that timeframe where Marcia was involved in problematic alcohol consumption
and hallucinations and was eventually incarcerated for fourth offense drunk driving in 2014. He
also testified that when Marcia left their home when she was 19, Marcia told her parents that she
was afraid they were going to kill her. Martin testified that he and Mary attempted to get Marcia
committed in Douglas County but there was not a bed available.
Martin testified he and Mary were supportive of Alma serving as the original guardian and
that they assisted Alma in her guardianship role including encouraging counseling and they wanted
that counseling to include Marcia. According to Martin, it was around that time that Kyoko became
very agitated with Mary and him. Following Alma’s incarceration, Martin testified that, at first,
they allowed Kyoko’s nomadic lifestyle and that Kyoko moved in with Melissa, but they later
discovered Melissa may have been misusing Kyoko’s Social Security income and that Kyoko was
becoming increasingly mentally aggressive, including making increasing references to Martin and
Mary being white as opposed to African-American. At this time, Martin and Mary decided they
should take over as Kyoko’s guardians. Martin testified that, when they obtained physical custody
of Kyoko, Kyoko became “racist” and verbally aggressive toward them, including cursing at them.
Kyoko told Martin and Mary that she hated them and now appeared to be a different child. By this
time, there was a tension between Melissa and the Guardians and Martin believed Melissa
presented safety concerns for Kyoko as she was surrounded by persons with criminal histories.
However, the Guardians tried to combat this tension by encouraging Kyoko to stay with Alma.
Martin testified that he would like to restore his relationship with Marcia, but believes it
will be difficult and he is not sure she desires to work on their relationship. He expressed concerns
regarding restoring Alma as guardian including that Alma provides less structure for Kyoko in
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relation to school work and her extracurricular activities than Mary and he provide. He testified
that although some of Kyoko’s grades have fallen over time with missed assignments, she obtains
passing grades at school.
Martin testified that they received $630 per month in Social Security benefits for Kyoko’s
care which they spend on Kyoko’s clothes, care, and cosmetics. He also testified that Kyoko is
heavily involved in extracurricular activities and is scheduled to go on a 10-day school trip to
Ecuador that summer. Martin testified that, in his opinion, it would be difficult for Kyoko to
maintain her busy lifestyle if she was returned to Marcia’s care.
Martin acknowledged that, although they served as guardians, they actually placed Kyoko
in the home of a foster family on the advice of counselors. Martin explained that, because of the
high amount of tension between Kyoko and the Guradians, counselors advised placing Kyoko in
“some interim place where she could learn to de-racialize, where she could let the anger simmer
down that she had against us.” He testified they found Kyoko’s foster family through Safe Families
and that the foster family are good people who spend their own money on Kyoko and are close to
her. He testified that “it grieves me that he had to find someone” because Kyoko had progressed
to the point that she loathed them. That said, he testified their relationship now is good, that Kyoko
has come to trust them, and she understands they were trying to help her.
Martin then testified Kyoko eventually moved from the foster home after Kyoko’s GAL
filed a motion stating Kyoko was stressed about her living arrangement and needed to be returned
to Marcia. Following that filing, Martin testified that Marcia and Alma picked up Kyoko from the
foster home to live with the family of her best friend where she resided for six weeks while the
Guardians arranged to move to Gretna. At or about that time, Martin testified that he and Mary
found, and read, Kyoko’s diary which documented certain drug and sexual behaviors which
heightened their concerns about Kyoko. Kyoko’s diary was offered and received into evidence.
Martin acknowledged that he discussed the matters with Kyoko and she now understands that she
made a mistake and she chooses not to associate with people who use drugs. Martin testified that
he believes Kyoko is more mature in her thinking and he believes her when she speaks with him.
He testified that Kyoko now lives in Gretna, enjoys living there, is doing well, and her current
lifestyle gives Kyoko her best chance to do well in life.
On cross-examination, many of Marcia’s questions to Martin were stricken for making
statements instead of asking questions, but one specific question posed, and Martin’s response,
was as follows:
Q. Like, I guess I just want to know what, I mean, proof that you guys really have
that -- right now that I can’t take care of Kyoko? Or if, I mean, you think I’m so terrible,
that Alma can’t take care of Kyoko, or that we can’t all work together? I mean, I just -- it’s
like you bring up -- why do you bring up stuff that is so old? What proof do you have right
now? Like --
THE COURT: Go ahead, sir.
A. My understanding is, that’s the point of the trial.
Following Martin’s testimony, the Guardians rested.
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(b) Marcia’s Witnesses
(i) Alma F. Testimony
Alma testified that when Guardians were appointed as Kyoko’s guardians, the change
caused stress for Kyoko because it eventually resulted in her moving to Gretna which caused
difficulties in arranging visitation. Alma also testified that she had to teach Marcia social skills
such as how to care for a baby and how to be self-sufficient; however, since Marcia was released
from prison, Marcia has been a wonderful mother to her 1-year-old child making sure the child
was properly fed, clothed, cared for, and providing her with appropriate medical care. Alma
testified Marcia now lives in a nice home with a separate, clean, and decorated room for Kyoko,
that Marcia has a strong bond with Kyoko, and Kyoko has indicated a great desire to return home
to live with Marcia. She has observed Marcia now striving to obtain her goals in her life including
pursuing her photography business and she has observed Marcia obtaining help and support in her
life included regularly attending appointments with her psychiatrist and therapist. Alma testified
that she had no concerns with Kyoko returning to live with Marcia or Marcia’s ability to support
Kyoko financially because Alma stated she would always be there to support and assist Marcia.
She testified that she participated in weekend visitation with Kyoko since it was ordered by the
court and attested that Marcia shared in that visitation.
On cross-examination, Alma testified that, in addition to helping Marcia, Alma has
obtained guardianship of two other children whose mother has passed away. She testified that
Marcia’s photography business did not involve sex-related services. She testified she had no
friction with Melissa in relation to the return of Kyoko when she was released from prison.
(ii) Jessica Workman
Workman testified that she first met Marcia 10 years ago in massage school and,
throughout the years, they became close friends. She testified to the closeness of Marcia,
Lawrence, and Kyoko prior to Lawrence’s death and the time that Marcia and Kyoko have spent
together. Workman testified that Marcia’s current residence is well-equipped for Marcia’s two
children and that food and utilities are adequately provided. She also testified to the bond that has
developed between Kyoko and her 1-year-old half sister. She also noted that, since Marcia’s
release from prison, Marcia has attempted to better herself and her lifestyle by working toward her
photography business, regularly attending therapy sessions, and making plans for additional
education. Finally, Workman testified that Marcia is a “good mom” to her children and had
adequately provided for them.
On cross-examination, Workman testified that, in addition to her attempts to start her own
photography business, Marcia has searched for additional employment but finding work was
difficult because of her prior felony conviction. Workman acknowledged that since Marcia was
released from prison nearly 2 years ago, she has only lived in Omaha for the last 3 months so her
physical observations were limited to that period of time.
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(iii) Marcia S.
Marcia offered into evidence, and the court received, certain photographs that were taken
in connection with her photography business. She then reiterated to the court the difference in her
life between the time she relinquished guardianship of Kyoko to Alma and went to prison, and the
life she has pursued since her release. Those included her regular visits to therapy, her return to
school, her pursuit of her photography business, and her search for other forms of employment.
She testified that she learned about resources that are available to her and learned to access various
forms of support. Marcia further testified that the home she now lives in is a clean and stable
environment and she denied any present abuse of alcohol or drugs.
(c) Kyoko’s In Camera Testimony
During her in camera interview, Kyoko described how close she was with her father prior
to his death. She described that she currently was a sophomore at Gretna High School and preferred
to remain there. She testified that, at the beginning of the current school year, her grades were poor
because she moved so often, did not care, and was not coping correctly. However, Kyoko testified
that she pulled her grades up during the year and ultimately received a combination of A’s, B’s,
and C’s. She testified she likes her teachers, was involved in track and basketball, and was
interested in learning multiple languages including sign language.
Kyoko testified that she loved her maternal grandparents, the Guardians, but did not fully
trust them. She also testified that she loved Marcia. Kyoko stated that perhaps the greatest strain
in her life was the inability of the people she loves to get along. She talked about her strong faith
in God and said that when she encountered a problem, she would pray first, but she would probably
not be comfortable with approaching the Guardians. Conversely, Kyoko testified she felt
comfortable sharing anything with Marcia. She testified that she is aware that Marcia has had
medical problems, but has never seen anything that appeared problematic other than Marcia
seeming anxious at times and seeing Marcia suffering at times from pain caused by her
fibromyalgia. She stated that Marcia is always trying to please everyone and not hurt anyone
which, at times, places a strain on Marcia.
Kyoko testified that she almost never sees Marcia while at the Guardians’ home because
of their relationship impasse. Consequently, since she began living with the Guardians, she sees
Marcia only on weekends when she spends time at Alma’s home. Further, Kyoko is troubled by
the fact that her visitation time with Marcia is limited due to the court-ordered supervision
requirements in connection with that contact.
Kyoko again testified about her enjoyment of school and sports and desire to succeed at
both. She had already begun thinking about career plans and testified to a desire to create stability
for her own children so they do not have to deal the circumstances that she has faced. Kyoko
testified about being a biracial child and wanted to make sure she remained close with both sides
of her family. She believed her family dynamic was special and wanted to make sure it was
preserved. When asked about her preference regarding her guardianship, Kyoko struggled noting
she did not want to upset anyone and loved everyone involved, but she had grave concerns with
her busy schedule and not seeing Marcia if the guardianship continued and she strongly believed
she needed Marcia in her life.
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Kyoko testified that Marcia’s home provided her with good living accommodations. She
believed that she Marcia needed each other and that, in contrast, the Guardians did not need her.
She again testified to loving the Guardians and understanding that they cared for her, but strongly
believed she needed Marcia to be more present in her life and wished there was no division among
them.
(d) Further Evidence
Neither party called the GAL as a witness, however, after both parties rested, the court
asked whether either party objected to the court’s receipt of the GAL’s report. The Guardians’
counsel objected on hearsay grounds and the GAL’s report being beyond the scope of the trial.
After the court expressed concern that Dr. Haley relied upon the GAL’s report in issuing his
opinions and that the court had received Dr. Haley’s report including opinions into evidence, the
Guardians’ counsel then responded “Your honor, if there’s a choice between Dr. Haley’s report
and opinions, and the guardian ad litem report going in, I’ll withdraw the objection to the guardian
ad litem’s report.” Following the withdrawal of that objection, the court received the GAL’s report
into evidence.
3. COUNTY COURT ORDER
Following the trial, the court issued a voluminous nineteen page order in which the court
terminated the guardianship of Kyoko and denied the Guardians’ requests to continue their
appointment as coguardians. In that order, as relevant to this appeal, the court noted taking “sua
sponte” notice of the pleadings in the file along with Neb. Rev. Stat. § 27-701 (Reissue 2016) and
Neb. Rev. Stat. § 30-2616 (Reissue 2016); Neb. Ct. R. of Disc. § 6-332; and 25 U.S.C. § 1903. In
doing so, the court stated, “Pursuant to Neb. Rev. Stat. § 27-201, the Court may judicially notice
indisputable facts immediately ascertainable by reference to source of ‘reasonably indisputable’
accuracy.” The court also made numerous “findings of fact and conclusions of law” in support of
its order. The Guardians now appeal from that order.
III. ASSIGNMENTS OF ERROR
The Guardians assign nineteen separate assignments of error. Revised and restated, those
errors can be summarized and grouped into the following six categories: That the court erred (1)
in its handling of the in camera interview of Kyoko; (2) in failing to include questions submitted
to the court by the parties (to be considered by the court in conducting the in camera interview) as
part of the transcript or supplemental transcripts; (3) in, sua sponte, taking judicial notice of the
pleadings in the case without notice to the parties and providing the parties the right to respond;
(4) in creating a record which contains reference to certain “indiscernible” responses throughout
Kyoko’s in camera interview; (5) in committing evidentiary errors in connection with the offer of
certain exhibits and evidence; and (6) in numerous findings in the portion of the court’s order
entitled “findings of fact and conclusions of law” which resulted in error in its order terminating
the guardianship.
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IV. STANDARD OF REVIEW
Appeals of matters arising under the Nebraska Probate Code are reviewed for error on the
record. In re Guardianship of K.R., 26 Neb. Ct. App. 713, 923 N.W.2d 435 (2018). 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.
When reviewing questions of law, an appellate court resolves the questions independently
of the conclusion reached by the lower court. In re Guardianship of Aimee S., 26 Neb. Ct. App. 380,
920 N.W.2d 18 (2018).
V. ANALYSIS
This is a proceeding by a biological parent, Marcia, to terminate a guardianship with
respect to her then 15-year-old child Kyoko. The considerations of the trial court were concisely
outlined by the Nebraska Supreme Court in In re Guardianship of Robert D., 269 Neb. 820, 829,
696 N.W.2d 461, 469-70 (2005), wherein the court held:
Under the parental preference principle, a parent’s natural right to the custody of his or her
child trumps the interests of strangers to the parent-child relationship and the preferences
of the child. In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004). Absent
circumstances which terminate a parent’s constitutionally protected right to care for his or
her child, due regard for the right requires that a biological or adoptive parent be
presumptively regarded as the proper guardian for his or her child. Id.
Consequently, 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 the child are served by reuniting the minor child with
his or her parent. Id. In other words, an individual who opposes the termination of a
guardianship bears the burden of proving by clear and convincing evidence that the
biological or adoptive parent either is unfit or has forfeited his or her right to custody. Id.
Absent such proof, the constitutional dimensions of the relationship between parent and
child require termination of the guardianship and reunification with the parent. Id.
“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.” In re Guardianship of
Elizabeth H., 17 Neb. Ct. App. 752, 762, 771 N.W.2d 185, 193-94 (2009).
1. IN CAMERA INTERVIEW
The Guardians first argue that the court erred in its handling of the in camera interview of
Kyoko. Specifically, the Guardians argue that the errors relate to not allowing parties to be present
in the interview; that there was no information about the witness’ testimony provided to the parties;
that there was no information about what questions were or were not asked including, but not
limited to, those questions submitted by the parties; that there was no chance to confront or
cross-examine Kyoko; and that these errors constituted a violation of the Guardians’ constitutional
and statutory rights.
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The requirements of due process in the circumstance where the State seeks to have a child
testify in chambers at a juvenile adjudication hearing were outlined by the Nebraska Supreme
Court in In re Interest of Brian B. et al., 268 Neb. 870, 876, 689 N.W.2d 184, 190 (2004), wherein
the court held:
The State must first give notice of its intent to the parents of the juvenile or their counsel
prior to the adjudication hearing. [In re Interest of Danielle D. et al., 257 Neb. 198, 595
N.W.2d 544 (1999)]. When such notice is given, the juvenile court must conduct a hearing
separate from the adjudication hearing to determine whether reasons exist for excluding
the parents from the child’s testimony at the adjudication hearing. Id. “A child should be
allowed to testify in chambers at a separate hearing when there are legitimate concerns
about the child’s testifying in the presence of his or her parents,” and it is “only logical that
the child not be faced with the risk of being harmed when that is what the court is trying to
prevent.” Id. at 206, 595 N.W.2d at 550. When the requisite showing has been made by the
State, the juvenile court may exercise its discretion in determining whether to permit the
child to testify in chambers. Id.
Although this is not an adjudication and the State is not a party, the Nebraska Supreme
Court has recognized that the fundamental liberty interest of parents in the care, custody, and
management of their child is afforded due process protection. In re Interest of L.V., 240 Neb. 404,
482 N.W.2d 250 (1992). Here, it is the Guardians, not the parents, who are asserting due process
rights in this guardianship proceeding in relation to the in camera interview. But we do not need
to expand upon the full scope of due process rights here in light of the guardians’ failure to preserve
this alleged error.
Here, in its order, the trial court referenced that the matter of the in camera interview was
raised by Marcia’s October 2017 motion titled “Motion for Encamera [sic] Interview of Minor
Child.” Further, prior to the commencement of the trial, the court held a hearing in which the court
notified the parties of its intent to conduct an in camera interview of Kyoko and outlined the
procedure to be followed which procedure is now the basis of the Guardians’ assignment of error.
Most notably, at no time during the pretrial hearing, nor at trial, did the Guardians, or any other
party, object to the in camera interview or procedure the court intended, or did, utilize in
conducting the in camera interview. The court subsequently conducted the interview in the exact
manner which had been outlined during the pretrial hearing and properly made a record of the in
camera interview.
As this court noted in Kumke v. Kumke, 11 Neb. Ct. App. 304, 310, 648 N.W.2d 797, 801
(2002), “Generally, where the parties have given consent or acquiescence to private interviews
with the children and the court conducts an in camera hearing, such consent waives any objections
which might be raised on appeal.” Here, Marcia filed a motion requesting the in camera interview,
the court held a pretrial hearing where it granted the request, and the court laid out the procedure
that the court intended to follow in conducting the in camera interview. Neither party objected to
that procedure. Under these circumstances, we treat the Guardians’ conduct as an acquiescence to
the in camera interview and the procedures to be employed, and, as Nebraska appellate courts have
repeatedly stated, “a litigant’s failure to make a timely objection waives the right to assert
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prejudicial error on appeal.” In re Estate of Clinger, 292 Neb. 237, 262, 872 N.W.2d 37, 55-56
(2015). Accord In re Estate of Odenreider, 286 Neb. 480, 837 N.W.2d 756 (2013); In re
Guardianship of Aimee S., 26 Neb. Ct. App. 380, 920 N.W.2d 18 (2018).
2. ERROR IN HANDLING REQUEST FOR
SUPPLEMENTAL TRANSCRIPTS
The Guardians next argue that the court erred in its handling of their requests for
supplemental transcripts. Specifically, the Guardians argue that the court erred by not including
the questions submitted to the court by the parties (to be considered by the court in conducting the
in camera interview) as part of the transcript or supplemental transcripts. The Guardians argue that
they specifically included a request for the questions in a supplemental request for a transcript and
that the court erred by failing to include those questions.
Neb. Ct. R. App. P. § 2-104 provides, in pertinent part:
(A) How Ordered; Contents.
(1) Upon filing the notice of appeal, the appellant shall file with the court from
which the appeal is taken a praecipe directing the clerk to prepare a transcript, which shall
contain:
(a) The pleadings upon which the case was tried, as designated by the appellant;
(b) The judgment, decree, or final order sought to be reversed, vacated, or modified,
and the lower court’s memorandum opinion, if any; and
(c) A copy of the supersedeas bond, if any, given in the district court, or, if none
has been given, a recital of the fact that a bond for costs was given and approved in the
district court, or a deposit made as required by Neb. Rev. Stat. § 25-1914.
(d) In cases where an application to proceed in forma pauperis has been filed, a
copy of the order of the district court granting or denying such.
(2) If the appellant is of the opinion that other parts of the record are necessary for
the proper presentation of the errors assigned in this court, he or she shall further direct the
clerk to include in the transcript such additional parts of the record as he or she shall specify
in the praecipe, including the instructions given by the trial court, if the appellant intends
to assign error in the giving of any instruction, and any tendered instruction refused, if the
appellant intends to assign error to such refusal. The appellant shall limit his or her request
for such additional material to only those portions of the record which are material to the
assignments of error.
(3) In filing a praecipe for transcript with the clerk of the district court, the party
making such praecipe shall identify by name each specific document which the party
desires to have included in the transcript pursuant to this rule. The clerk of the district court
may not include, without specific written request, a copy of any document not required
under this rule. The district court clerk shall, upon request, certify that the record does not
contain a described document. The notice of appeal, praecipes for preparation of transcripts
and bills of exceptions, and poverty affidavits shall not be included in the transcript, since
they are previously certified and sent to this court.
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Accordingly, if not a pleading, judgment, decree, order, bond, or order governing an
application to proceed in forma pauperis, the Guardians were entitled to designate such other part
of the record “[i]f the appellant is of the opinion that other parts of the record are necessary for the
proper presentation of the errors assigned in this court.” Neb. Ct. R. App. P. § 2-104(A)(2). Here,
the questions requested were neither offered as exhibits during trial nor filed with the clerk of the
court. For that reason, our court eventually granted a motion to compel filed by the Guardians
governing the “questions” and allowed a followup hearing with the county court to determine
whether the questions could or should be produced and whether they were, in fact, part of the
record. Because the county court subsequently issued orders in connection with that hearing
following the final order appealed here, that subsequent order is not part of this appeal and cannot
be dealt with in a future appeal.
That said, in relation to this appeal, our record indicates that neither party marked, offered,
or otherwise made these questions exhibits at trial. The record indicates the court invited these
questions from the parties to consider in connection with its in camera interview of Kyoko. The
court made clear on the record that it would review and consider asking the questions but that
ultimately the court would decide what questions to pose to Kyoko. The court then made a
complete record of the in camera interview so the parties knew exactly what questions were asked.
The Guardians do not point to any specific question they suggest should have been asked but was
not asked or otherwise explain how not having access to questions suggested by Marcia or the
GAL and not asked resulted in prejudice to them. More importantly, as we stated above, the parties
did not object to the court’s description and subsequent conduction of the in camera interview
including, but not limited to, the court’s statement that only it would decide which questions to ask
Kyoko.
Under these circumstances, we hold that the omission from the record of the questions
posed by the parties for the court’s consideration did not result in any prejudice to the Guardians
as it relates to their specific assignment of error. Because the court was not obligated to obtain
possible questions from the parties in the first instance, and because the court properly recorded
the interview so that the questions that were asked of the child could be ascertained, the clerk of
court’s alleged failure to include potential questions for the court’s consideration in the record was
of no legal consequence.
3. JUDICIAL NOTICE
The Guardians next object to the court’s reference in its order to, sua sponte, taking judicial
notice of certain contents of the file and statutes listed therein. Specifically, the Guardians argue
that, pursuant to Neb. Rev. Stat. § 27-201 (Reissue 2016), they were minimally entitled to notice
of the court’s intent to take judicial notice and should have been provided an opportunity to
respond.
But the same issue of which the Guardians complain was resolved in J.B. Contracting
Servs. v. Universal Surety Co., 261 Neb. 586, 624 N.W.2d 13 (2001). There, the Nebraska Supreme
Court stated:
Judicial notice of adjudicative facts is governed by Neb. Evid. R. 201, Neb. Rev.
Stat. § 27-201 (Reissue 1995). This rule authorizes a judge or court to “take judicial notice,
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whether requested or not,” and provides that “[j]udicial notice may be taken at any stage
of the proceeding.” § 27-201(3) and (6). In addition, the rule provides that “[a] party is
entitled upon timely request to an opportunity to be heard as to the propriety of taking
judicial notice and the tenor of the matter noticed. In the absence of prior notification, the
request may be made after judicial notice has been taken.” § 27-201(5). The record does
not reflect that [the Guardians] utilized this rule to challenge the propriety of taking judicial
notice in the district court prior to perfecting this appeal. Assuming without deciding that
the issue is nevertheless preserved for appeal, the record does not permit us to address it.
261 Neb. at 593, 624 N.W.2d at 19.
Similarly, the record before us demonstrates that the county court first took judicial notice
of certain contents of the file and statutes in connection with its order. However, the record does
not reflect that, prior to perfecting this appeal, the Guardians utilized this rule to challenge the
propriety of taking judicial notice of the court’s ruling which it could have done by motion. An
appellate court will not consider an issue on appeal that was not passed upon by the trial court. In
re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999). This assignment of error
fails.
4. REFERENCES TO INDISCERNIBLE RESPONSES
DURING IN CAMERA INTERVIEW
The Guardians next assign error to those portions of the bill of exceptions capturing the
court’s in camera interview of Kyoko where certain responses are referenced as “indiscernible.”
The Guardians argue that they should either be allowed to review the tape of the in camera
interview or both parties should be provided affidavits governing the interpretation of missing
fragments of the in camera interview, but that there needs to be a remedy for the inadequacy of the
current record.
Neb. Ct. R. App. P. § 2-105(B)(5) provides the method by which a bill of exceptions may
be amended. It provides:
The parties in the case may amend the bill of exceptions by written agreement to be
attached to the bill of exceptions at any time prior to the time the case is submitted to the
Supreme Court. Proposed amendments not agreed to by all the parties to the case shall be
heard and decided by the district court after such notice as the court shall direct. The order
of the district court thereon shall be attached to the bill of exceptions prior to the time the
case is submitted to the Supreme Court. Hearings with respect to proposed amendments to
a bill of exceptions may be held at chambers anywhere in the state. If the judge shall have
ceased to hold office, or shall be prevented by disability from holding the hearing, or shall
be absent from the state, such proposed amendments shall be heard by the successor judge,
or by another district judge in the district, or by a district judge in an adjoining judicial
district.
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Pursuant to Neb. Ct. R. App. P. § 2-105(B)(9):
These rules shall apply to all appeals and error proceedings where specific provision is not
made by law for a bill of exceptions. Any court reporting personnel approved by the court,
board, or tribunal from which the appeal or error proceedings is taken may attend and
record the trial or proceedings and prepare a bill of exceptions, certified to be true and
complete by such court reporting personnel, and file the same with the chief clerical officer
of such court, board, or tribunal. Proposed amendments not agreed to shall be heard and
determined by such court, board, or tribunal as provided in § 2-105(B)(5). The completed
bill of exceptions shall be filed in the reviewing court within the time provided by law and,
if no time be fixed, before the case is submitted to the reviewing court.
The Guardians made no attempt to amend the bill of exceptions in accordance with
§ 2-105(B)(5). They are, therefore, precluded from raising the issue regarding the insufficiency of
the bill of exceptions on appeal. This assignment fails.
5. EVIDENTIARY ERRORS
(a) GAL’s Report
The Guardians next object to the court’s admission of the GAL’s report into evidence. That
admission was the subject of a conversation between the court and the Guardians’ counsel as to
the report’s admissibility. During that conversation, the court expressed concerns that Dr. Haley
relied on the GAL’s report in connection with his opinions and, in response, the Guardians’ counsel
stated “Your honor, if there’s a choice between Dr. Haley’s report and opinions, and the guardian
ad litem report going in, I’ll withdraw the objection to the guardian ad litem’s report.”
The court never conditioned the admission of Dr. Haley’s opinion on the admission of the
GAL’s report as counsel suggested. Instead, the court simply accepted counsel’s retraction of his
objection to the GAL’s report. As we previously stated, “a litigant’s failure to make a timely
objection waives the right to assert prejudicial error on appeal.” In re Estate of Clinger, 292 Neb.
237, 262, 872 N.W.2d 37, 55-56 (2015). Accordingly, the Guardians’ assignment of error in
connection with the GAL’s report fails.
(b) Evidence of Marcia’s 2012 Conviction
The Guardians assign as error that the court erred in not allowing them to adduce evidence
governing Marcia’s 2012 misdemeanor conviction for soliciting prostitution. The court refused to
allow evidence of the conviction citing Neb. Rev. Stat. § 27-609 (Reissue 2016).
Section 27-609 provides, in pertinent part:
(1) For the purpose of attacking the credibility of a witness, evidence that he has
been convicted of a crime shall be admitted if elicited from him or established by public
record during cross-examination, but only if the crime (a) was punishable by death or
imprisonment in excess of one year under the law under which he was convicted or (b)
involved dishonesty or false statement regardless of the punishment.
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The court indicated that because the alleged incident that the Guardians sought to admit
into evidence did not involve a crime contemplated by § 27-609(1)(a) or (b), the incident was not
admissible. The Guardians argue that the alleged misdemeanor conviction for solicitation of
prostitution was relevant to show Marcia’s unfitness to parent Kyoko which was the issue in the
proceeding and was other allowable under Neb. Rev. Stat. § 27-410 (Reissue 2016).
Section 27-410 provides:
Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an
offer to plead guilty or nolo contendere to the crime charged or any other crime, or of
statements made in connection with any of the foregoing pleas or offers, is not admissible
in any civil or criminal action, case, or proceeding against the person who made the plea
or offer. This rule shall not apply to the introduction of voluntary and reliable statements
made in court on the record in connection with any of the foregoing pleas or offers when
offered for impeachment purposes or in a subsequent prosecution of the declarant for
perjury or false statement.
We cannot discern how § 27-410 relates to the Guardians’ argument that Marcia’s prior
2012 misdemeanor conviction should have been allowed into evidence. That said, we agree with
the Guardians that they were not offering evidence of the prior conviction to attack Marcia’s
credibility. They were offering the prior conviction as evidence of Marcia’s fitness to parent Kyoko
which we find to be relevant to the court’s ultimate decision. Although the county court may be
correct that evidence of Marcia’s past conviction could not be admitted for purposes of credibility
under § 27-609, it should have been admitted based on its relevance to the issue before the court.
We hold the county court improperly excluded evidence of the 2012 misdemeanor conviction
under § 27-609.
But this determination does not end our inquiry. To constitute reversible error in a civil
case the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant
complaining about such evidence admitted or excluded. In re Estate of Brown-Elliot, 27 Neb. Ct. App.
196, 930 N.W.2d 51 (2019). We hold that the exclusion of evidence of the 2012 misdemeanor
conviction did not prejudice the Guardians in relation to the outcome of this case. As we explain
more fully in the final portion of this opinion, there was significant evidence in the record that,
from approximately the time frame of Lawrence’s death in 2013 until Marcia’s incarceration in
2014, Marcia was making poor decisions demonstrating a lack of fitness in relation to the ability
to parent Kyoko. This was admittedly apparent even to Marcia who agreed to a guardianship for
Kyoko on a temporary basis while Marcia attempted to change her life. After serving 2 years in
prison and taking advantage of classes offered to her, Marcia clearly embarked upon a mission to
change her lifestyle so as to regain custody of Kyoko. In short, this trial was not so much about
who Marcia was in 2012, but more about who Marcia was in 2018. We further note that Marcia
testified regarding her 2012 conviction and any further evidence regarding that conviction would
have been cumulative. We hold that the court’s exclusion of evidence of a 2012 conviction for
misdemeanor solicitation of prostitution did not prejudice the Guardians in relation to the outcome
of this case.
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(c) Other Evidentiary Errors
As their final assignment of evidentiary error, the Guardians cite the court’s refusal to allow
the Guardians to testify about former statements Kyoko’s deceased father allegedly made to the
Guardians about Marcia prior to his death in 2013 and the Guardians’ attempts to report certain
aspects of Marcia’s prior mental health diagnoses. The Guardians allege that this evidence was
improperly excluded due to improper objections by the GAL who was not entitled to object and
the court’s own sua sponte objection which he was not entitled to make. As to both, the Guardians’
counsel failed to submit an offer of proof as to what the testimony on these subjects would have
been. Without an offer of proof, the record is insufficient to review this issue. See State v. Loving,
27 Neb. Ct. App. 73, 95, 926 N.W.2d 686, 700-01 (2019) (“we conclude that our record is insufficient
to review this issue, because during the trial, defense counsel failed to make an offer of proof as
to what [the defendant] would have testified to had the court not sustained the State’s objection”).
6. INSUFFICIENCY OF EVIDENCE
The Guardians’ final assignment of error is that there was insufficient evidence in the
record to support a finding that the guardianship should not be terminated. The Guardians argue
that (a) there was insufficient evidence in the record to support over 20 different findings of fact
and conclusions of law in the court’s order; (b) the court erred in stating that Kyoko needed to give
her consent to the guardianship under § 30-2616; and (c) had the court considered the factors set
forth in Neb. Rev. Stat. § 43-292 (Reissue 2016), the court would have concluded that termination
of the guardianship was not warranted. We will consider these arguments independently.
(a) Alleged Error Regarding Trial Court’s
Findings of Fact and Conclusions of Law
The Guardians contend that the trial court committed error in numerous findings in the
portion of the court’s order entitled “Findings of Fact and Conclusions of Law” which resulted in
error in its order terminating the guardianship. It would, of course, be problematic if a specific
finding of fact was not traceable to the record. That said, as it relates to this assignment, the
ultimate issue is whether the record supports the county court’s conclusion that the Guardians
failed to establish by clear and convincing evidence that Marcia was presently unfit to parent
Kyoko. We find that the county court did not err in finding that the Guardians failed to establish
clear and convincing evidence of Marcia’s current unfitness.
In arguing that termination of the guardianship was error, the Guardians focus on certain
times in Marcia’s life where she admittedly had struggled. Following Lawrence’s death in 2013,
Marcia appeared to have made numerous bad choices in connection with her personal life and in
raising Kyoko. In fact, Marcia voluntarily chose a temporary guardianship for Kyoko in 2014
realizing that she was not in a position to parent Kyoko at that time. Marcia was incarcerated that
year for fourth-offense DUI and, during her incarceration, she took classes to improve herself.
Graciously, the Guardians stepped up to care for Kyoko during a difficult time in Marcia’s life for
which we commend them. We also recognize that the Guardians have sought to provide Kyoko
with every advantage even going to the extent of moving to Gretna so that Kyoko would be able
to attend school within that school district. We have no doubt of the Guardians’ love and concern
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for Kyoko and their belief that they can provide the best lifestyle for Kyoko. However, the question
before this court is not whether the Guardians are fit guardians. Marcia, as Kyoko’s mother, enjoys
a rebuttable presumption that Kyoko’s best interests are served by their reunion. See In re
Guardianship of Robert D., 269 Neb. 820, 696 N.W.2d 461 (2005). Accordingly, the issue before
us is whether the trial court erred in determining that the Guardians had failed to meet their burden
of proving by clear and convincing evidence that Marcia remained unfit or had forfeited her right
to custody of Kyoko. See, id.; In re Guardianship of D.J., 268 Neb. 239, 247, 682 N.W.2d 238,
245 (2004) (courts have “‘never deprived a parent of the custody of a child merely because on
financial or other grounds a stranger might better provide. . . . [T]he right shall be in the parent,
unless the parent be affirmatively unfit. The statute does not make the judges the guardians of all
the children in the state, with power to take them from their parents, so long as the latter discharge
their duties to the best of their ability, and give them to strangers because such strangers may be
better able to provide what is already well provided’”).
As the Nebraska Supreme Court recently reiterated in In In re Guardianship of K.R., 304
Neb. 1, 13, 932 N.W.2d 737, 745-46 (2019):
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).
Here, the record established that, after her release from incarceration in 2016, Marcia
obtained a home in a clean and stable environment, returned to school, started a photography
business, and has searched for additional employment. She also regularly attends therapy, takes
her prescription medications, visits Kyoko, and takes care of her 1-year-old daughter. She further
denies abuse of her current prescription medications and testified to only taking that which is
prescribed by her team of physicians effectively refuting Dr. Haley’s unsubstantiated claims to the
contrary. In fact, the only significant evidence offered by the Guardians’ governing Marcia’s
current lack of fitness came from the opinions of Dr. Haley. Dr. Haley, who was appointed by
court order to conduct a mental health examination of Marcia, somehow ended up conducting a
parental fitness examination. In doing so, Dr. Haley ultimately concluded that, although Marcia
who was currently fit to raise her 1-year-old daughter, he did not believe her fit to attend to
15-year-old Kyoko due to continuing substance abuse issues with current prescription medication
and certain mental health issues that would make it difficult for Marcia to carry out her parenting
responsibilities.
First, Marcia adamantly denied substance abuse issues with prescription medications
stating that she took medication for her conditions as prescribed by her team of physicians who
had coordinated her care. The Guardians offered no rebuttal testimony or evidence to the contrary.
Second, Dr. Haley’s opinions made no reference to Marcia’s ability to parent when seen and
treated by competent professionals who Marcia testified she systematically follows and adheres to
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again with no rebuttal evidence to the contrary. The Guardians did not call any of Marcia’s current
medical team that have coordinated her care and instead chose to rely on the testimony of Dr.
Haley and his performance of a parental fitness examination. For these reasons and others, the
county court found Dr. Haley’s opinion to not be sufficiently reliable. We cannot say the court
erred in so finding. As we have consistently stated, “the law does not require perfection of a parent;
instead, courts should look for the parent’s continued improvement in parenting skills and a
beneficial relationship between parent and child.” In re Interest of Becka P. et al., 27 Neb. Ct. App.
489, 509, ___ N.W.2d ___, ___ (2019). Accordingly, this assigned error fails.
(b) Kyoko’s Consent to Guardianship
The Guardians also contend that the court erred in stating that Kyoko needed to give her
consent to the guardianship under § 30-2616. When read in conjunction with the court’s full
statement on this issue, we find no error in the court’s application of § 30-2616(c).
Section 30-2616(c) provides: “If, at any time in the proceeding, the court determines that
the interests of the ward are, or may be, inadequately represented, it may appoint an attorney to
represent the minor, giving consideration to the preference of the minor if the minor is fourteen or
more years of age.”
In its order, the county court stated that “[t]he Court interprets [§ 30-2616] to mean that at
a minimum some deference should be given to Kyoko’s wishes, especially as she grows older
because in less than three (3) years, she will be able to choose where she lives.” Thus, the county
court found that some deference should be given to Kyoko’s wishes, which is permitted by statute.
Accordingly, the Guardians’ claim to the contrary fails.
(c) Factors Under § 43-292
Finally, the Guardians claim that had the court considered the factors set forth in § 43-292,
the court would have concluded that termination of the guardianship was not warranted.
Section 43-292 specifies eleven independent statutory grounds upon which termination of
parental rights may be sought. Specifically, in order for a court to terminate all parental rights
between a parent and his or her child, the court must find by clear and convincing evidence that
one or more of the eleven different statutory conditions exist and that termination is in the best
interests of the child. The Nebraska Supreme court has additionally provided that although “[t]he
term ‘unfitness’ is not expressly used in § 43-292, . . . the concept is generally encompassed by
the fault and neglect subsections of that statute, and . . . through a determination of the children’s
best interests.” In re Interest of Nicole M., 287 Neb. 685, 704, 844 N.W.2d 65, 80 (2014).
That said, § 43-292 is specifically applicable to termination of parental rights matters and
not guardianship matters. As we previously indicated in this opinion, for purposes of guardianship,
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.” In re Guardianship of
Elizabeth H., 17 Neb. Ct. App. 752, 762, 771 N.W.2d 185, 193-94 (2009). As we stated in In re
Guardianship of Elizabeth H., “The ‘fitness’ standard applied in guardianship appointment under
§ 30-2608 is analogous to a juvenile court finding that it would be contrary to a juvenile’s welfare
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to return home.” 17 Neb. Ct. App. at 762, 771 N.W.2d at 194. Thus, taken together, those subsections
of § 43-292 generally encompassing the fault and neglect analysis provide guidance in analyzing
a guardianship appointment proceeding, but are not necessarily dispositive. Here, the county court
applied the correct standard of assessing “parental unfitness” and, as we stated above, did not err
in concluding the Guardians did not establish by clear and convincing evidence that Marcia is
currently unfit to parent Kyoko.
VI. CONCLUSION
Having considered and found that the assignments of error raised by the Guardians fail, the
county court’s order terminating the guardianship of Kyoko is affirmed.
AFFIRMED.
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