In re Guardianship of K.R. , 304 Neb. 1 ( 2019 )


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    IN RE GUARDIANSHIP OF K.R.
    Cite as 
    304 Neb. 1
    In re Guardianship of K.R., a minor child.
    Heather R., appellant, v. M ark R. and
    Cynthia R., Guardians, appellees.
    ___ N.W.2d ___
    Filed September 6, 2019.   No. S-17-846.
    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 judg-
    ment 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 prefer-
    ence 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,
    R iedmann, and Welch, Judges, on appeal thereto from the
    County Court for Douglas County, M arcela A. K eim, Judge.
    Judgment of Court of Appeals affirmed.
    Julie A. Frank for appellant.
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    IN RE GUARDIANSHIP OF K.R.
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    304 Neb. 1
    Patrick A. Campagna, of Campagna Law, P.C., 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 guard-
    ianship 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, find-
    ing 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 compe-
    tent evidence. Accordingly, we affirm, although based on dif-
    ferent reasoning than that of the Court of Appeals.
    BACKGROUND
    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 coguard-
    ians 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
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    agreement was adopted by the court in an October 29, 2014,
    order. The order required Heather to complete certain require-
    ments: 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 dis-
    closed 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 sen-
    tenced 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
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    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 establish-
    ment 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 let-
    ter, 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 resid-
    ing 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
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    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 Heather did not
    love her and did not care about her, because Heather believed
    Seth instead of her.
    Cattau testified that she was not in favor of visitation
    between Heather and K.R. at the time of trial. She testified
    to certain steps she would like to see taken before she would
    recommend visitation. Cattau also testified that she did not
    support termination of the guardianship.
    On cross-examination, Cattau admitted that she had met
    Heather only one time, had never observed Heather and K.R.
    together, and had not conducted any therapy with or evaluation
    of Heather. She also testified that K.R. told her that Heather
    told K.R. not to talk about what happened with Seth, because it
    would “tear the family apart.”
    On redirect, Cattau testified that Heather’s statements to
    K.R. not to talk about the abuse concerned her. She testified
    that this conduct would increase K.R.’s fears and contribute
    to a “sense of guilt.” Cattau expressed concern that if Heather
    was successful in terminating the guardianship, it could lead
    to “re-victimization” of K.R. Cattau identified a lack of paren-
    tal support as something that would contribute to continued
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    victimization of K.R. Cattau testified that this could lead to
    internalization of blame, depression, self-harming behaviors,
    self-harming comments, and other consequences.
    Mark and Cynthia also called Heather to testify. She testified
    that she had been married since November 2014 and had lived
    with her husband since June 30, 2014. She also testified that
    she was employed at the time of trial.
    Heather testified that she knew in May 2014 about K.R.’s
    being physically abused by Seth. She testified that when she
    learned about the abuse, she asked Seth’s family to move out.
    She testified that the family instead had Seth move to live with
    an aunt, but that Seth had no additional contact with K.R. after
    he moved out.
    Heather testified that she learned about the sexual abuse in
    June 2015, when a police officer called to ask her questions.
    Heather denied that K.R. ever told her about the sexual abuse
    or that she told K.R. not to talk about it. Heather testified that
    she thinks K.R.’s claim that Heather told her not to talk about
    the abuse was influenced by Mark and Cynthia.
    Heather testified that while she did not agree with her
    conviction, she did acknowledge that “something horrible
    happened to [K.R.], and essentially it was [Heather’s] fault”
    but that it was nothing she did intentionally. She also testified
    that she would “have to live with [failing to protect K.R.]
    for the rest of [her] life” and that she would “never forgive
    [her]self.”
    Heather testified that in 2014, she underwent a chemi-
    cal dependency evaluation and a psychological and parental
    fitness evaluation and took a parenting class. In 2015, she
    started seeing a therapist and continued until December 2016.
    At that point, her therapist released her from therapy, and her
    probation officer said that he would not require additional
    therapy. In 2017, she took another psychological and parental
    fitness evaluation, another chemical dependency evaluation,
    and another parenting course. Heather testified that she had
    complied with or was working toward complying with every
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    provision of her probation. Heather testified that there was a
    no-contact order between K.R. and her and that she had not
    attempted to contact K.R. since it was entered. Heather denied
    ever telling K.R. that she should not talk about the abuse.
    At the close of Mark and Cynthia’s case, Heather moved for
    a directed verdict, which the court denied. Heather then pre-
    sented her evidence, beginning with her own testimony.
    Heather reiterated that she had taken the steps required by
    the initial guardianship order. She testified that after a psycho-
    logical parenting evaluation and chemical dependency evalu-
    ation, it was recommended that she see a therapist to address
    low self-esteem issues. She testified that she had completed
    therapy and was discharged successfully. She testified that
    she also completed a parenting class, as required by the order
    establishing the guardianship, and had additionally obtained a
    second psychological and parental fitness evaluation and taken
    another parenting class focusing on parenting children who
    have gone through trauma.
    Heather testified that she recalled occasions during which
    K.R. was talking about Seth and that she told K.R. that she
    did not need to worry about him anymore, because he was no
    longer capable of hurting her. Heather testified that K.R. may
    have misunderstood these statements as telling her not to talk
    about the abuse.
    Heather was also asked whether she would be willing to
    wait to have contact with K.R. until Cattau believed K.R.
    was ready. Heather testified that she would not, because she
    believed that Cattau obtained information only from Mark and
    Cynthia and was biased against her.
    Heather also called Dr. Stephanie Peterson, a clinical psy-
    chologist, to testify on her behalf. She provided testimony
    regarding psychological evaluations and parenting assessments
    she performed on Heather. Peterson testified that based on her
    evaluations and assessments, Heather “had all the qualities of
    an adequate parent” and that she had matured in positive ways
    between her first assessment of Heather in November 2014 and
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    a subsequent assessment in March 2017. Peterson also noted
    that K.R.’s younger sister lives with Heather and that Peterson
    was not aware of any issues or problems with Heather’s parent-
    ing of that child. She testified that if a parent is competently
    parenting one child, it indicates that the parent should be able
    to competently parent another child.
    County Court Order on Motion
    to Terminate Guardianship.
    Following trial, the county court entered an order denying
    Heather’s motion to terminate the guardianship. In the order,
    the county court stated that it would apply the parental pref-
    erence principle. It explained that under the principle, Mark
    and Cynthia were required to establish by clear and convinc-
    ing evidence that Heather is unfit or has forfeited her right
    to custody and that absent such a showing, reunification with
    Heather was required by law.
    The trial court then praised many of Heather’s actions after
    the establishment of the guardianship as “commendable.” But
    it also noted that Heather had failed to take responsibility
    for what happened to K.R. It also stated that Heather “seeks
    reunification because that is what she wants; not because it
    is in the best interest of [K.R.].” The county court denied
    Heather’s motions.
    Heather appealed the county court’s decision.
    Court of Appeals.
    On appeal, Heather argued that the county court erred by
    declining to terminate the guardianship or order any visitation.
    She also argued that the county court improperly delegated to
    Cattau the authority to make decisions regarding visitation and
    termination of the guardianship.
    The Court of Appeals affirmed. In its opinion, the Court
    of Appeals stated that “there are two competing principles in
    the area of child custody jurisprudence: the parental prefer-
    ence principle and the best interests of the child principle.” In
    re Guardianship of K.R., 
    26 Neb. Ct. App. 713
    , 722, 923 N.W.2d
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    435, 443 (2018). With respect to the parental preference prin-
    ciple, the Court of Appeals noted that this court has previously
    said that to deny a parent the custody of his or her minor child,
    “it must be affirmatively shown that such parent is unfit to per-
    form parental duties or that he or she has forfeited that right.”
    
    Id. at 723,
    923 N.W.2d at 443. But the Court of Appeals also
    pointed to the following language in our opinion in Windham v.
    Griffin, 
    295 Neb. 279
    , 
    887 N.W.2d 710
    (2016):
    “We continue to adhere to the view that the parental
    preference doctrine, by definition, is a preference, and it
    will be applied to a child custody determination unless it
    is shown that the lawful parent is unfit or has forfeited
    his or her superior right or the preference is negated
    by a demonstration that the best interests of the child
    lie elsewhere.”
    In re Guardianship of 
    K.R., 26 Neb. Ct. App. at 724
    , 923 N.W.2d
    at 443.
    The Court of Appeals relied on this language to hold that
    there are rare cases in which the parental preference principle
    can be rebutted by a showing that the child’s best interests
    will be served by custody being awarded to a nonparent rather
    than a parent. Based on the evidence in the record, particularly
    Cattau’s testimony about how K.R. was still dealing with the
    abuse, the Court of Appeals found that this was such a case.
    The Court of Appeals also found that the county court did not
    err in not ordering visitation and did not improperly delegate
    to Cattau decisions regarding termination of the guardianship
    and visitation.
    We granted Heather’s petition for further review.
    ASSIGNMENTS OF ERROR
    Heather’s primary contention on further review is that the
    Court of Appeals erred by affirming the county court’s denial
    of Heather’s motions to terminate the guardianship and for
    visitation on the grounds that the relief Heather sought would
    be contrary to K.R.’s best interests.
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    She also claims that the Court of Appeals erred when it
    found that the county court did not improperly delegate to
    Cattau decisions regarding termination of the guardianship and
    visitation. We find no error in the Court of Appeals’ disposi-
    tion of this issue, and we see no need to comment on it fur-
    ther. Accordingly, our analysis below is limited to whether the
    Court of Appeals erred by affirming the county court’s order
    denying Heather’s motions to terminate the guardianship and
    for visitation.
    STANDARD OF REVIEW
    [1,2] 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. See In re Guardianship of D.J., 
    268 Neb. 239
    , 
    682 N.W.2d 238
    (2004). 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. An appel-
    late 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.
    McManus Enters. v. Nebraska Liquor Control Comm., 
    303 Neb. 56
    , 
    926 N.W.2d 660
    (2019).
    ANALYSIS
    [3] All the parties to this case and every court to have con-
    sidered it agree that because Heather is K.R.’s parent, this
    case is governed by what this court has dubbed the “parental
    preference principle.” See, e.g., In re Guardianship of 
    D.J., supra
    . That 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. See 
    id. Heather’s objection
    to the Court of Appeals’ decision is not
    that it applied the parental preference principle. Instead, she
    contends that the Court of Appeals erred by finding that the
    parental preference principle was rebutted by a demonstration
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    that K.R’s best interests would be served by keeping the guard-
    ianship in place and not allowing visitation. Heather argues
    that allowing the parental preference principle to be rebutted
    by a best interests showing dilutes the doctrine and violates
    her right to due process under the 14th Amendment to the U.S.
    Constitution. She argues that under this court’s precedent as
    well as cases of the U.S. Supreme Court interpreting the 14th
    Amendment, the parental preference principle can be overcome
    only if the nonparent who seeks custody proves by clear and
    convincing evidence that the parent is either unfit or has for-
    feited his or her right to custody.
    Heather correctly points out that on many occasions, this
    court has said that under the parental preference principle,
    absent proof that a parent is unfit or has forfeited the right to
    custody, a parent may not be deprived of the custody of a minor
    child. See, e.g., In re Interest of Lakota Z. & Jacob H., 
    282 Neb. 584
    , 
    804 N.W.2d 174
    (2011); Farnsworth v. Farnsworth,
    
    276 Neb. 653
    , 
    756 N.W.2d 522
    (2008); In re Interest of Xavier
    H., 
    274 Neb. 331
    , 
    740 N.W.2d 13
    (2007); In re Guardianship
    of 
    D.J., supra
    ; Gomez v. Savage, 
    254 Neb. 836
    , 
    580 N.W.2d 523
    (1998). She asks that to the extent our opinion in Windham
    v. Griffin, 
    295 Neb. 279
    , 
    887 N.W.2d 710
    (2016), held that the
    presumption can be overcome by anything other than a show-
    ing of unfitness or forfeiture, we overrule it.
    Before reaching these arguments, however, we note that
    while the Court of Appeals clearly found the parental prefer-
    ence principle was negated by a best interests demonstration,
    it is not so clear that the county court did the same. In fact,
    before proceeding to analyze the issues raised by Heather’s
    motions, the county court articulated the parental preference
    principle precisely, as Heather contends the law requires.
    It stated:
    The parental preference principle applies in guardian-
    ship proceedings that affect child custody and creates a
    rebuttable presumption that the best interests of the child
    are served by reuniting the minor child with his or her
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    biological parent. The current guardians must establish by
    clear and convincing evidence that the biological parent
    is unfit and/or has forfeited her right to custody. Absent
    such a showing, the law requires reunification.
    The county court went on to discuss evidence introduced at
    trial that would bear on Heather’s fitness as a parent before
    ultimately denying Heather’s motions.
    In our view, the county court decision is best read as mak-
    ing an implicit determination that Heather was not fit to have
    custody of or visitation with K.R. The county court said that
    absent a showing of unfitness or forfeiture, “the law requires
    reunification,” and after discussing facts pertaining to Heather’s
    fitness, it denied reunification. The county court’s order does
    also contain some language referring to K.R.’s “best interests,”
    but we do not think the order can logically be read as turning
    on a best interests determination when the order states that a
    finding of unfitness or forfeiture was the only basis upon which
    Heather could be denied reunification with K.R.
    Because we understand the county court to have denied
    Heather’s motions on the ground that she was unfit to parent
    K.R., we begin our analysis by reviewing that determination.
    Did County Court Err by
    Finding Heather Unfit?
    [4] We have defined parental unfitness as “a personal defi-
    ciency 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.” 
    Farnsworth, 276 Neb. at 657
    , 756 N.W.2d at 526. Mark and Cynthia primarily argue
    that Heather’s unfitness was demonstrated by the conduct that
    led to her child abuse conviction. We begin our consideration
    of whether there was competent evidence to support a finding
    of unfitness with that evidence.
    Many witnesses testified to the facts that led to Heather’s
    conviction. This testimony indicated that Heather left K.R. and
    her younger sister alone for long periods of time with minor
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    boys who were members of a family temporarily staying at
    Heather’s home. During that time, K.R. was abused by the
    minor boys. There was evidence that this abuse was of both
    a physical and sexual nature. K.R. reported to Cattau that the
    physical abuse included biting, hitting, choking, and drowning,
    as well as locking K.R. in a bathroom and forcing her to eat
    dog feces. Heather does not dispute that K.R. was subjected to
    physical and sexual abuse and that her child abuse conviction
    was based on the theory that Heather failed to protect her from
    that abuse.
    This evidence unquestionably reflects poorly on Heather’s
    parenting, but we must also consider when the conduct
    occurred. There is some dispute between the parties as to when
    Heather failed to protect K.R. from abuse. Heather contends
    the abuse predated the establishment of the guardianship in
    June 2014. Mark and Cynthia, pointing only to the charging
    documents in the criminal case, contend that the abuse con-
    tinued through May 2015. In either case, however, Heather’s
    failure to protect K.R. from abuse concluded over 2 years prior
    to the trial on Heather’s motions to terminate the guardianship
    and for visitation.
    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).
    We do not view Heather’s failure to protect K.R. from
    abuse as entirely irrelevant to the fitness analysis. At the same
    time, however, we question whether this evidence from at
    least 2 years in the past would, standing on its own, support a
    determination that Heather was unfit at the time of trial. That,
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    however, is a question we need not confront, because there was
    other evidence in the record pertaining to Heather’s fitness. We
    will discuss that evidence now.
    While the basic facts underlying Heather’s child abuse
    conviction are not disputed, the evidence introduced at trial
    relating to Heather’s fitness as a parent conflicted on many
    other points. Cattau testified that K.R. disclosed to her that
    when K.R. told Heather about the physical and sexual abuse,
    Heather not only did not believe K.R., she blamed and pun-
    ished K.R. for engaging in sexual conduct and told K.R. not
    to talk about it. At trial, Heather denied that K.R. informed
    her of the sexual abuse or that she blamed K.R. for it. Heather
    also testified that K.R.’s statements that Heather told her not
    to talk about the abuse were the result of Mark and Cynthia’s
    influence on K.R.
    Testimony from Cattau also indicated that K.R. was left with
    Seth after telling Heather about the abuse. Heather denied this
    as well, contending that Seth left her home after she demanded
    that his family leave.
    There was also conflict in the testimony as to whether
    Heather could effectively meet K.R.’s needs. Peterson testified
    that based on her evaluations of Heather, there was no reason
    to believe she would be an abusive or unfit parent. Cattau,
    however, opposed termination of the guardianship or visitation
    and outlined many concerns regarding contact between Heather
    and K.R. In particular, Cattau expressed concerns about the
    harm K.R. suffered as a result of Heather’s telling K.R. not to
    talk about the abuse. Cattau testified to K.R.’s need for “paren-
    tal support” and the negative consequences that were likely to
    follow in the absence of such support. While Heather testified
    to her belief that Cattau was biased and that the only infor-
    mation she received was through Mark and Cynthia, Cattau
    testified to steps she took to ensure that K.R. independently
    disclosed information to her.
    As the foregoing discussion illustrates, two very different
    accounts of Heather’s fitness as a parent were presented at
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    trial. If Heather’s side of the story were believed, one would
    find that after being informed that K.R. was being physi-
    cally abused, Heather supported K.R., promptly took steps
    to remove the abuser, recognized some of her faults as a par-
    ent, took steps to address those deficiencies, and then at trial
    accepted responsibility for her initial failure to protect K.R.
    Under this view, Heather resisted Cattau’s opinion that contact
    with Heather would be detrimental to K.R. only because Cattau
    is a biased therapist who accepts everything Mark and Cynthia
    tell her.
    Other evidence, however, portrayed a different story. There
    was evidence that K.R. told Heather she was being physically
    and sexually abused and that Heather responded by not only
    blaming K.R. for engaging in sexual activities but also telling
    her not to talk about the subject and allowing the principal
    perpetrator of the abuse to remain in her home. Heather denied
    all of this at trial and even went so far as to assert that K.R.
    said she told Heather about the abuse only because Mark and
    Cynthia influenced her to do so.
    While we are presented with conflicting evidence, our stan-
    dard of review in this matter does not allow us to reweigh this
    evidence or make our own factual findings. Rather, our task
    is limited to determining whether there is competent evidence
    to support a finding of unfitness by clear and convincing evi-
    dence. As we will explain, we find there is competent evidence
    to support such a finding.
    As we have described above, evidence was introduced at
    trial showing that K.R. informed Heather of the physical and
    sexual abuse and that Heather disregarded K.R.’s complaints,
    blamed her for the abuse, told her not to talk about it, and
    allowed the perpetrator of the abuse to remain in her home.
    Heather failed to accept responsibility for these actions and,
    instead, denied them at trial and suggested that a portion of
    K.R.’s account was not based in fact. We also note that at
    trial, while Heather purported to accept responsibility for at
    least allowing some abuse of K.R., she described her particular
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    failure as “trying to help some people out” and “allow[ing]
    them into [her] home” and “because of that, [her] daughter was
    hurt.” This description seems to minimize Heather’s culpabil-
    ity for actions that ultimately resulted in a felony child abuse
    conviction for knowingly and intentionally placing K.R. in an
    abusive situation.
    Many courts have recognized that the failure to accept
    responsibility for past misconduct can indicate present unfit-
    ness. See, e.g., K.D. v. People, 
    139 P.3d 695
    (Colo. 2006); In
    re C.N., 
    196 Ill. 2d 181
    , 
    752 N.E.2d 1030
    , 
    256 Ill. Dec. 788
    (2001); In re Emma S., 
    177 A.3d 632
    (Me. 2018); In re Kelly
    S., 
    715 A.2d 1283
    (R.I. 1998). We believe that is the case here.
    In fact, we find that Heather’s failure to accept responsibility
    is particularly relevant to the fitness determination, given testi-
    mony regarding K.R.’s emotional needs.
    Cattau testified that K.R. was emotionally harmed as a result
    of Heather’s telling her not to talk about the abuse and was
    dealing with a sense of guilt for “believing that she is responsi-
    ble for tearing her family apart.” Cattau testified that a lack of
    parental support would contribute to “continued victimization”
    and outlined various negative consequences thereof. Cattau’s
    testimony suggests that given the abuse she suffered and her
    emotional state, K.R. is in particular need of support and vali-
    dation from those who care for her.
    Courts in other jurisdictions have recognized that when a
    child develops special needs as a result of past misconduct
    by a parent, a parent’s inability to meet those needs bears on
    parental fitness. For example, in Matter of Welfare of M.A.,
    
    408 N.W.2d 227
    (Minn. App. 1987), a Minnesota appellate
    court affirmed a finding of unfitness based in part on the par-
    ent’s inability to meet the emotional needs of a child arising
    as a result of past physical abuse committed by the parent.
    Similarly, in Matter of K.M.M., 
    186 Wash. 2d 466
    , 
    379 P.3d 75
    (2016), the Washington Supreme Court affirmed a trial court’s
    finding that a father was unfit based on the determination that
    the father, who had not had substantial contact with his child
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    after the child was removed from the home due to neglect, was
    unable to parent the child because of a lack of attachment. The
    court emphasized that “in order to determine whether a parent
    is a fit parent to a particular child, the court must determine
    that the parent is able to meet that child’s basic needs.” 
    Id. at 494,
    379 P.3d 90 
    (emphasis in original). See, also, In re Scott
    S., 
    775 A.2d 1144
    , 1151 n.14 (Me. 2001) (“[t]his does not
    mean that the facts relating to the children’s needs should not
    be considered in determining the parents’ capacity to care for
    them. To the contrary, the parents’ actions and abilities must be
    understood and judged in the context of the health, ages, and
    needs of the children”).
    We find these cases instructive because there is competent
    evidence here that K.R. has needs arising from Heather’s
    past misconduct and that Heather, at the time of the trial, was
    unable to meet those needs. As noted above, Cattau’s testimony
    suggests that K.R.’s needs include support and validation from
    parental figures. At trial, however, Heather continued to deny
    K.R.’s account and to blame Mark and Cynthia for influencing
    K.R. to fabricate details. Put in terms of our unfitness standard,
    there was competent evidence that Heather has a deficiency
    or incapacity that will probably prevent her from performing
    reasonable obligations to K.R., which will probably result in
    detriment to K.R.’s well-being. See Farnsworth v. Farnsworth,
    
    276 Neb. 653
    , 
    756 N.W.2d 522
    (2008).
    Heather’s inability to meet K.R.’s unique needs also distin-
    guishes this case from In re Interest of Xavier H., 
    274 Neb. 331
    , 
    740 N.W.2d 13
    (2007). In that case, the State sought
    termination of a mother’s parental rights as to one of her
    three children. We held that the evidence was insufficient to
    establish that termination was in the child’s best interests. We
    pointed out that the State had admitted that the mother was
    an adequate parent to her other two children, but had failed
    to show any reason why the mother would not be an adequate
    parent to the third child as well. In this case, while there is
    evidence that Heather has custody of K.R.’s younger sister and
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    no evidence that she is unfit to parent that child, the evidence
    described above supports a finding that Heather is not fit to
    parent K.R.
    For these reasons, we find that there was competent evi-
    dence supporting the county court’s finding that Heather was
    unfit at the time of trial. Because guardianships are tem-
    porary and depend upon the circumstances existing at the
    time, our findings would not foreclose Heather from seeking
    visitation or termination of the guardianship in the future.
    See In re Guardianship of Zyla, 
    251 Neb. 163
    , 
    555 N.W.2d 768
    (1996).
    Role of Best Interests in Parental
    Preference Principle Analysis.
    Because we find that there was competent evidence to
    support the county court’s finding that Heather was unfit to
    parent K.R., there is no reason for us to consider Heather’s
    argument that the Court of Appeals erred by finding that the
    parental preference principle was rebutted by a showing that
    it was in K.R.’s best interests for the guardianship to remain
    in place. For the same reason, there is no need to consider
    Heather’s request that we overrule Windham v. Griffin, 
    295 Neb. 279
    , 
    887 N.W.2d 710
    (2016), to the extent it holds that
    the parental preference principle can be negated by a showing
    that it is in the child’s best interests for a nonparent to have
    custody rather than a parent. We do, however, take this oppor-
    tunity to make some observations regarding the interaction of
    the parental preference principle and the best interests of the
    child standard.
    With a citation to Windham, the Court of Appeals found
    that this is “one of those rare cases where the best interests
    of the child defeats the parental preference principle.” In re
    Guardianship of K.R., 
    26 Neb. Ct. App. 713
    , 724, 
    923 N.W.2d 435
    , 444 (2018). The Court of Appeals noted various pieces
    of evidence it considered relevant to its best interests analysis,
    but it did not otherwise explain why it believed this was such
    a case. We note that the Court of Appeals followed a similar
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    approach in a case issued shortly after its opinion in this case.
    See State on behalf of Lilliana L. v. Hugo C., 
    26 Neb. Ct. App. 923
    , 
    924 N.W.2d 743
    (2019). While it is not necessary for us
    to determine whether the Court of Appeals erred in these cases,
    we believe caution is warranted in this area for reasons we will
    briefly explain.
    First, Windham cannot be read to stand for the proposi-
    tion that the parental preference principle will be rebutted in
    every case in which the nonparent might prevail in a pure best
    interests comparison. In Windham, we rejected the nonparent’s
    invitation to “examine the merits as though [the parent and
    nonparent] were standing on equal footing and the outcome
    would be determined only by reference to best 
    interests.” 295 Neb. at 290
    , 887 N.W.2d at 718. Instead, we emphasized that
    the parental preference principle could not be rebutted by a
    showing that the nonparent can “provide more amenities and
    a better life” or “‘“‘merely because on financial or other
    grounds a stranger might better provide.’”’” 
    Id. at 291,
    292,
    887 N.W.2d at 719
    .
    Second, while Windham makes clear that there will be
    cases in which a best interests showing will be insufficient
    to overcome the parental preference principle, we did not
    have the occasion in Windham to explore the circumstances
    in which a best interests showing could negate the presump-
    tion. Our opinion in Windham did cite a case from a Florida
    intermediate appellate court in which the court affirmed a
    trial court’s award of custody to an ex-stepmother rather than
    the child’s natural father based on the child’s best interests
    rather than a finding of unfitness, but we did so only in the
    course of noting that it was distinguishable from the facts
    before us. We also note that courts in other states have not
    taken a uniform approach to the question of when, if ever, a
    court may deny a parent custody of a child based on a deter-
    mination that the child’s best interests lie elsewhere. See,
    e.g., Watkins v. Nelson, 
    163 N.J. 235
    , 
    748 A.2d 558
    (2000)
    (collecting cases).
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    For reasons we have noted, this case does not present the
    opportunity to exhaustively explore the interplay of the best
    interests standard and the parental preference principle. We
    urge courts, however, to be mindful of the above considerations
    when confronted with an argument that custody of a child
    should be awarded to a nonparent rather than a parent because
    doing so would be in the best interests of the child.
    CONCLUSION
    Because we find that the county court’s determination that
    Heather was unfit to parent K.R. was supported by competent
    evidence, we affirm the decision of the Court of Appeals, albeit
    on different grounds.
    A ffirmed.