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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

IN RE GUARDIANSHIP OF ISSAABELA R.

Cite as 27 Neb. App. 353

In re Guardianship of Issaabela R., 

a minor child. 

Cami S., Guardian, appellant, v. Nebraska

Department of Health and Human

Services, appellee.

___ N.W.2d ___

Filed June 18, 2019. No. A-18-906.

1. Guardians and Conservators: Appeal and Error. Appeals of matters arising under the Nebraska Probate Code are reviewed for error on 

the record.

2. Judgments: Appeal and Error. 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.

3. Constitutional Law: Parent and Child: Public Policy. Where a parent’s constitutionally protected relationship with a child is not at issue, 

both public policy and the Nebraska statutes require the case to be 

determined by reference to the paramount concern in child custody disputes—the best interests of the child.

4. Pleadings: Proof. Pleadings alone are not proof but mere allegations of 

what the parties expect the evidence to show.

5. Pleadings: Trial: Evidence. Pleadings and their attachments which 

are not properly admitted into evidence cannot be considered by the 

trial court.

6. Evidence: Records: Appeal and Error. A bill of exceptions is the only 

vehicle for bringing evidence before an appellate court; evidence which 

is not made a part of the bill of exceptions may not be considered.

Appeal from the County Court for Saunders County: 

C. Jo Petersen, Judge. Reversed and remanded for further 

proceedings.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/18/2019 09:06 AM CDT
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

IN RE GUARDIANSHIP OF ISSAABELA R.

Cite as 27 Neb. App. 353

Jennifer D. Joakim for appellant.

No appearance for appellee.

Riedmann, Arterburn, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Cami S. was appointed permanent guardian for the minor 

child, Issaabela R., through a probate action. The county court 

for Saunders County ultimately terminated the guardianship, 

and Cami appeals that decision. We conclude that the evidence 

was insufficient to support terminating the guardianship and 

therefore reverse the county court’s order and remand the 

cause for further proceedings.

BACKGROUND

Cami is the maternal grandmother of Issaabela, who was 

born in 2015. The county court for Lancaster County appointed 

Cami temporary guardian of Issaabela in March 2017 and 

permanent guardian in August. Issaabela was removed from 

Cami’s care in December and placed in the custody of the 

Nebraska Department of Health and Human Services (DHHS) 

due to allegations that Issaabela was exposed to abuse while 

living with Cami. A juvenile court case with respect to 

Issaabela and Cami was initiated in the county court for 

Saunders County, sitting as a juvenile court, and the guardianship matter was transferred to Saunders County upon a motion 

filed by the guardian ad litem appointed for Issaabela.

On August 15, 2018, DHHS filed a motion to terminate the probate guardianship. The motion alleged that Cami 

had entered a “no contest” plea to the allegations raised in 

the juvenile court petition, resulting in the adjudication of 

Issaabela as to Cami under Neb. Rev. Stat. § 43-247(3)(a) 

(Reissue 2016). The motion indicated that Issaabela remained 

in the custody of DHHS and was placed in foster care, that 

DHHS was seeking to terminate the probate guardianship in 
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

IN RE GUARDIANSHIP OF ISSAABELA R.

Cite as 27 Neb. App. 353

order to pursue permanency through the juvenile court case, 

and that Cami opposed terminating the guardianship.

A hearing before the county court was held on August 20, 

2018. At the hearing, the court addressed issues related to a 

separate juvenile case involving Issaabela’s sister, a motion 

for bonding assessment filed by Cami in Issaabela’s juvenile 

case, and DHHS’ motion to terminate the guardianship in the 

probate case. The court also accepted documents whereby 

Issaabela’s biological mother and father each relinquished 

their parental rights to her. The county court, seeing “no basis” 

to continue the probate guardianship, granted the motion to 

terminate the guardianship. A written order to that effect was 

filed that day. Cami timely appeals.

ASSIGNMENTS OF ERROR

Cami assigns, restated and renumbered, that the county 

court erred in terminating the guardianship, because (1) the 

evidence was insufficient to support terminating the guardianship, (2) there was not sufficient notice of the hearing to all 

interested parties, and (3) the termination of the guardianship 

was not in the best interests of the child.

STANDARD OF REVIEW

[1,2] Appeals of matters arising under the Nebraska Probate 

Code are reviewed for error on the record. In re Guardianship 

of K.R., 26 Neb. 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.

ANALYSIS

Cami assigns that the evidence was insufficient to support 

terminating the guardianship. We agree.

Any person interested in the welfare of a ward may petition for removal of a guardian on the ground that removal 

would be in the best interests of the ward, and after notice and 
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

IN RE GUARDIANSHIP OF ISSAABELA R.

Cite as 27 Neb. App. 353

hearing on a petition for removal, the court may terminate the 

guardianship. Neb. Rev. Stat. § 30-2616 (Reissue 2016).

Cases regarding termination of guardianships generally 

involve a biological or adoptive parent’s attempting to terminate a guardianship in order to regain custody of his or 

her child. Under those circumstances, the Nebraska Supreme 

Court has held that the parental preference principle serves to 

establish a rebuttable presumption that the best interests of the 

child are served by reuniting the child with his or her parent. 

In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 

(2004). Therefore, 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.

[3] But where, as here, the rights of a biological or adoptive parent are not at issue, Cami concedes and we agree 

that she does not possess the same constitutional interests 

as a parent, and therefore, the parental preference doctrine 

does not apply. Where a parent’s constitutionally protected 

relationship with a child is not at issue, both public policy 

and the Nebraska statutes require the case to be determined 

by reference to the paramount concern in child custody disputes—the best interests of the child. In re Estate of Jeffrey 

B., 268 Neb. 761, 688 N.W.2d 135 (2004). Thus, the standard 

for removal of a guardian of a minor pursuant to § 30-2616 

is the best interests of the ward. See In re Estate of Jeffrey 

B., supra. Accordingly, in the instant case, the county court 

was authorized to remove Cami as guardian and terminate the 

guardianship over Issaabela upon proof that doing so would 

be in Issaabela’s best interests.

In guardianship termination proceedings involving a biological or adoptive parent, the parental preference principle 

establishes a rebuttable presumption in favor of terminating 
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

IN RE GUARDIANSHIP OF ISSAABELA R.

Cite as 27 Neb. App. 353

the guardianship; thus, the party opposing the termination of a 

guardianship bears the burden of proving by clear and convincing evidence that the biological or adoptive parent is unfit or 

has forfeited his or her right to custody. See In re Guardianship 

of D.J., supra. Because the case at hand does not involve 

a biological or adoptive parent, the rebuttable presumption 

which shifts the burden of proof to the party opposing termination of the guardianship does not exist. Therefore, the burden 

of proof in this case was on DHHS, as the moving party, to 

establish that terminating the guardianship was in Issaabela’s 

best interests.

At the August 20, 2018, hearing, the court addressed several 

separate issues relevant to the three separate cases. Notably, in 

addressing the separate juvenile cases involving Issaabela and 

her sister, the county court was sitting as a juvenile court, and 

when addressing the guardianship in the probate action, the 

court was sitting as a county court.

In addressing the motion to terminate the guardianship, 

Cami’s counsel explained that Cami would like the guardianship to continue. The court stated that it saw no basis to 

continue the guardianship, given that Issaabela’s parents had 

relinquished their parental rights and Issaabela remained in the 

custody of DHHS. When given the opportunity to be heard on 

the motion, counsel for DHHS replied, “Your Honor, essentially what I would say is what you’ve already said.” No evidence was offered or received as to the motion, and the court 

was not asked to take judicial notice of the existence of the 

juvenile case or the contents of its file.

[4-6] We recognize that in its motion to terminate the 

guardianship, DHHS made various allegations, including that 

terminating the guardianship would allow Issaabela to obtain 

permanency through the juvenile court case and that this was 

in her best interests. However, pleadings alone are not proof 

but mere allegations of what the parties expect the evidence to 

show. In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 

(2017). Pleadings and their attachments which are not properly 
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

IN RE GUARDIANSHIP OF ISSAABELA R.

Cite as 27 Neb. App. 353

admitted into evidence cannot be considered by the trial court. 

Id. A bill of exceptions is the only vehicle for bringing evidence before an appellate court; evidence which is not made a 

part of the bill of exceptions may not be considered. Id. As a 

result, we cannot consider allegations contained in a pleading 

as substantive evidence of Issaabela’s best interests.

We also observe that Cami testified in support of her motion 

for a bonding assessment in the juvenile case, and evidence 

was received regarding the separate juvenile court case for 

Issaabela’s sister. We do not consider that evidence, however, 

because it was not introduced into evidence in connection with 

the motion to terminate the guardianship. See Bailey v. First 

Nat. Bank of Chadron, 16 Neb. App. 153, 741 N.W.2d 184 

(2007) (appellate court did not consider exhibits introduced 

in support of separate motions addressed at same hearing). As 

a result, there was no evidence presented with respect to the 

motion to terminate the guardianship.

Without any evidence, the county court was unable to make 

a determination as to Issaabela’s best interests in order to 

decide whether to grant DHHS’ motion. In evaluating the 

court’s decision, we review for error on the record, and 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. See In re Guardianship of K.R., 26 

Neb. App. 713, 923 N.W.2d 435 (2018). If the court’s decision 

is based upon information from the juvenile case, there is no 

indication that it took judicial notice of that information, and 

that information is not contained in our record. See In re Estate 

of Radford, supra.

The record before us is similar to that addressed in In re 

Estate of Radford, supra. There, a hearing was held but no 

sworn testimony was given and no exhibits were offered or 

received into evidence. Although the court was asked to take 

judicial notice of its file, it failed to identify what documents 

it was noticing and did not mark and introduce into evidence 
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Nebraska Court of Appeals Advance Sheets

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IN RE GUARDIANSHIP OF ISSAABELA R.

Cite as 27 Neb. App. 353

each document that it considered. On appeal, the Supreme 

Court concluded that as a result, the only information available for review was the pleadings, the attachments to the 

pleadings, and the court’s order. But because these were not 

properly admitted into evidence, they could not be considered 

by the trial court. Consequently, the Supreme Court reversed 

and remanded because the trial court received no evidence 

which would have proved the allegations in the motion before 

it. See id.

Because there was no evidence before the court as to 

Issaabela’s best interests vis-a-vis the guardianship, we conclude that the county court’s decision is not supported by 

competent evidence. And because the deficiency in the record 

is not the fault of the appellant, the proposition that an appellate court will affirm a lower court’s decision when the appellant fails to present a record to support her errors is inapplicable. See In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 

261 (2017).

As the moving party, DHHS had the burden to provide sufficient evidence to prove that terminating the guardianship 

was in Issaabela’s best interests. See id. Its failure to adduce 

any evidence was not the fault of Cami. To affirm the county 

court’s decision because of the lack of evidence would reward 

DHHS for failing to meet its burden. See id. We therefore 

reverse the county court’s order terminating the guardianship 

and remand the cause for further proceedings.

CONCLUSION

We conclude that the county court erred in failing to create a record containing evidence to support its decision that 

terminating the guardianship was in Issaabela’s best interests. 

Because we find that the county court had insufficient evidence 

to make its determination, we reverse the order terminating the 

guardianship and remand the cause for further proceedings.

 Reversed and remanded for

further proceedings.