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304 Nebraska Reports

IN RE GUARDIANSHIP OF K.R.

Cite as 304 Neb. 1

In re Guardianship of K.R., a minor child. 

Heather R., appellant, v. Mark 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 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.

3. Child Custody: Parent and Child: Presumptions. The parental preference 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, 

Riedmann, and Welch, Judges, on appeal thereto from the 

County Court for Douglas County, Marcela A. Keim, Judge. 

Judgment of Court of Appeals affirmed.

Julie A. Frank for appellant.

Nebraska Supreme Court Online Library

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

09/20/2019 08:06 AM CDT
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IN RE GUARDIANSHIP OF K.R.

Cite as 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 guardianship 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, finding 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 competent evidence. Accordingly, we affirm, although based on different 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 coguardians 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 requirements: 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 disclosed 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 sentenced 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 establishment 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 letter, 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 residing 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 parental 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 chemical 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 presented 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 psychological parenting evaluation and chemical dependency evaluation, 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 psychologist, 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 parenting 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 preference principle. It explained that under the principle, Mark 

and Cynthia were required to establish by clear and convincing 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 preference principle and the best interests of the child principle.” In 

re Guardianship of K.R., 26 Neb. App. 713, 722, 923 N.W.2d 
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435, 443 (2018). With respect to the parental preference principle, 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 perform 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. 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’ disposition of this issue, and we see no need to comment on it further. 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 appellate 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 considered 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 guardianship 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 forfeited 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 showing of unfitness or forfeiture, we overrule it.

Before reaching these arguments, however, we note that 

while the Court of Appeals clearly found the parental preference 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 guardianship 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 making 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 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.” 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 continued 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 punished 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 “parental 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 information 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 physically abused, Heather supported K.R., promptly took steps 

to remove the abuser, recognized some of her faults as a parent, 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 standard 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 evidence. 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 culpability 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 unfitness. 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 testimony 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 responsible 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 validation 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 parent’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 distinguishes 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 evidence supporting the county court’s finding that Heather was 

unfit at the time of trial. Because guardianships are temporary 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 opportunity 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. 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. 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 proposition 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 presumption. 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 determination 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.

Affirmed.