SUMMARY: The termination of a guardianship was properly denied because there was clear and convincing evidence of continuing parental unfitness, including an unstable marital relationship, frequent changes in residences and schools, and ongoing fear of the mother of the father.
Andrew (DOB 1/2002) is the child of Amanda K. and Roger K. In February 2004, the child’s maternal grandparents petitioned for guardianship of Andrew. The court granted the guardianship in June 2004. On August 31, 2007, Amanda and Roger filed a petition to terminate the guardianship on the basis that the reasons for the guardianship had been alleviated. At trial, evidence was submitted that Amanda and Roger have had a rocky relationship for years, having filed for divorce on more than one occasion and Amanda having filed for protection orders against Roger. Roger has a non-violent criminal history. The parents have moved residences several times and Amanda’s daughters (who still lived in the home) had attended 6 schools in 6 years. After trial, the court denied termination of guardianship and noted the evidence of Roger’s criminal history, the protection orders, the chaotic and dysfunctional living, and domestic violence.
The Nebraska Court of Appeals upheld the denial of termination of the guardianship, holding that consideration of criminal history and protection orders was proper and evidence supported parental unfitness. It noted that the parents’ counsel questioned Amanda and Roger about Roger’s criminal history and can therefore not claim error about its admission. See Kirchner v. Wilson, 262 Neb. 607 (2001). It also held consideration of the protection orders proper as Amanda’s fears about Roger were relevant to parental unfitness.
The principle of parental preference requires parties supporting guardianship to overcome the rebuttable presumption by clear and convincing evidence that the child’s best interests are served by returning the child to the parent. The Court noted that the evidence established an unstable marital relationship, frequent changes of schools and residences, and Amanda’s fear of Roger and her filing of protection orders and found that “the parents continue to have personal deficiencies which will probably prevent them from performing reasonable parental obligations and which will probably result in detriment to the well-being of the child.” The Court also upheld the order that visitation be supervised because given the facts limits on visitation were warranted.