SUMMARY: Awarding guardianship of a child was improper because there was no showing of unfitness under the parental preference doctrine.
Tyler, DOB 2001, is the child of Heather. Heather and Shane have a child born in April 2007 and Shane has been the only father figure Tyler has had. Heather moved alone to Colorado in February 2010 and by June 2010 the children were living with Shane. At that time, the children were removed by DHHS for living in a dangerous home and in a location where marijuana was being grown, and were placed with Shane’s parents where they resided until placed back with Shane in May 2011. Heather was living with her mother in Colorado at a location that didn’t allow children and was working on a medical assistant certification, which she eventually received. She initially lived with a boyfriend and didn’t get home study approval for placement but eventually was able to obtain her own housing and maintain stable employment. In the meantime, it was recommended by the CASA, GAL and caseworker that the children remain with Shane because it was stable and the only place they had lived. A petition for guardianship was filed and, after trial, the court found it was in the child’s best interest and awarded guardianship to Shane. Heather appealed.
The Nebraska Court of Appeals reversed the order and remanded the case with directions to dismiss the guardianship. It first noted that it did not matter as to the adjudication whether allegations were made as to Heather – they were not – because adjudication was based on the situation of the child. Next, as to the issue of guardianship, the Court of Appeals affirmed that the parental preference doctrine applied and that there is a rebuttable presumption with the burden on individual seeking appointment of a guardianship to prove that the parent is unfit. In this case, the Court of Appeals held that no evidence submitted at trial established Heather as unfit to parent Tyler and that Heather’s present ability to parent would not have justified removal of the children in the first place.