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February 01, 2012

Guardians Must Prove Parental Unfitness in Guardianship Termination Proceedings

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In a proceeding to end a guardianship of children with paternal grandparents and reunify children with their biological father, the grandparents had the burden to show by clear and convincing evidence that the father was unfit. Although the guardianship was ordered under the juvenile court’s jurisdiction, due process still required a showing of unfitness before terminating the parent’s rights.

In re Lakota Z., 804 N.W.2d 174 (Neb. 2011).

Two young children were removed from their home after police responded to a domestic dispute between the parents and found drugs in the home but no food or diapers for the children. The children were placed in the temporary custody of child protective services, which moved them to their paternal grandparents’ home.

The children’s father was charged with child neglect, drug possession and assault. He admitted at trial to assaulting the children’s mother several times. The father’s initial case plan was reunification, with goals of controlling his anger, living drug free, and providing for the children’s needs.

A second case plan, set after the father was removed from a counseling program for noncompliance, provided for guardianship, not termination of parental rights.

The children’s guardian ad litem petitioned to appoint the paternal grandparents as guardians. Both parents, the child protective services agency, and the county attorney waived any notice or participation in further proceedings at that time and the agency closed its case file.

The father entered drug court, successfully completing the program a year later. He ended his relationship with the mother, remarried, obtained a stable job and a home for the children, and had "emotionally reunited" with the children. He then filed a motion in county court, under the juvenile court case, to terminate the guardianship.

At the trial, much of the evidence focused on the father’s problems controlling his anger. He admitted to arguing with his wife and others and to angry outbursts, sometimes in the children’s presence. The paternal grandparents moved to suspend visitation, which was granted. The father obtained counseling and visits later resumed.

The trial court entered an order finding that although the father had shortcomings, the evidence did not show he was unfit to support terminating his parental rights. The court therefore terminated the guardianship.

The paternal grandparents appealed. They argued the court improperly placed the burden on them instead of the father and applied the wrong standard of proof by focusing on parental unfitness rather than the children’s best interests.

The Supreme Court of Nebraska affirmed. The court explained that in guardianship termination proceedings involving a biological parent, the parental preference principle creates a rebuttable presumption that the best interests of a child are met by reunifying the child and parent. Someone who disputes the termination of a guardianship must prove by clear and convincing evidence that the biological parent is unfit or has given up his right to custody. Without this proof, the constitutionally protected nature of the parent-child relationship requires termination of the guardianship and reunification.

The paternal grandparents argued this case was different because it started as an adjudication under Nebraska’s juvenile code. The guardianship in this case was ordered based on the court’s authority under the juvenile code to place a child with a reputable person or suitable family member. The grandparents claimed the father’s motion to end the guardianship was effectively an objection to the case plan in the neglect proceedings. They argued he therefore had a burden under the statute governing those proceedings to prove the agency’s plan was not in the children’s best

The grandparents relied on In re Eric O. & Shane O., 617 N.W.2d 824 (Neb. Ct. App. 2000), which held the parental preference doctrine does not apply when children are adjudicated under juvenile court jurisdiction. However, a later decision, In re Xavier H., 740 N.W.2d 13 (Neb. Ct. App. 2007), held that even when children are adjudicated under the jurisdiction of the juvenile court, due process requires a showing of parental unfitness before depriving a parent of their parental rights.

The court explained that there is a rebuttable presumption that a child’s best interests are served through reunification and that presumption is only overcome when a parent is proved to be unfit. Even if the best interests standard used in juvenile adjudications were to prevail over well-established law in guardianship termination proceedings, the parental preference principle would still apply.

The court found the trial court correctly applied the parental preference principle when holding the guardianship should be terminated. Further, the record did not show clear and convincing evidence of parental unfitness required to oppose termination of the guardianship.