Heather R. v. Mark R. (In re K.R.)

304 Neb. 1

932 N.W.2d 737

IN RE GUARDIANSHIP OF K.R., a minor child.

Heather R., appellant,

v.Mark R. and Cynthia R., Guardians, appellees.

No. S-17-846.

Supreme Court of Nebraska.

Filed September 6, 2019

Julie A. Frank, Omaha, for appellant.

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 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 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 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 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...