Mary S. v. Marcia S. (In re Guardianship of Kyoko R.)

IN RE GUARDIANSHIP OF KYOKO R., A MINOR CHILD.

MARY S. AND MARTIN S., COGUARDIANS AND COCONSERVATORS, APPELLANTS, v. MARCIA S., APPELLEE.

No. A-18-595.

NEBRASKA COURT OF APPEALS

October 15, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the County Court for Douglas County: THOMAS K. HARMON, Judge. Affirmed.

Richard J. Schicker for appellants.

Marcia S., pro se.

MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Mary S. and Martin S. appeal the order of the Douglas County Court terminating their guardianship of their 15-year-old granddaughter Kyoko R. Mary and Martin (collectively the Guardians) assign nineteen assignments of error which can be summarized into the following major categories: The court erred (1) in its handling of the in camera interview of Kyoko; (2) in failing to include questions submitted to the court by the parties (to be considered by the court in conducting the in camera interview) as part of the transcript or supplemental transcripts; (3) in, sua sponte, taking judicial notice of the pleadings in the case without notice to the parties and providing the parties the opportunity to respond; (4) in creating a record which contains reference to certain"indiscernible" responses throughout Kyoko's in camera interview; (5) in committing evidentiary errors in connection with the offer of certain exhibits and evidence; and (6) in numerous findings contained in the portion of the court's order entitled "findings of fact and conclusions of law" which resulted in error in its order terminating the guardianship. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

This case involves the Guardians' guardianship of their granddaughter Kyoko, who was born in 2002. Marcia S. and Lawrence R. are Kyoko's biological parents. Although they never married, they resided together and jointly cared for Kyoko until they separated when Kyoko was about 2 years old. Following their separation, Kyoko lived at times with Lawrence, at times with Marcia, and at times with Alma F., who was Lawrence's mother. Marcia, Lawrence, and Alma worked collectively and cooperatively in raising Kyoko. This arrangement was a voluntary arrangement among them and there was no court-ordered separation or legal custody determination. This arrangement lasted until Lawrence's death in October 2013.

Following Lawrence's death, Marcia agreed to allow a despondent Kyoko, then 11 years old, to live with Alma because Kyoko expressed that she preferred to live with Alma because it made her feel closer to Lawrence. Shortly thereafter, in January 2014, Marcia agreed to the appointment of Alma as Kyoko's guardian on a temporary basis due to circumstances in Marcia's life including her pending March 2014 incarceration in Missouri on a fourth-offense driving under the influence (DUI) conviction.

Alma served as Kyoko's guardian until Alma's own incarceration later in 2014. Prior to Alma's incarceration, Alma chose her daughter, Melissa B., to care for Kyoko in her absence. Although Alma attempted to regain physical custody of Kyoko at the end of her 1-year term of incarceration, she learned that Melissa had been appointed as Kyoko's guardian requiring a transition. However, while awaiting the transition, Marcia's parents, Martin and Mary, were appointed as Kyoko's guardians.

After Marcia's release from incarceration in July 2016, Marcia commenced visitations with Kyoko and eventually filed to terminate the Martin and Mary's guardianship. After Marcia's release from incarceration and, until the time of the hearing, the Guardians allowed Kyoko, at times, to stay with foster parents; with the family of one of Kyoko's close personal friends; and with Alma. Eventually Kyoko resided with the Guardians in Gretna.

1. PRETRIAL

In October 2016, Marcia filed a petition to terminate Kyoko's guardianship with Martin and Mary. Trial in this matter was held in May 2018. Prior to the commencement of the trial, the court informed the parties that it intended to conduct an in camera interview of Kyoko. The court's explanation of the reason for the in camera interview and process to be followed was captured in the following colloquy between the court and Mr. McCann, attorney for the Guardians:

THE COURT: . . . Number two, as it relates to my interview of the child, these are my rules as it relates to that interview. I will interview the child, but it will not be today. I'm going to allow the guardian ad litem, I'm going to allow the mother, and I'm going toallow Mr. McCann to submit questions to me that you would like me to pose. The interview itself will not take place in front of any of the parties; not in front of the mother. The only party that will be available to the youngster is the guardian ad litem, who will arrange a time when she and I can visit. I reserve the right to use your questions. I'll choose those questions which I deem to be appropriate under the circumstances. That's my intention as it relates to the interview of the child. Any comments as it relates to that?

MR. McCANN: My question would be, on the interview of the child, would there be a record made of that?

THE COURT: I will absolutely be on -- it will be in front of my bailiff and -- it will be in the presence of my bailiff and I will arrange a time when the guardian ad litem can present the child to me to conduct that interview. But I will give each of the parties an opportunity -- and I'll make that determination after I hear the evidence as to when that will occur, and I will give everyone an appropriate amount of time to submit those questions.

MR McCANN: So when you say the bailiff would be present, that means that --

THE COURT: She will be recording. My bailiff here is my -- we do not have a court reporter. My bailiff will act as my court reporter and everything that I do, up to and including each and every question, will be on the record. So, in the event that [Marcia] or you, Mr. McCann, choose to appeal any decision I make, there will be a record of what the child told me under oath. It will be under oath, but it's been my experience over a long period of time that I will have a better opportunity to visit with her, in her position, without any pressure from the grandparents and from the mother . . . .

After admonishing the parties not to have any conversation with Kyoko about her testimony, and after clarifying the timing of the interview in relation to that, the following colloquy ensued:

MR. McCANN: No questions about that. I understand the ruling of the Court. My clients understand the ruling of the Court. The question would be -- that did come up, I take it the order would be true as -- not only as to the parties, legal representatives --

THE COURT: Correct.

MR McCANN: -- and other witnesses to the case?

THE COURT: No individual will be required -- and I will enter a specific order at the conclusion of this hearing today that no one will talk with Kyoko about this interview. And if I find that they did, I will hold a hearing to determine whether or not I'm going to find that individual in contempt for violating that order, and it will be clear when I'm finished here today.

The court then dictated an order consistent with the above-stated colloquy in the presence of the parties. Following that dictation, in response to the court's request to discuss any other preliminary matters, the following took place:

MR. McCANN: Your Honor, with respect to the court proceedings involving [Kyoko], may the parties and counsel be present in the hallways and at the courthouse in case --

THE COURT: No. No. No. The only person to be around is Kyoko and her guardian ad litem, period. Any other questions?

MR. McCANN: Nothing further.

Neither party, nor the guardian ad litem (GAL), objected to the court's stated process for interviewing Kyoko during the hearing or at trial.

2. TRIAL

Trial was held over 3 days in May 2018. The Guardians called Marcia, Martin, and Dr. Thomas Haley as witnesses. Marcia called herself as a witness along with Alma and Jessica Workman, Marcia's long-time acquaintance. Additionally, the court conducted an in camera interview of Kyoko with only the GAL present.

(a) Guardian's Witnesses

(i) Marcia

Marcia testified that, following her release from incarceration in 2016, she visited Kyoko whenever she could and attended Kyoko's parent-teacher conferences and track meets when she could and when she was not constrained by issues involving her 1-year-old child. She denied improperly supervising Kyoko or allowing her to use marijuana in her presence. Marcia testified that her relationship with Kyoko's foster parents was very good, the visitations were amicable, and that her visits with Kyoko were only strained when the Guardians were involved. While raising Kyoko, Marcia testified her relationship with the Guardians was strained. Marcia testified that she saw a counselor due to her relationship issues with the Guardians, and testified she had been diagnosed with PTSD, anxiety, and attention deficit disorder and she acknowledged taking medication for her medical conditions.

Marcia testified that, since her release from prison in 2016, she has worked to change her life so that she could be a responsible parent to Kyoko. In her own words, in response to a question governing whether she had a second child out-of-wedlock in order to reunify her with Kyoko, Marcia stated:

I wouldn't say - I was expecting to be reunited with Kyoko anyway, because all of my plans were to make good decisions and to be the strong mother that, you know, I have always tried to be. Obviously, I've made some mistakes. But, I mean, I took all of the classes they had in prison. I tried to make the best of it. I wanted to be the -- especially with -- she was always daddy's girl, but with her dad being in heaven, like, I

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