In re Interest of Lakota Z. & Jacob H.

I n re I nterest of L akota Z. and Jacob H., Jr .,
cHILdren under 18 years of age .
JerI H. and dennIs H., appeLLants , v.
Jacob H., sr ., appeLLee .
804 N.W.2d 174
Filed October 14, 2011. 	No. S-10-1046.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Child Custody: Parental Rights. Under the parental preference principle, a
parent’s natural right to the custody of his or her child trumps the interests of
strangers to the parent-child relationship and the preferences of the child.
3. Constitutional Law: Parental Rights: Presumptions. Absent circumstances
which justify terminating a parent’s constitutionally protected right to care for his
or her child, due regard for the right requires that a biological or adoptive parent
be presumptively regarded as the proper guardian for his or her child.
4. Parental Rights: Guardians and Conservators: Presumptions. In guardianship
termination proceedings involving a biological or adoptive parent, the parental
preference principle serves to establish a rebuttable presumption that the best
interests of a child are served by reuniting the child with his or her parent.
5. Parental Rights: Guardians and Conservators: Proof. An individual who
opposes the termination of a guardianship bears the burden of proving by clear
and convincing evidence that the biological or adoptive parent either is unfit or
has forfeited his or her right to custody. Absent such proof, the constitutional
dimensions of the relationship between parent and child require termination of
the guardianship and reunification with the parent.
6. Juvenile Courts: Parental Rights: Due Process. Even when children are adju-
dicated and under the jurisdiction of a juvenile court, the Due Process Clause of
the U.S. Constitution demands some showing of parental unfitness if parents are
to be deprived of their interest in the care, custody, and control of their children.
7. Parental Rights: Presumptions: Proof. There is a rebuttable presumption that
the best interests of a child are served by reuniting the child with his or her parent
that is overcome only when the parent has been proved unfit.
8. Juvenile Courts: Parental Rights: Case Disapproved. To the extent that In re
Interest of Eric O. & Shane O., 9 Neb. App. 676, 617 N.W.2d 824 (2000), holds
that the parental preference principle is not applicable to an adjudicated juvenile,
it is disapproved.
9. Parent and Child: Words and Phrases. Parental unfitness means a personal
deficiency or incapacity which has prevented, or will probably prevent, perform-
ance of a reasonable parental obligation in child rearing or which has caused, or
probably will result in, detriment to a child’s well-being.
Appeal from the County Court for Hall County: pHILIp M.
M artIn, Jr ., Judge. Affirmed.
584 	282 NEbrASkA rEPOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

Jerry Fogarty for appellants.
James A. Wagoner for appellee.
H eavIcan, 	c.J., 	WrIgHt, 	connoLLy, 	gerrard, 	stepHan,
MccorMack , and MILLer-L erMan, JJ.
gerrard, J.
The children who are the subject of this guardianship case
were adjudicated and placed in the care and custody of their
paternal grandparents after their parents neglected them, and
their grandparents were eventually appointed their guardians.
but their father, after completing drug court and obtaining
counseling, sought to have the guardianship terminated and
his children returned to him. The county court, finding that
the father was not an unfit parent, ordered that the guardian-
ship would terminate. The question presented in this appeal is
what standard of proof should have been applied to the father’s
request for termination of the guardianship.
bACkgrOUND
This case began with a juvenile petition filed in county
court on June 10, 2003, alleging that Lakota Z. and Jacob H.,
Jr. (Jacob Jr.), were children as defined under Neb. rev. Stat.
§ 43-247(3)(a) (Cum. Supp. 2002), because they lacked proper
parental care and were in a situation that was dangerous to
their health or morals. The petition was supported by the affi-
davit of a child protective services worker, who averred that
21-month-old Lakota and 7-month-old Jacob Jr. were at risk
due to parental neglect. Specifically, the affidavit indicated that
grand Island, Nebraska, police had found the children’s home
to contain drug paraphernalia, but not food or diapers, and that
after a domestic dispute between their parents, the children had
been moved to the home of their paternal grandparents, Jeri
H. and Dennis H. The court issued an ex parte order placing
Lakota and Jacob Jr. in the temporary custody of the Nebraska
Department of Health and Human Services (DHHS).
The children’s father, Jacob H., Sr. (Jacob Sr.), was charged
with child neglect and drug possession, along with false impris-
onment and assault arising out of a fight with the children’s
mother. Jacob Sr. admitted at trial that he had assaulted the
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children’s mother on several occasions. The objective of the
initial case plan was reunification, and with respect to Jacob Sr.,
the case plan established goals of managing his anger, address-
ing his individual health needs, living a chemical-free lifestyle,
and providing for the children’s needs. Jacob Sr. did not obtain
counseling and was removed from a family violence treatment
program for noncompliance. but a DHHS caseworker testified
that during that time, she believed Jacob Sr. and the children’s
mother might be able to “get their lives back on track.” So, the
second juvenile court case plan provided for guardianship, and
not termination of parental rights.
The guardian ad litem petitioned that Jeri and Dennis
be appointed as the children’s guardians. The county court
appointed them as guardians in an order filed under the juve-
nile case docket number on April 1, 2004. DHHS closed its
case file on the children. DHHS, the county attorney, Jacob Sr.,
and the children’s mother all waived any notice or participation
in any further court proceedings.
Jacob Sr. was admitted to drug court in 2005 and success-
fully completed the program in 2006. Jacob Sr.’s relationship
with the children’s mother ended at about the same time he
entered the drug court program. In 2008, Jacob Sr. filed a
motion in county court, under the juvenile case docket num-
ber, to terminate the guardianship. He alleged that the reasons
the guardianship had been established had been ameliorated,
because he had completed a drug court program and drug treat-
ment, married, obtained gainful employment and suitable hous-
ing for the children, and “emotionally reunited” with the chil-
dren. by the time of trial, Jacob Sr. had been working full time
for 2 years and was also working part time at another job. His
employment provided insurance for the children. In his motion,
Jacob Sr. alleged that he was a fit and proper person to have
exclusive care and custody of his children and that it would be
in the children’s best interests for him to resume custodial care.
A November 2008 journal entry established a visitation sched-
ule for Jacob Sr. and the children.
Much of the evidence presented at trial was directed at Jacob
Sr.’s ongoing difficulties controlling his temper. In December
2008, Jacob Sr. was involved in an argument with his parents
586 	282 NEbrASkA rEPOrTS

at their home when he arrived to pick the children up for visita-
tion. Jacob Jr. did not want to go, and Jacob Sr. became angry
when he and his parents disagreed about how to handle the
situation. Jacob Sr. admitted to other angry outbursts that had
occurred during 2008: specifically, an argument with his wife
and another argument with a store clerk. And he admitted that
his children had witnessed such outbursts. There was conflict-
ing testimony about whether, during his argument with his
wife, Jacob Sr. had knocked items off of bookshelves or broken
a piece of furniture.
In October 2009, Jeri and Dennis filed a motion to suspend
visitation based on an incident during a counseling session
involving Jacob Sr. and his mother that resulted in Jacob Sr.’s
swearing at the children’s counselor, Tracy Waddington, and
slamming the door as he left. The motion was granted ex parte.
Jacob Sr. admitted to the incident. but afterward, Jacob Sr.
sought his own mental health treatment and engaged his own
counselor to treat him for his anger control problems.
Janice rockwell, a licensed independent mental health prac-
titioner, testified that she had begun treating Jacob Sr. for anger
management in October 2009. She said that she had observed
Jacob Sr. and the children during joint counseling and said
they seemed comfortable with him. She said that Jacob Sr.
had learned coping skills to deal with anger appropriately and
opined that Jacob Sr. did not have an anger control problem at
the time of trial. She also said that she had no concerns about
Jacob Sr.’s being any kind of threat to the children’s safety, and
that she had also jointly seen Jacob Sr. and his parents and that
they had made progress in that relationship.
Jacob Sr. testified that he and rockwell had discussed ways
to interact with the children and to defuse conflicts with his
parents. He said that he had not had a significant argument
with his parents since December 2008. Jeri testified that Jacob
Sr. had originally resisted participation in counseling. but Jeri
said that she, Dennis, and Jacob Sr. had participated in some
joint counseling with rockwell that Jeri thought had gone well.
When asked, Jeri admitted that while she still wanted the chil-
dren to live with her and Dennis pursuant to the guardianship,
she did not believe Jacob Sr. was an unfit parent.
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Waddington, however, who had seen Jacob Sr. twice in the
context of family therapy, opined that Jacob Sr. was deficient
in addressing his relationship with Jeri and Dennis, which she
felt was detrimental to the children’s well-being. but when
asked if she believed Jacob Sr. was an “unfit” parent, she said
only that she had “concerns” about him. Essentially, the record
reflects a difference of opinion between the family’s counsel-
ors: Waddington believed that the relationship that should be
addressed first was that between Jacob Sr. and his parents,
while rockwell thought that the relationship between Jacob Sr.
and the children was more important.
Visitation had resumed regularly for Lakota after the inter-
ruption pursuant to the ex parte order, but Jacob Jr. stopped
going to Jacob Sr.’s home for visitation in early 2010. generally
described, the evidence establishes that Jacob Jr. is a picky
eater, and he can make himself vomit when he is given some-
thing that he does not want to eat. Jacob Sr. is less willing to
accommodate Jacob Jr.’s picky eating than Jeri and Dennis, or
Waddington, would prefer. Waddington explained that accord-
ing to Jacob Jr., Jacob Sr. took a harder line with him on his
eating preferences and that that was one of the primary reasons
Jacob Jr. was reluctant to visit or live with Jacob Sr.
Evidence was also adduced at trial regarding Jacob Sr.’s
use of alcohol. Jacob Sr. admitted drinking alcohol, but not to
excess, and estimated that he drank about 12 beers a week. He
did, however, admit that he had gotten drunk on his birthday 2
years before trial. Jacob Sr. seemed surprised when confronted
at trial with an exhibit suggesting that, as a part of his drug
court evaluation, he had been diagnosed with both drug and
alcohol dependence. There was no evidence submitted at trial
to suggest that Jacob Sr. drank to excess with any regularity,
nor did any evidence establish that Jacob Sr. had gotten drunk
more recently than 2 years before trial.
In summary, the evidence suggested that Jacob Sr. had seri-
ous substance abuse issues and emotional problems that he
began to control after his drug court experience and associated
substance abuse treatment. Although Jacob Sr. had a history
of physical violence toward the children’s mother, she testi-
fied that during her relationship with Jacob Sr., they had been
588 	282 NEbrASkA rEPOrTS

using drugs, and that any instances of domestic abuse between
them took place before Jacob Sr. was admitted to drug court.
And, she said, even before then, Jacob Sr. was good with the
children. The record contains no evidence of any assaultive
conduct by Jacob Sr. after his completion of drug court, nor
does it contain any evidence that he was abusive to the children
even before then. And while the record suggests that Jacob Sr.
continued to struggle with anger control even after completing
drug court, the evidence also establishes that he has certainly
made substantial progress on that issue since beginning his
own counseling.
After trial, on October 12, 2010, the county court entered
an order finding that while the court was “concerned with the
shortcomings” of Jacob Sr., the court did “not believe the evi-
dence establishes the burden necessary to show that he is unfit
and has, in fact, forfeited his parental rights.” The court entered
an order terminating the guardianship, effective January 1,
2011. Jeri and Dennis appeal.
ASSIgNMENTS OF ErrOr
Jeri and Dennis assign that the county court erred in (1)
incorrectly placing the burden of proof upon them instead of
upon Jacob Sr. and applying the incorrect standard of proof in
focusing upon parental unfitness instead of the best interests of
the children and (2) terminating the guardianship and awarding
custody to Jacob Sr.
STANDArD OF rEVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings.1
ANALySIS
standard of proof
As noted above, the county court terminated the guardian-
ship based on its conclusion that Jacob Sr. was not an unfit
parent. Jeri and Dennis argue that the court incorrectly required
1 In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011).
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proof of Jacob Sr.’s unfitness; instead, they argue, the court
should have simply determined what was in the best interests
of the children.
[2,3] but under the parental preference principle, a parent’s
natural right to the custody of his or her child trumps the
interests of strangers to the parent-child relationship and the
preferences of the child.2 Therefore, unless it has been affirm-
atively shown that a biological or adoptive parent is unfit or
has forfeited his or her right to custody, the U.S. Constitution
and sound public policy protect a parent’s right to custody of
his or her child.3 Absent circumstances which justify terminat-
ing a parent’s constitutionally protected right to care for his or
her child, due regard for the right requires that a biological or
adoptive parent be presumptively regarded as the proper guard-
ian for his or her child.4
[4,5] Consequently, in guardianship termination proceedings
involving a biological or adoptive parent, the parental prefer-
ence principle serves to establish a rebuttable presumption that
the best interests of a child are served by reuniting the child
with his or her parent.5 In other words, an individual who
opposes the termination of a guardianship bears the burden of
proving by clear and convincing evidence that the biological or
adoptive parent either is unfit or has forfeited his or her right
to custody. Absent such proof, the constitutional dimensions of
the relationship between parent and child require termination
of the guardianship and reunification with the parent.6
Jeri and Dennis acknowledge those principles. but, they
contend, this case is different because it began as an adjudica-
tion under the Nebraska Juvenile Code. They argue that unlike
the guardianships at issue in cases such as In re Guardianship
2 See, In re Guardianship of Robert D., 269 Neb. 820, 696 N.W.2d 461
(2005); In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238
(2004).
3 See In re Guardianship of D.J., supra note 2.
4 Id.
5 Id.
6 Id.
590 	282 NEbrASkA rEPOrTS

of Robert D.7 and In re Guardianship of D.J.,8 the guardianship
in this case was established pursuant to the court’s authority
to place a juvenile adjudged to be under § 43-247(3) in “the
care of some reputable citizen of good moral character” or “the
care of a suitable family.”9 They point out that a juvenile court
has jurisdiction over guardianship proceedings for a child over
which the juvenile court already has jurisdiction under another
provision of the Nebraska Juvenile Code.10 So, they assert that
Jacob Sr.’s motion to terminate the guardianship was in effect
an objection to the case plan. They argue that the burden was
therefore placed on Jacob Sr., under the statute in effect at
the time, to prove “by a preponderance of the evidence that
[DHHS’] plan is not in the juvenile’s best interests.”11 (The
statutory language upon which Jeri and Dennis rely has since
been repealed,12 but, for reasons that will become clear below,
that is not significant.)
Jeri and Dennis’ argument requires us to examine some
aspects of the rather unusual procedural posture of this case.
The case began, as explained above, as a juvenile adjudica-
tion and proceeded to disposition with the establishment of
the guardianship, at which point, all of the interested parties
save Jeri and Dennis waived further participation in the case. It
is not clear from the record whether any further dispositional
review hearings were held, but that is not surprising, because
all the interested parties except the guardians had waived par-
ticipation. And it is not even clear who would have participated
in such hearings. In other words, after the guardianship was
established, the case was treated much like an ordinary probate
guardianship. but the case filings, including the order terminat-
ing the guardianship, continued to occur on the juvenile court
docket. Therefore, although the proceedings were somewhat
7 In re Guardianship of Robert D., supra note 2.
8 In re Guardianship of D.J., supra note 2.
9 See Neb. rev. Stat. § 43-284 (reissue 2008).
10 See § 43-247(10).
11 See Neb. rev. Stat. § 43-285(2) (Cum. Supp. 2010).
12 See 2011 Neb. Laws, L.b. 648.
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informal, the best understanding of the record is that the guard-
ianship was established and terminated pursuant to juvenile
court authority. So, for purposes of evaluating Jeri and Dennis’
argument regarding the standard of proof, we assume that to
be the case.
[6,7] In making their argument, Jeri and Dennis rely upon the
Nebraska Court of Appeals’ decision in In re Interest of Eric O.
& Shane O.,13 in which the court held that the parental prefer-
ence doctrine is inapplicable when children are adjudicated
and under the jurisdiction of a juvenile court. but the court’s
decision in In re Interest of Eric O. & Shane O. is inconsistent
with our later decision in In re Interest of Xavier H.,14 in which
we held that even when children are adjudicated and under
the jurisdiction of a juvenile court, the Due Process Clause
of the U.S. Constitution demands some showing of parental
unfitness if parents are to be deprived of their interest in the
care, custody, and control of their children.15 We reasoned that
the showing of “unfitness” required by the Constitution was
encompassed by a determination of the child’s best interests.16
We explained:
Although the name of the “‘best interest of the child’”
standard may invite a different “‘intuitive’” understand-
ing, “[t]he standard does not require simply that a deter-
mination be made that one environment or set of cir-
cumstances is superior to another.”[17] rather, as we have
explained, “the ‘“best interests” standard is subject to the
overriding recognition that the “relationship between par-
ent and child is constitutionally protected.”’”[18] There is
13 In re Interest of Eric O. & Shane O., 9 Neb. App. 676, 617 N.W.2d 824
(2000).
14 In re Interest of Xavier H., 274 Neb. 331, 740 N.W.2d 13 (2007).
15 See id. See, also, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147
L. Ed. 2d 49 (2000); Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388,
71 L. Ed. 2d 599 (1982); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct.
549, 54 L. Ed. 2d 511 (1978).
16 See In re Interest of Xavier H., supra note 14.
17 In re Yve S., 373 Md. 551, 565, 819 A.2d 1030, 1038 (2003).
18 In re Guardianship of D.J., supra note 2, 268 Neb. at 246-47, 682 N.W.2d
at 245.
592 	282 NEbrASkA rEPOrTS

a “rebuttable presumption that the best interests of a child
are served by reuniting the child with his or her parent.”[19]
based on the idea that “fit parents act in the best interests
of their children,”[20] this presumption is overcome only
when the parent has been proved unfit.21
[8] In short, even if Jeri and Dennis were correct in arguing
that the “best interests” standard associated with juvenile adju-
dication somehow trumped our well-established law regard-
ing the termination of a guardianship, the parental preference
principle is still applicable, even to an adjudicated juvenile.
To the extent that In re Interest of Eric O. & Shane O.22 holds
otherwise, it is disapproved. Jeri and Dennis’ first assignment
of error is without merit.
parentaL fItness
Jeri and Dennis’ remaining argument is that the court erred
in terminating the guardianship. They argue, based on the
facts, that Jacob Sr. “did not prove by a preponderance of the
evidence” that terminating the guardianship was in Lakota and
Jacob Jr.’s “best interests.”23 As explained above, the correct
standard of proof is actually whether there is clear and con-
vincing evidence that Jacob Sr. is unfit. but even if we construe
Jeri and Dennis’ argument as questioning Jacob Sr.’s fitness as
a parent, we find it to be without merit.
[9] We said in Ritter v. Ritter24 that “in relation to child
custody in a marital dissolution proceeding,” parental unfit-
ness “means a personal deficiency or incapacity which has
prevented, or will probably prevent, performance of a reason-
able parental obligation in child rearing and which has caused,
19 Id. at 244, 682 N.W.2d at 243.
20 Troxel, supra note 15, 530 U.S. at 68. See, also, Parham v. J. R., 442 U.S.
584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).
21 In re Interest of Xavier H., supra note 14, 274 Neb. at 349, 740 N.W.2d at
25.
22 In re Interest of Eric O. & Shane O., supra note 13.
23 brief for appellants at 14.
24 Ritter v. Ritter, 234 Neb. 203, 210, 450 N.W.2d 204, 210 (1990).
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or probably will result in, detriment to a child’s well-being.”25
In Ritter, we were primarily concerned with emphasizing that
evidence of unfitness should be focused upon a parent’s ability
to care for a child, and not any other moral failings a parent
may have. It is equally worth emphasizing, however, that evi-
dence of unfitness should be focused upon a parent’s present
ability to care for a child and that evidence of a parent’s past
failings is pertinent only insofar as it suggests present or future
faults (although we note that in some instances, such evidence
may be very pertinent). And we have analogized the quantum
of proof necessary to prove unfitness to the proof necessary to
terminate parental rights, reasoning that “[i]f the evidence of
unfitness is insufficient to justify termination of parental rights
in an action maintained under the Nebraska Juvenile Code,”
then “similarly deficient evidence of parental unfitness” would
prevent a court from granting child custody “to one who is a
stranger to the parent-child relationship.”26
Applying those principles, we have found on several occa-
sions that a parent is fit, despite a history of substance abuse,
where the evidence showed that the parent had made progress
in addressing those issues.27 And we have found that parents
who had previously been part of a mutually abusive relation-
ship were not unfit where there was no evidence of abuse
toward the children.28 The evidence in this case is comparable.
There is little question that had we been presented with the
question of Jacob Sr.’s fitness as a parent in 2005, he would
not have been found fit. but it is not 2005. The evidence proves
beyond reasonable dispute that since completing the drug court
25 See, also, Farnsworth v. Farnsworth, 276 Neb. 653, 756 N.W.2d 522
(2008); Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992).
26 Uhing, supra note 25, 241 Neb. at 377, 488 N.W.2d at 373, citing Marcus
v. Huffman, 187 Neb. 798, 194 N.W.2d 221 (1972).
27 See, e.g., In re Guardianship of D.J., supra note 2; Stuhr v. Stuhr, 240
Neb. 239, 481 N.W.2d 212 (1992); Robertson v. Robertson, 217 Neb. 786,
350 N.W.2d 576 (1984); In re Interest of Hitt, 209 Neb. 900, 312 N.W.2d
297 (1981). Cf. In re Guardianship of Cameron D., 14 Neb. App. 276, 706
N.W.2d 586 (2005).
28 See Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007).
594 	282 NEbrASkA rEPOrTS

program, Jacob Sr. has made substantial progress in establish-
ing the stability in his life that is necessary to care for his chil-
dren. While this does not wholly mitigate his history of drug
use and abusive behavior, it does suggest that such conduct is
unlikely to recur.
The only significant deficiency identified in Jacob Sr.’s abil-
ity to parent after 2006 is his problem with controlling his
temper. but the record also establishes that Jacob Sr. has rec-
ognized that problem, sought treatment for it, and made sub-
stantial progress in that area as well. And there is no evidence
to suggest that any of Jacob Sr.’s abusive or angry behavior
was ever directed at the children, even before treatment. In
fact, there was no witness at trial who was willing to opine that
Jacob Sr. was an unfit parent.
In short, while we share the county court’s concern about
Jacob Sr.’s shortcomings as a parent, we are mindful of the fact
that “‘“[t]he law does not require perfection of a parent.”’”29
There is little question that the alleged deficiencies in Jacob
Sr.’s present ability to parent would not have justified removal
of the children from his home had those deficiencies been the
bases upon which removal had been sought in the first place.30
Therefore, on our de novo review of the record, we do not find
the required clear and convincing evidence of parental unfit-
ness that is necessary to oppose termination of the guardian-
ship. We find no merit to Jeri and Dennis’ remaining assign-
ment of error.
CONCLUSION
The county court correctly applied the parental preference
principle and reasoned that the guardianship should be ter-
minated in the absence of clear and convincing evidence that
Jacob Sr. was an unfit parent. And the court correctly con-
cluded that given the evidence, Jacob Sr. had not been proved
unfit. The county court’s decision is affirmed.
affIrMed.
29 In re Interest of Xavier H., supra note 14, 274 Neb. at 350, 740 N.W.2d
at 26.
30 See In re Interest of Xavier H., supra note 14.
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