to
IO
Ia
a
a
a
o
a
Ia
a
a
o
o
o
o
o
o
a
o
o
o
o
o
o
a
a
o
a
a
o
a
a
a
o
o
a
o
I
Case
No. A-14-000694
In the
COURT OF APPEALS OF NEBRASKA
I
In the Matter
FILED
of
The Guardianship of
NEVEAH CHA,RON JEFFERSON, A/WA
OCT 1
4
Zut+
NEVEAH CHA'RON YOUNG,
A Minor and Incapacitated Person
^."&tihBlffiE5^Br*
FLETCHER T. YOUNG
Co-Guardian/Petitioner-Appellant
APPEAL FROM THE COUNTY COURT
OF DOUGLAS COUNTY, NEBRASKA
Honorable Thomas Harmon, County Court Judge
BRIEF OF FLETCHER T. YOUNG, APPELLANT
Patrick R. Runge, NSBA #20480
Runge Law Office LLC
4060 Vinton Street, Suite 103
Omaha, NE 68105-3863
e-mail : [email protected]
Attorney for Appellant
ilnililruffiffiiluflilruuuililililnilil
I
O
o
O
o
I
I
I
I
I
a
o
o
o
o
a
a
a
I
o
o
o
o
o
o
a
a
a
a
o
o
o
o
I
a
o
a
a
o
o
a
a
o
o
TABLE OF CONTENTS
Jurisdictional Statement
J
Statement of the Case
J
A.
Nature of the Case
J
B.
The Issue Actually Tried in the Case Below
3
C.
How The Issues Were Decided
J
D.
Scope of Review
4
Assignments of Error
4
Propositions of Law
4
Statement of the Facts
8
Summary of the Argument
9
Argument
10
I.
A guardianship interferes with the constitutionally-
l0
protected right ofa parent to raise his or her child, and
cannot survive without a showing of parental unfitness
or abandonment.
II.
Based on the trial court's finding, Prentice did not
meet her burden to maintain the guardianship, and the
trial court should have accordingly terminated the
guardianship.
1l
u.
Prentice could not have been in loco parentis with
Neveah because Young had primary physical custody
of Neveah.
t2
IV.
Because the trial court made an effor of law, the trial
court should have granted the Motion for New Trial.
13
t4
Conclusion
In re guardianship ofNeveah J. - A-14-000694
Brief ofAppellant-Page l of l5
a
o
o
o
o
TABLE OF CASES
STATUTES
.
O
O
O
Npe. REv. Srer. $30-2608(a)
Npe. REv. Srar. 525-1142
.
CASES
a
In re guardianship of D.J.,268 Neb. 239 (2004).
v. watcott, 434 u.s. 246, zss, e8 s.ct. s4e, s4 L-Ed.zd
o
a
O
O
a
Y
a
o
o
o
o
O
a
o
o
o
o
a
o
O
o
o
o
o
o
a
a
a
O
o
o
o
o
?r';i;i:
4,9
8, 13,
(1984)
(2012).
(2003).
(2002).
i)astellano v. Bitkower,2l6 Neb. 806,346N.W.2d 24g
In re guardianship of Jordan M.,20 Neb. App. 172
State o/b/o Coombs v. Neil, 11 Neb. App. 890
Inrelnterestof Destinys.,263Neb.255
In re guardianship ofNeveahJ. - 4-14-000694
Brief of Appellant - Page 2 of 15
14
4,5,6,10,
5,6, l0
srr
6
6,
10
7,10,12
7,t2,13
11
I
o
a
o
o
I
o
o
o
o
o
o
o
o
a
o
o
o
o
O
o
a
o
a
o
o
o
o
a
o
o
o
I
o
o
I
a
O
o
o
a
o
a
JURISDICTIONAL STATEMENT
The Douglas County Court (hereinafter "the trial court"), the Honorable Thomas
Harmon presiding, held trial on the Amended Motion to Terminate Guardianship and
Motion to Dismiss frled by the biological father (hereinafter referred to as "Young") and
the biological aunt (hereinafter referred to as "Prentice") with regards to Neveah J.
(hereinafter "Neveah"), a minor child. On June 04,2014, the trial court entered an Under
Advisement Ruling denying the request
of both parties to terminate the underlying
guardianship (T33). Young filed for a Motion for New Trial on June 09, 2014, which was
denied by the trial court on July 18,2014 (T51). Young filed a Notice of Appeal with this
Court subsequent to the denial of the Motion for New Trial.
STATEMENT OF THE CASE
A.
Nature of the Case
Young brings this case subsequent to the trial court denial of his Motion to
Dismiss the underlying guardianship, and the trial court's denial of a Motion for New
Trial.
B.
The Issue Actually Tried
In The Court Below
The issue actually tried in the trial court was whether or not the guardianship
could continue to be in existence, based on the evidence presented before the trial court.
C.
How The Issues Were Decided
At the close of evidence, the trial court found that neither Young nor Prentice's
request to terminate the guardianship (in Young's case, an outright termination, and in
In re guardianship ofNeveah J.
Brief of Appellant
-
-
A-14-000694
Page 3
of
15
lo
lo
o
O
o
o
o
o
a
o
o
o
o
o
o
o
o
o
o
a
o
o
o
a
O
o
O
o
o
o
o
o
o
o
o
a
o
a
o
o
a
o
o
Prentice's case, a termination of the co-guardianship leaving Prentice as sole guardian),
and left the previous guardianship order in place.
D.
Scope of Review
The review of this Court is to determine whether the trial court erred in denying
Young's Motion to Dismiss and terminate the guardianship over Young's biological
daughter.
ASSIGMENTS OF ERROR
A.
The trial court erred in failing to terminate the guardianship even after finding that
Young was neither an unfit parent nor had Young abandoned his daughter.
B.
The trial court erred in finding Prentice to be in loco parentis with Neveah.
C.
The trial court erred in not finding it was an error of law at the Motion for New
Trial not to terminate the guardianship even after finding that Young was neither an unfit
parent nor had Young abandoned his daughter.
PROPOSITIONS OF LAW
I.
The father and mother are the natural guardians of their minor children, and are
duly entitled to their custody and to direct their education, being themselves competent to
transact their own business and not otherwise unsuitable.
If
either dies or is disqualifred
from acting, or has abandoned his or her family, the guardianship devolves upon the other
except as provided in this section. NEe. REv. Srnr. $30-2608(a).
Inre guardianship ofNeveah
Brief of Appellant
-
I
-A-14-000694
Page 4
of
I5
a
o
o
O
O
O
o
a
a
o
a
o
o
o
o
o
o
o
o
O
o
O
o
a
o
o
o
o
o
o
o
a
o
O
o
o
o
o
o
a
o
o
o
il.
The constitutional concerns which serve as the justification for the parental
preference principle in other situations also apply to parent's seeking to regain custody by
terminating the guardianship with respect to their children. Absent circumstances which
terminate a parents constitutionally protected right to care for his or her child, due regard
for that right requires that a biological or adoptive parent be presumptively regarded
as
the proper guardian for his or her child. In re guardianship of D.J.,268 Neb. 239 (2004).
m.
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 the child are served by reuniting the minor child with his or her parent. 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
is either 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. In re guardianship of D.J., 268
Neb.239 (2004).
ry.
In custody disputes between a parent and a nonparent, courts turn to the parental
principle because the best interest standard, taken to its logical conclusion, would place
In re guardianship ofNeveah "i. - 4-14-000694
Brief of Appellant - Page 5 of l5
a
o
o
o
o
o
o
o
o
a
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
O
o
o
o
o
o
O
O
o
O
o
o
o
o
the minor children of all but the "worthiest" members of society in jeopardy of a custody
challenge. Quillion v. Walcott,434 U.S. 246,255,98 S.Ct. 549,54L.F,d.2d 511 (1978).
V.
The relationship between a parent and child is constitutionally protected. Quillion
v. Walcott,434 U.S. 246,255,98 S.Ct. 549,54L.8d.2d 511 (1978).
VI.
Under the principle of parental preference, a court may not properly deprive
a
biological or adoptive parent of the custody of the minor child unless it is affirmatively
shown that such parent is unfit to perform the duties imposed by the relationship or has
forfeited that right. In re guardianship of D.J.,268 Neb. 239 (2004).
vII.
Clear and convincing evidence means the amount of evidence which produced in
the trier of fact a firm belief or conviction about the existence of a fact to be proved.
'Castellano
v. Bitkower, 216 Neb. 806,346 N.W.2d 249 (1984).
vm.
Parental unfitness is defined as a personal deficiency or incapacity which has
prevented, or
will probably prevent, performance of
a reasonable parental obligation in
child rearing and which has caused, or probably will result in, detriment to a child's wellbeing. In re guardianship of Jordan M., 20 Neb. App. 172 (2012).
In re guardianship of Neveah J. - A- I 4-000694
Brief of Appellant - Page 6 of 15
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
O
o
O
o
o
o
a
o
O
IX.
Parental forfeiture means that parental rights may be forfeited
continuous,
ffid
repeated neglect
of a child
and a failure
by
substantial,
to discharge the duties of
parental care and protection. State o/b/o Coombs v. Neil, 11 Neb. App. 890 (2003).
X.
A person standing in loco parentis to a child is one who has put himself or herself
in the situation of a lawful parent by assuming the obligations incident to the parental
relationship, without going through the formalities necessary to a legal adoption, and the
rights, duties, and liabilities of such person are the same as those of the lawful parcrfi- In
re Interest of Destiny 5.,263 Neb. 255 (2002).
xI.
In order to stand in loco parentis, one must assume all obligations incident to the
parental relationship. These obligations include providing support for the child and
providing day-to-day care for the child. In re Interest of Destiny 5., 263 Neb. 255 (2002).
xII.
Once the person alleged to be in loco parentis no longer discharges all duties
incident to the parental relationship, the person is no longer in loco parentis. Termination
of the in loco parentis relationship also terminates the corresponding rights
responsibilities afforded thereby . In re Interest of Destirry 5., 263 Neb. 255 (2002).
In re guardianship ofNeveahl - 4-14-000694
Brief of Appellant - Page 7 of 1 5
and
lo
o
o
o
o
a
o
o
o
o
a
a
o
a
o
o
a
o
o
o
o
o
O
a
o
o
o
o
o
o
o
o
O
o
o
o
o
o
o
o
a
o
o
xIII.
A new trial is a reexamination in the same court of an issue of fact after
a verdict
by a jury, report of a referee, or a trial and decision by the court. The former verdict,
report, or decision shall be vacated and a new trial granted on the application of the party
aggrieved for any of the following causes affecting materially the substantial rights of
such party: that the verdict, report, or decision is not sustained by sufficient evidence or is
contrary to law; error of law occurring at the tnal atd excepted to by the party making the
application. Nps. Rrv. Srer. 925-1142(6) and (8).
STATEMENT OF THE FACTS
is a ten-year-old girl, the daughter of Young and niece of
Prentice.
Prentice was appointed as Neveah's guardian by the Douglas County Court
in 2009.
Neveah
Subsequent to the entry of the guardianship, Young initiated a custody proceeding in the
Douglas County District Court. By agreement of the parties, a custody order was entered
in said court finding Young to be Neveah's fathe4 awarding him legal and primary
physical custody of Neveah, but directing the parties to comply with the provisions of a
separate county court order appointing Young and Prentice as co-guardians.
Subsequent to the entry of said orders, disagreements arose between Young and
Prentice with regards to the proper raising of Neveah. Actions were filed in both the
district court and the county court in which Prentice asked to be appointed as sole
guardian of Neveah, and Young asked for the guardianship to be dismissed outright and
for him to be awarded sole legal and physical custody of Neveah. The district court
ln re guardianship ofNeveah J.
Brief of Appellant
-
A-14-000694
- Page 8 of I 5
o
a
o
o
o
a
o
o
o
o
o
o
o
O
o
o
O
o
o
o
a
o
a
o
o
o
o
o
o
o
o
O
o
a
o
O
o
a
o
o
o
o
o
proceedings were held
in
abeyance pending
the completion of the county court
proceedings.
After trial, the county court found that "[t]he record is devoid of any proof that
Young is an unfit parent" (T47)- However, the trial court also found Prentice to
be
standing in loco parentis with Neveah (T38), and denied Young's Motion to Dismiss and
left the co-guardianship order befween Young and Prentice in place.
SUMMARY OF THE ARGUMENT
A
guardianship is an interference with the constitutionally-protected right
biological parent to raise his or her child, and can only survive
if
of
a
the proponent of the
guardianship proves by clear and convincing evidence that the parent is unfit or has
surrendered his or her right to the child. The record is devoid of any such evidence and,
therefore, the continuing existence of the guardianship violates Young's constitutionallyprotected right to parent Neveah.
Although not explicitly stated,
it may be inferred
that the trial court refused to
terminate the guardianship based on its finding that Prentice stood in loco parentis with
regards to Neveah. However, the evidence is uncontroverted that Young was Neveah's
primary custodian, meaning that Prentice did not perform all of the duties incident to a
parental relationship, and therefore could not stand
in loco parentis with
Neveah.
In re guardianship of Newah
Brief of Appellant
-
"/.
-
4-14-000694
Page 9
of
I5
regards to
o
o
o
o
o
o
o
O
o
o
o
o
o
O
o
o
o
o
a
o
o
o
o
o
o
o
o
o
o
a
o
a
o
o
o
o
O
o
o
o
o
o
o
ARGUMENT
I
A guardianship interferes with the constitutionally-protected right of a parent to
raise his or her child, and cannot survive without a showing of parental unfitness or
abandonment.
As Neveah's only surviving parent, Young is the only remaining natural guardian
of Neveah. Nse. Rlv. Srar. $30-2608(a). Young's right as a parent to be Neveah's
natural guardian is constitutionally protected. In re guardianship of D.J., 268 Neb. 239
(Neb. 2004). Young's right to be Neveah's natural guardian can only be overcome by
(applying the parental preference doctrine) the party asking to interfere with the natural
guardianship of a parent "affirmatively [shows] that such parent is unfit to perform the
duties imposed by the relationship or has forfeited that right." Id. at244.
Parental unfitness is defined as "a personal deficiency or incapacity which has
prevented, or
will probably prevent, performance of a reasonable parental obligation in
child rearing and which has caused, or probably will result in, detriment to a child's wellbeing." In re guardianship of Jordan M., 20 Neb. App. 172, 180 (Neb. App.2012). A
parent's rights may be forfeited "by substantial, continuous, and repeated neglect of
a
child and a failure to discharge the duties of parental care and protection." State o/b/o
Coombs v. Neil, l1 Neb. App. 890, 895 (Neb. App. 2003).
The underlying rationale for the parental preference doctrine, and the reason for a
parent's right to raise a child being constitutionally protected, was described by the
United States Supreme Court as follows:
In custody disputes between a parent and a nonparent, courts turn to the
parental preference principle because the best interest standard, taken to its
logical conclusion, would place the minor children of all but the
"worthiest" members of society in jeopardy of a custody challenge.
Quillion v. Walcott, 434 U.S. 246,255,98 S.Ct. 549, 54 L.Ed.zd. 5ll
(1e78).
In re guardianship ofNeveah J. - A-14-000694
Brief of Appellant - Page l0 of l5
o
tO
o
o
o
o
O
o
o
o
o
The parental preference doctrine clearly applies not only to establishment of
guardianships,
guardianship with respect
to their children." In re interest of D.J., supra at
the
248,
Specifically:
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 the child are served by reuniting the
minor child with his or her parent. 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 is
either 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.
Id. at249.
O
O
o
o
o
o
o
o
o
o
o
a
o
o
o
o
o
o
o
a
o
a
a
O
o
a
o
o
o
o
o
but also "to parents seeking to regain custody by terminating
II.
Based on the trial court's findings, Prentice did not meet her burden to maintain
the
guardianship.
the guardianship, and the trial court should have accordingly terminated
Young's action
at the trial court was clearly a
guardianship termination
proceeding. As a result, he enjoyed the rebuttable presumption that the best interest of
Neveah would be for Young to enjoy his full, unimpeded, and constitutionally-protected
right to raise his daughter. Prentice, in opposing the guardianship's termination, had the
burden to prove by clear and convincing evidence that Young was either unfit or had
forfeited his right to custody.
Based on the findings of the trial court, Prentice failed to meet that burden. The
trial court specifically foturd that "[t]he record is devoid of any proof that Young is
an
unfit parent." (T47). Further, the trial court found that "Young has assumed the role of
father to Neveah and based upon the expert testimony has become an integral part
of
Neveah's life." (T46). Although the trial court did not expressly address the issue, such a
In re gtardianship of Neveah
Brief of Appellant
-
I - 4-14-000694
Page I
I of
15
(,
t
a
o
O
O
o
o
a
O
o
o
o
O
o
o
o
o
o
O
o
o
o
o
a
o
o
o
O
o
O
o
a
o
o
o
o
o
o
o
o
O
o
finding would be irreconcilable with the parental forfeiture standard, which would require
a finding of "substantial, continuous, and repeated neglect of a child and a failure to
discharge the duties of parental care and protection." State o/b/o Coombs v. Neil, suprq.
And, if there was any doubt, the trial court found as follows:
"Prentice opposes the termination of Guardianship so she bears the burden
of proving by clear and convincing evidence that Young is either unfit or
has forfeited his right to custody. Prentice has failed to meet that burden."
(T47, emphasis added)
Therefore, the trial court's own hndings demonstrated that Prentice failed to meet
the burden clearly outlined for a non-parent in a termination of guardianship proceeding.
Accordingly, it was an eror of law for the trial court, after making those findings, to not
terminate the guardianship and retum custody of Neveah to Young.
ru.
Prentice could not have been in loco parentis with Neveah because Young had
primary physical custody of Neveah.
Although the trial court did not explicitly say the finding was related to the denial
of Young's Motion to Dismiss, the trial court did find Prentice to stand in loco parentis to
Neveah. (T38). Such a finding, however, is contrary to established law.
To be a person standing in loco parentis with a child, a court must find that
person to have "put himself or herself in the situation of a lawful parent by assuming the
obligations incident to the parental relationship." In re interest of Destiny S., 263 Neb.
255,261 (Neb. 2002). Specifically, to be found in loco parentis, the person in question
must "assume
all
obligations incident to the parental relationship. These obligations
include providing support for the child and providing day-to-day care for the child." Id.
(emphasis added). The status of in loco parentis is not permanent, and "[o]nce the person
In re guardianship ofNeveah "I. -A-14-000694
Brief of Appellant - Page l2 of l5
o
o
o
o
o
a
o
o
o
o
o
o
o
o
o
o
o
o
o
a
o
o
a
o
o
o
o
O
O
o
o
O
o
o
o
o
o
o
o
o
o
a
a
alleged to be
in loco parentis no longer discharges a// duties incident to the parental
relationship, the person is no longer in loco parentis." Id. (emphasis added).
The trial court found that Prentice was not responsible for "all duties incident to
the parental relationship" as defined above. Specifically, the trial court found that "Young
consented to Prentice's performance of parental duties and acquiesced to her assuming
some but not
all of the day-to-day care for Neveah," (T38, emphasis added) and that
"'(oung has assumed the role of father to Neveah and based upon the expert testimony
hirs become an integral part
of
Neveah's
life." (T46) Further, the District Court
proceeding (agreed to by Young and Prentice) awarded Young "the care, custody and
control of [Neveah]." (T9)
Based on those findings, and the District Court order, it is clear that Prentice does
not "discharge all duties incident to the parental relationship," as is required by the rule in
Destiny S. for her to be considered in loco parenfls. Accordingly, the trial court was in
emor when
it made such a finding.
il/.
Because the trial court made on error of latv, the trial court should have granted
the Motionfor New Trial.
Nebraska law permits a party to request a new trial when there has been "the
vrxdict, report, or decision is not sustained by sufficient evidence or is contrary to law,"
Nes. REv. Srar. $24-1142(6), or when there was an "error of law occurring at the trial
and excepted to by the parry making the application." NEB. Rsv. SrA.r. $25-1142(8).
After the entry of the trial court's decision, Young filed a Motion for New Trial (T49),
which was denied by the trial court (T51).
In re guardianship ofNeveah J. - A-14-000694
Briefof Appellant-Page l3 of l5
o
)
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
O
o
o
o
o
o
o
o
O
o
o
o
o
o
o
o
o
a
o
o
o
o
o
O
Based on the arguments above, the trial court's decision not
to terminate
the
guardianship and to find Prentice to be in loco parenrls with Neveah was contrary to law
(pursuant to Nee. Rsv. Srer. $25-1142(6)) and was an error of law (pursuant to Nrs.
Rev. Srnr. $25-1 L42(8)). Accordingly, the trial court was in error for denying Young's
Motion for New Trial.
CONCLUSION
Based on the arguments above, this Court should find as follows:
1)
Based on the trial court's f,rnding that Prentice failed to meet her burden to
prove by clear and convincing evidence that Yorrng was either unfit or had forfeited his
parental righs, this Court should reverse the trial court and remand the proceeding with
directions to dismiss the guardianship.
2)
Based on the trial court's frnding that Prentice did not perform all of the
duties incident to a parental relationship, this Court should reverse the trial court and
remand the proceeding with directions to find that Prentice is not in loco parentis
with
Neveah.
3)
This Court should find that the Motion for New Trial should have been
granted, given that the trial court's decision was contary.
an error in law.
Respectfrrlly submiued on October 14,20L4,
a
YOUNG, Biological Father
By:
R. Runge
Rturge Law Office LLC
4060 Vinton Sffeet, Suite 103
Omaha NE 68105
(402)390-es77
ATTORNEY FOR FATHER
In re guardiawhip of Neveah J.
- 4-14-000694
Brief offupellant-Page 14 of 15
o
o
a
o
O
a
:
O
o
a
a
o
O
-
a
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
O
o
o
a
O
o
o
o
o
O
O
o
CERTIFICATE OF SERVICE
The above-signed hereby certifies that a true and accurate copy of the above
docunent was sent by United States mail, postage prepaid, on October 14,2014, to the
rorowrng:
TracyHightower-Henne
t 625 Farnam Street, Suite 830
Omatra,
NE
68102
Cassidy Chap_man
Hf,If,r".1,?ffi"Suite212
Inre guardianship ofNeveahJ.-A-14-000694
Brief ofAppellant-Page 15 of 15