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02/19/2019 09:06 AM CST




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                                Nebraska Court of A ppeals A dvance Sheets
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                                   STATE ON BEHALF OF LILLIANA L. v. HUGO C.
                                             Cite as 26 Neb. App. 923




                              State      of   Nebraska     on behalf of Lilliana L.,
                            a minor child, appellee, v.          Hugo C., appellant,
                                        and   Theresa   L., intervenor-appellee.
                                                        ___ N.W.2d ___

                                          Filed February 12, 2019.   No. A-17-1316.

                1.	 Child Custody: Appeal and Error. Child custody determinations are
                     matters initially entrusted to the discretion of the trial court, and
                     although reviewed de novo on the record, the trial court’s determination
                     will normally be affirmed absent an abuse of discretion.
                2.	 Parent and Child: Words and Phrases. 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 paren-
                     tal relationship, without going through the formalities necessary to a
                     legal adoption.
                 3.	 ____: ____. The term “in loco parentis” refers to a person who has fully
                     put himself or herself in the situation of a lawful parent by assuming
                     all the obligations incident to the parental relationship and who actually
                     discharges those obligations.
                4.	 Parent and Child: Intent. The assumption of the parental relationship
                     is largely a question of intention which should not lightly or hastily
                     be inferred.
                5.	 Parent and Child. The parental relationship should be found to exist
                     only if the facts and circumstances show that the individual means to
                     take the place of the lawful father or mother not only in providing sup-
                     port but also with reference to the natural parent’s office of educating
                     and instructing and caring for the general welfare of the child.
                6.	 Appeal and Error. Appellate courts will not consider issues on appeal
                     that were not presented to or passed upon by the trial court.
                7.	 Child Custody: Parental Rights. The parental preference doctrine pro-
                     vides that in the absence of a statutory provision otherwise, in a child
                     custody controversy between a biological or adoptive parent and one
                     who is neither a biological nor an adoptive parent of the child involved
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               STATE ON BEHALF OF LILLIANA L. v. HUGO C.
                         Cite as 26 Neb. App. 923

      in the controversy, a fit biological or adoptive parent has a superior right
      to custody of the child.
 8.	 ____: ____. The right of a parent to the custody of his or her minor
      child is not lightly to be set aside in favor of more distant relatives or
      unrelated parties, and the courts may not deprive a parent of such cus-
      tody unless he or she is shown to be unfit or to have forfeited his or her
      superior right to such custody.
  9.	 ____: ____. The best interests of the child are important in resolving a
      child custody dispute, but a parent’s superior right to custody must be
      given its due regard, and absent its negation, a parent retains the right to
      custody over his or her child.
10.	 Child Custody: Parental Rights: Presumptions. Parental preference
      creates a presumption in favor of parental custody.
11.	 Child Custody: Parental Rights: Proof. The parental preference doc-
      trine, by definition, is a preference, and it will be applied to a child
      custody determination unless it is shown that the lawful parent is unfit
      or has forfeited his or her superior right or the preference is negated by
      a demonstration that the best interests of the child lie elsewhere.
12.	 Child Custody: Words and Phrases. Parental unfitness means a per-
      sonal deficiency or incapacity which has prevented, or will probably
      prevent, performance of a reasonable parental obligation in child rear-
      ing which has caused, or probably will result in, detriment to a child’s
      well-being.
13.	 Child Custody. Evidence of unfitness should be focused upon a par-
      ent’s ability to care for a child, and not any other moral failings a parent
      may have.
14.	 ____. Evidence of unfitness should be focused upon a parent’s present
      ability to care for a child, and evidence of a parent’s past failings is
      pertinent only insofar as it suggests present or future faults.
15.	 Child Custody: Parental Rights. The quantum of proof necessary to
      prove unfitness is analogous to the proof necessary to terminate paren-
      tal rights.
16.	 ____: ____. While preference must be given to a biological or adoptive
      parent’s superior right to custody where the parent is not unfit and has
      not forfeited his or her parental rights, a court also considers the child’s
      best interests in making its custody determination.

  Appeal from the District Court for Burt County: John E.
Samson, Judge. Affirmed.

   Ryan D. Caldwell, of Caldwell Law, L.L.C., for appellant.
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            STATE ON BEHALF OF LILLIANA L. v. HUGO C.
                      Cite as 26 Neb. App. 923

   Michael J. Tasset and Denise E. Frost, of Johnson & Mock,
P.C., L.L.O., for intervenor-appellee.
  Pirtle, Bishop, and A rterburn, Judges.
  Pirtle, Judge.
                      INTRODUCTION
  Hugo C., the biological father of Lilliana L. (Lilli), born in
April 2012, appeals from an order of the district court for Burt
County awarding custody of Lilli to Theresa L., Lilli’s mater-
nal aunt. Hugo challenges the court’s determining that Theresa
had standing to seek custody based on the in loco parentis
doctrine, allowing Theresa to intervene when she had “unclean
hands,” and awarding her custody of Lilli. Based on the rea-
sons that follow, we affirm.
                         BACKGROUND
   This case is the third case filed regarding custody and sup-
port for Lilli. The first case was filed by the State on January
23, 2014, against Hugo for child support because Melanie L.,
Lilli’s biological mother, had applied for medical assistance
benefits for Lilli. Hugo denied that he was Lilli’s father at
that time. Court-ordered genetic testing was ordered, and on
August 4, the results showed that Hugo was Lilli’s biologi-
cal father.
   The second case was filed by Melanie in September 2014.
She filed a separate action for sole legal and physical custody
of Lilli. The first case was dismissed as a result. Melanie then
dismissed her case on August 13, 2015, the same day trial was
to begin.
   The third and present case was commenced on August 27,
2015, when the State filed a second complaint to establish sup-
port against Hugo. Hugo was ordered to pay child support in
March 2016. On March 16, Hugo filed a “Petition for Custody”
of Lilli. Melanie died suddenly 2 months later on June 12. The
cause of her death is not clear from the record. Theresa testi-
fied that Melanie was born with a heart defect and was on
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            STATE ON BEHALF OF LILLIANA L. v. HUGO C.
                      Cite as 26 Neb. App. 923

heart medication at the time of her death. One of Melanie’s
brothers testified that based on the autopsy, the cause of her
death was inconclusive. Following Melanie’s death, Lilli began
living with Theresa at her home in Colorado.
   On August 29, 2016, after learning that Lilli was living in
Colorado with Theresa, Hugo filed a motion for “Emergency
Custody Determination” seeking temporary custody of Lilli.
Theresa filed a complaint to intervene and a motion for tem-
porary custody. The trial court sustained Theresa’s motion to
intervene. The court overruled Hugo’s motion for emergency
custody and allowed Lilli to continue living with Theresa. The
court also ordered therapeutic counseling sessions and parent-
ing sessions between Hugo and Lilli. Hugo met Lilli for the
first time in September 2016, when she was 41⁄2 years old,
which was 2 years after he knew that he was Lilli’s biologi-
cal father.
   On May 12, 2017, Theresa filed an answer and cross-claim
alleging that Hugo was not a fit and proper person to have cus-
tody of Lilli and that an award of custody to Hugo was not in
Lilli’s best interests. Theresa sought legal and physical custody
of Lilli and permission for Lilli to reside in Colorado.
   Trial was held in July and September 2017. The evidence
showed that after Melanie died, her family discussed who
would be in the best position to care for Lilli. The family
decided that Lilli should live with Theresa. Theresa testified
that Hugo was never considered as a potential caregiver for
Lilli because he had never met her. Theresa testified that nei-
ther she nor her family tried to hide the fact from anyone that
Lilli was going to live with Theresa in Colorado. Theresa took
Lilli to her home in Colorado on July 1, 2016, where she con-
tinued to live at the time of trial.
   There was evidence that Theresa had a relationship with
Lilli before Melanie died. After moving to Colorado in 2013,
Theresa made multiple trips per year to Nebraska to visit
family, which trips would include spending time with Lilli.
Theresa testified that Lilli knew who she was when she came
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            STATE ON BEHALF OF LILLIANA L. v. HUGO C.
                      Cite as 26 Neb. App. 923

to Nebraska for Melanie’s funeral. There was also testimony
by Theresa and her two brothers that Melanie wanted Theresa
to care for Lilli if Melanie ever became unable to care
for her.
   When Theresa returned to Colorado with Lilli, Theresa’s
main focus was to get Lilli to a doctor. Lilli suffers from
chronic gastrointestinal issues, and at that time, Lilli was
bloated, had dark circles under her eyes, and was experienc-
ing severe digestive problems. Theresa testified that she could
not get Lilli in to see a doctor without Hugo’s consent to
obtain medical treatment for Lilli. Theresa called Hugo and
told him she was caring for Lilli and needed his consent for
medical treatment. Hugo did not express concern that Lilli
was in Colorado with Theresa. The next contact Theresa had
with Hugo was in early August 2016, when Hugo called and
accused Theresa of kidnapping Lilli and wanted her to drop
off Lilli in a parking lot in Omaha, Nebraska, so he could pick
her up.
   There was much evidence presented in regard to Hugo’s
past, including his criminal history. The evidence showed
that Hugo was charged with a felony drug crime in 2004 as a
result of law enforcement officers’ seizing methamphetamine,
cocaine, and marijuana from his house. He was allowed to par-
ticipate in a drug court program, which he successfully com-
pleted, and the charge was dismissed. He was also investigated
for dealing drugs in 2011, but no charges were filed. In 2007,
Hugo pled guilty to assaulting his son, who was 7 years old
at the time, as a result of “spank[ing] him with a belt” which
left bruises on his buttocks and thighs. Hugo also had multiple
convictions for driving offenses, including driving with a sus-
pended license and reckless driving.
   Hugo had been married and divorced four times and three of
his ex-wives had sought and received domestic violence pro-
tection orders against him at various times. Hugo testified that
he thought he and Melanie started dating in 2010 and that she
moved in with him 8 or 9 months later. At some point, Melanie
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            STATE ON BEHALF OF LILLIANA L. v. HUGO C.
                      Cite as 26 Neb. App. 923

moved out, but she and Hugo continued to see each other on
occasion. Hugo’s last contact with Melanie was on August 23,
2011, when she sent him an email stating that she was preg-
nant and claiming that he was not the baby’s father.
   Dr. Carol Lay, a psychologist who began having therapy
sessions with Lilli in September 2016, testified that Lilli first
met Hugo through “Skype” in October 2016 and that in-person
visits started in November 2016. She testified that she observed
a marked shift in Lilli’s demeanor and play themes when she
began having in-person contact with Hugo: Lilli became more
aggressive, fearful, angry, and resentful. She testified that Lilli
was “attached” to Theresa and Theresa’s fiance and that Lilli
did not know how to “process” Hugo’s appearance in her life.
Lay testified that Lilli was concerned that Hugo would “take
her away” from Theresa and Theresa’s fiance.
   In June 2017, Hugo had an 8-hour visit on two consecutive
days, the longest visits that had taken place. Lay testified that
after these visits, Lilli “was more agitated and . . . disorga-
nized” and Lilli feared that she was going to lose Theresa and
Theresa’s fiance, as well as her home.
   According to Lay, if Lilli’s bond with Theresa and Theresa’s
fiance is broken, Lilli will be “exceedingly vulnerable to physi-
cal and mental health problems in adulthood, not to mention a
compromised development in many areas of [her] life; learn-
ing, behaviors, school achievement, at not just an emotional
level, but also at a biological level.” She further testified that
based on Lilli’s exposure to adverse childhood events, she is “a
highly vulnerable child in terms of trusting [others], in terms
of believing that the world is a safe place and that she will be
taken care of and protected.” Lilli’s anxiety and exposure to
adverse childhood events had already caused developmental
delay in her fine motor skills.
   Lay testified that if Lilli is going to develop “a solid rela-
tionship [with Hugo] based on attachment,” it needs to pro­
gress at Lilli’s rate, and not based upon the wishes or demands
of adults. She testified that “days-long overnight” parenting
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            STATE ON BEHALF OF LILLIANA L. v. HUGO C.
                      Cite as 26 Neb. App. 923

time with Hugo was “risky” at that time and could be damag-
ing to Lilli, because Lilli is afraid that Hugo will be angry
with her if she misses Theresa, and Lay did not believe that
Hugo had the capacity to comfort Lilli if she is in distress and
she is still somewhat fearful at times. Lay testified that main-
taining this state of fear increases anxiety in a way that is not
good for Lilli emotionally or physically. Lay further testified
that awarding Hugo custody at the time of trial would trau-
matize Lilli and was not in her best interests. She stated that
Lilli was “a vulnerable child who should be protected from
being retraumatized.”
   At the time of trial, Hugo had never contacted Lay to ask
about Lilli’s progress in therapy or to ask what he could do to
help Lilli. Lay found this concerning.
   Terry James-Banks, a psychotherapist, supervised several
visits between Lilli and Hugo in 2017. She testified that it was
not in Lilli’s best interests to have overnight visits with Hugo
at that time. Her opinion was based on the fact that at the end
of the 8-hour parenting time she observed in June 2017, Lilli
was ready and anxious to go back to Theresa’s home. Lilli also
showed insecurity in her relationship with Hugo. James-Banks
stated that building a relationship with Lilli would take time
and patience and that forcing her into overnight visits before
she was ready would increase her distress and her tendency
to resist it. James-Banks testified that Lilli is very vulnerable
and that disruption of “a second primary attachment relation-
ship” would create a sense of loss, further grief, and potential
mental health issues. She further testified that another adverse
childhood experience could cause Lilli to suffer permanent or
long-term emotional damage.
   Following trial, the trial court entered an order on November
22, 2017. The trial court stated that it did not find Hugo’s testi-
mony credible, because there were “numerous occasions where
[he] minimized, could not remember, or his in-court testimony
was contradicted by his previous statements or other credible
witnesses.” The trial court awarded Theresa sole legal and
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            STATE ON BEHALF OF LILLIANA L. v. HUGO C.
                      Cite as 26 Neb. App. 923

physical custody of Lilli, subject to parenting time with Hugo,
and allowed her to permanently remove Lilli to Colorado. The
court found that it was in Lilli’s best interests to remain in
Theresa’s sole legal and physical custody notwithstanding the
parental preference principle and that “it would be harmful to
[Lilli’s] physical and mental health if the legal custody and
possession of the minor child is awarded to [Hugo].” The trial
court also established a parenting plan awarding Hugo parent-
ing time with Lilli. Hugo does not challenge the terms of the
parenting plan.
                  ASSIGNMENTS OF ERROR
   Hugo assigns that the trial court erred in (1) finding that
Theresa stood in loco parentis and had standing to seek custody
of Lilli, (2) allowing Theresa to intervene in the action despite
evidence of her “unclean hands,” and (3) awarding Theresa
custody.
                 STANDARD OF REVIEW
   [1] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.
Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016).
                           ANALYSIS
In Loco Parentis.
   Hugo first argues the trial court erred in finding that Theresa
stood in loco parentis to Lilli and that therefore, she had stand-
ing to bring an action for custody of Lilli.
   [2] 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. Weinand v. Weinand, 260 Neb. 146, 616
N.W.2d 1 (2000), disapproved on other grounds, Windham v.
Griffin, supra.
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            STATE ON BEHALF OF LILLIANA L. v. HUGO C.
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   [3-5] The term “in loco parentis” refers to a person who has
fully put himself or herself in the situation of a lawful parent by
assuming all the obligations incident to the parental relation-
ship and who actually discharges those obligations. Weinand
v. Weinand, supra. The assumption of the parental relationship
is largely a question of intention which should not lightly or
hastily be inferred. Id. The parental relationship should be
found to exist only if the facts and circumstances show that
the individual means to take the place of the lawful father or
mother not only in providing support but also with reference
to the natural parent’s office of educating and instructing and
caring for the general welfare of the child. See id.
   The Parenting Act, Neb. Rev. Stat. § 43-2920 et seq.
(Reissue 2016 & Cum. Supp. 2018) defines parenting func-
tions. Specifically, § 43-2922 states:
         For purposes of the Parenting Act:
         ....
         (17) Parenting functions mean those aspects of the
      relationship in which a parent or person in the parenting
      role makes fundamental decisions and performs funda-
      mental functions necessary for the care and development
      of a child. Parenting functions include, but are not lim-
      ited to:
         (a) Maintaining a safe, stable, consistent, and nurturing
      relationship with the child;
         (b) Attending to the ongoing developmental needs of
      the child, including feeding, clothing, physical care and
      grooming, health and medical needs, emotional stability,
      supervision, and appropriate conflict resolution skills and
      engaging in other activities appropriate to the healthy
      development of the child within the social and economic
      circumstances of the family;
         (c) Attending to adequate education for the child,
      including remedial or other special education essential to
      the best interests of the child;
         ....
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            STATE ON BEHALF OF LILLIANA L. v. HUGO C.
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         (f) Assisting the child in developing skills to main-
      tain safe, positive, and appropriate interpersonal relation-
      ships; and
         (g) Exercising appropriate support for social, academic,
      athletic, or other special interests and abilities of the
      child within the social and economic circumstances of
      the family.
   The evidence established that Theresa fulfilled all of these
functions for Lilli after Melanie died. Theresa brought Lilli
into her home a few weeks after Melanie’s death in June 2016,
and Theresa continued to care for Lilli at the time of trial, 1
year later. She has provided Lilli with a nurturing and stable
living environment. Theresa had been caring for Lilli’s day-
to-day physical needs, was getting her the medical care she
needs and having her follow a restricted diet due to her gas-
trointestinal problems, and meeting her emotional needs. She
also found a therapist for Lilli to help her deal with Melanie’s
death. Theresa and Lilli have a close relationship, and Lilli
has an “attachment bond” with Theresa. Further, Theresa is a
maternal aunt to Lilli and had a familial relationship with her
prior to the death of Melanie. We conclude that the trial court
did not err in finding that Theresa stood in loco parentis to Lilli
and had standing to seek custody of Lilli.

Unclean Hands.
   Hugo next assigns that the court erred in allowing Theresa
to intervene in the action despite evidence of her “unclean
hands.” He alleges that the doctrine of unclean hands applies
because Theresa removed Lilli from her home and family in
Nebraska and failed to provide adequate notice to the court
or Hugo.
   [6] This is the first time Hugo has raised an “unclean
hands” argument; the argument was not raised to the trial
court. Appellate courts will not consider issues on appeal
that were not presented to or passed upon by the trial court.
In re Interest of Paxton H., 300 Neb. 446, 915 N.W.2d 45
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(2018). Accordingly, we do not address this assignment of
error further.

Awarding Theresa Custody.
   Lastly, Hugo assigns that the trial court erred in awarding
Theresa custody of Lilli. He specifically takes issue with the
court’s finding that the presumption of parental preference was
negated based on “‘some showing of unfitness’” and the best
interests of Lilli. Brief for appellant at 14.
   [7-10] The parental preference doctrine provides that in the
absence of a statutory provision otherwise, in a child custody
controversy between a biological or adoptive parent and one
who is neither a biological nor an adoptive parent of the child
involved in the controversy, a fit biological or adoptive par-
ent has a superior right to custody of the child. Windham v.
Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016). The right of a
parent to the custody of his or her minor child is not lightly to
be set aside in favor of more distant relatives or unrelated par-
ties, and the courts may not deprive a parent of such custody
unless he or she is shown to be unfit or to have forfeited his or
her superior right to such custody. Id. The Nebraska Supreme
Court has acknowledged the importance of the best interests
of the child in resolving a child custody dispute, but “‘a par-
ent’s superior right to custody must be given its due regard,
and absent its negation, a parent retains the right to custody
over his or her child.’” Id. at 287, 887 N.W.2d at 716, quoting
In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238
(2004). The Supreme Court has referred to parental preference
as a presumption in favor of parental custody. Windham v.
Griffin, supra.
   [11] The parental preference doctrine, by definition, is a
preference, and it will be applied to a child custody determi-
nation unless it is shown that the lawful parent is unfit or has
forfeited his or her superior right or the preference is negated
by a demonstration that the best interests of the child lie else-
where. Id.
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   [12-15] In support of his assignment that the trial court erred
in awarding Theresa custody, Hugo first claims that the trial
court impermissibly “broaden[ed] the standard” of unfitness
previously stated by the Supreme Court. Brief for appellant at
23. Parental unfitness means a personal deficiency or incapac-
ity which has prevented, or will probably prevent, performance
of a reasonable parental obligation in child rearing which has
caused, or probably will result in, detriment to a child’s well-
being. In re Interest of Kendra M. et al., 283 Neb. 1014, 814
N.W.2d 747 (2012). 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. See In re Interest of Lakota
Z. & Jacob H., 282 Neb. 584, 804 N.W.2d 174 (2011). Further,
evidence of unfitness should be focused upon a parent’s pres-
ent ability to care for a child, and evidence of a parent’s past
failings is pertinent only insofar as it suggests present or future
faults. Id. The Supreme Court has analogized the quantum of
proof necessary to prove unfitness to the proof necessary to
terminate parental rights. Id.
   The trial court found that some of Hugo’s past behavior and
his “minimization and inconsistent testimony” was concerning,
but that it could not conclude that Theresa met her burden of
proof that Hugo was unfit to parent Lilli. The trial court went
on to note that the U.S. Supreme Court has stated:
      “We have little doubt that the Due Process Clause would
      be offended if a State were to attempt to force the breakup
      of a natural family, over the objections of the parents and
      their children, without some showing of unfitness and
      for the sole reason that to do so was thought to be in the
      children’s best interest.”
Quoting Quilloin v. Walcott, 434 U.S. 246, 98 S. Ct. 549,
54 L. Ed. 2d 511 (1978) (emphasis supplied). The trial court
then stated that “if the proper standard is ‘some showing
of unfitness,’ then [Theresa had] met her burden of proof.”
Hugo contends that based on this statement, the trial court
used a standard different from that set out by the U.S.
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Supreme Court and erred in finding there was any showing
of unfitness.
   We determine that the trial court simply noted that there was
some evidence of unfitness based on Hugo’s past and his tes-
timony at trial, but ultimately concluded that under Nebraska
case law, Theresa had not proved that Hugo was unfit to the
extent necessary to negate the preference given to Hugo as
Lilli’s lawful parent. Further, if the trial court had concluded
that “‘some showing of unfitness’” was sufficient to defeat
the parental preference, it would have found it unnecessary
to address whether Lilli’s best interests defeated the parental
preference doctrine. It is clear from the trial court’s order that
the court based its decision to award Theresa custody on Lilli’s
best interests, and not on a finding that Hugo was unfit or had
forfeited his rights.
   In regard to best interests, the court found that it was in
Lilli’s best interests to remain in Theresa’s sole legal and phys-
ical custody notwithstanding the parental preference principal
and that “it would be harmful to [Lilli’s] physical and mental
health if the legal custody and possession of the minor child is
awarded to [Hugo].” Hugo takes issue with this finding.
   [16] While preference must be given to a biological or adop-
tive parent’s superior right to custody where the parent is not
unfit and has not forfeited his or her parental rights, a court
also considers the child’s best interests in making its custody
determination. Windham v. Griffin, 295 Neb. 279, 887 N.W.2d
710 (2016), citing In re Guardianship of D.J., 268 Neb. 239,
682 N.W.2d 238 (2004).
   As previously stated, the parental preference doctrine, by
definition, is a preference, and it will be applied to a child
custody determination unless it is shown that the lawful parent
is unfit or has forfeited his or her superior right or the prefer-
ence is negated by a demonstration that the best interests of the
child lie elsewhere. Windham v. Griffin, supra.
   The evidence showed that Hugo did not have any rela-
tionship with Lilli before Melanie died. He met Lilli for the
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first time in September 2016, when Lilli was 41⁄2 years old,
which was 2 years after he knew that he was Lilli’s biological
father. Theresa, in contrast, had a relationship with Lilli before
Melanie died. Lilli started living with Theresa in July 2016,
and she continued to live with her at the time of trial. Lilli has
an “attachment bond” with Theresa, and there was evidence
that breaking that bond would be detrimental to Lilli.
   According to Lay, if Lilli’s bond with Theresa and Theresa’s
fiance is broken, Lilli would be vulnerable to physical and
mental health problems in adulthood, as well as compro-
mised development in many areas of her life on emotional
and physical levels. Lay testified that if Lilli is going to
develop “a solid relationship [with Hugo] based on attach-
ment,” it needs to progress at Lilli’s rate, and not based upon
the wishes or demands of adults. Lay further testified that
awarding Hugo custody at the time of trial would traumatize
Lilli and was not in her best interests. Lay stated that Lilli
was “a vulnerable child who should be protected from being
retraumatized.”
   James-Banks testified that at the end of the 8-hour parent-
ing time she observed, Lilli was ready and anxious to go back
to Theresa’s home. She also testified that Lilli was insecure in
her relationship with Hugo. James-Banks stated that building
a relationship with Lilli would take time and patience and that
forcing her into overnight visits before she was ready would
increase her distress and her tendency to resist it. James-Banks
testified that Lilli was very vulnerable and that disruption of
“a second primary attachment relationship” would create a
sense of loss, further grief, and potential mental health issues.
She further testified that another adverse childhood experi-
ence could cause Lilli to suffer permanent or long-term emo-
tional damage.
   While neither we nor the district court found Hugo to be
unfit, it is nonetheless appropriate to consider, in conjunction
with this testimony, Hugo’s prior conviction for child abuse
and his history of having protection orders entered against him
                              - 937 -
          Nebraska Court of A ppeals A dvance Sheets
               26 Nebraska A ppellate R eports
            STATE ON BEHALF OF LILLIANA L. v. HUGO C.
                      Cite as 26 Neb. App. 923

by former spouses. This evidence, coupled with Hugo’s past
lack of interest in maintaining a relationship with Lilli, gives us
concern that a grant of custody to Hugo would place Lilli at an
even higher risk for experiencing the type of adverse childhood
experience that the mental health providers fear would cause
permanent or long-term emotional damage.
   We conclude that the trial court did not err in finding that
the parental preference in favor of Hugo was negated by Lilli’s
best interests and in awarding Theresa custody. We further
note that the trial court’s award of custody to Theresa does
not terminate Hugo’s parental rights to Lilli. The trial court
implemented a parenting plan awarding Hugo parenting time
with Lilli.
                       CONCLUSION
   We conclude that the trial court did not err in finding that
Theresa had standing to seek custody based on the in loco
parentis doctrine and did not err in awarding Theresa custody
of Lilli.
                                                    A ffirmed.
