                          Nebraska Advance Sheets
	                     IN RE GUARDIANSHIP OF BENJAMIN E.	693
	                              Cite as 289 Neb. 693

                    In   re   Guardianship       of   Benjamin E.,
                     an alleged incapacitated person.
                              Rhonda P., appellant, v.
                               Benjamin E., appellee.
                                     ___ N.W.2d ___

                       Filed December 12, 2014.       No. S-14-030.

 1.	 Guardians and Conservators: Appeal and Error. An appellate court reviews
      guardianship and conservatorship proceedings for error appearing on the record
      made in the county court.
 2.	 Judgments: Appeal and Error. When reviewing a judgment for errors appearing
      on the record, an appellate court’s inquiry is whether the decision conforms to
      the law, is supported by competent evidence, and is neither arbitrary, capricious,
      nor unreasonable.
 3.	 Attorney and Client. A lawyer shall abide by a client’s decisions concerning the
      objectives of representation and shall consult with the client as to the means by
      which they are to be pursued.
  4.	 ____. A lawyer may take such action on behalf of the client as is impliedly autho-
      rized to carry out the representation.
 5.	 Attorney and Client: Mental Competency. In representing a client with dimin-
      ished capacity, a lawyer may take reasonably necessary protective action if the
      lawyer believes that the client is at risk of substantial physical, financial, or other
      harm unless action is taken and the client cannot adequately act in his or her
      own interest.
 6.	 Words and Phrases. A decision is arbitrary when it is made in disregard of the
      facts or circumstances and without some basis which would lead a reasonable
      person to the same conclusion.
  7.	 ____. A capricious decision is one guided by fancy rather than by judgment or
      settled purpose.
 8.	 Decedents’ Estates: Guardians and Conservators: Legislature: Intent. Neb.
      Rev. Stat. § 30-2627(b)(4) (Reissue 2008) evidences a legislative preference that
      a parent of an incapacitated person be appointed guardian over a person with
      no priority.
 9.	 Evidence: Records: Appeal and Error. A bill of exceptions is the only vehicle
      for bringing evidence before an appellate court; evidence which is not made a
      part of the bill of exceptions may not be considered.

  Appeal from the County Court for Lancaster County:
Thomas W. Fox, Judge. Reversed and remanded for further
proceedings.

  Steffanie Garner Kotik, of Kotik & McClure Law, for
appellant.
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  Chris Blomenberg, and Michael Milone, Senior Certified
Law Student, of McHenry, Haszard, Roth, Hupp, Burkholder
& Blomenberg, P.C., L.L.O., for appellee.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
      Cassel, J.
                        INTRODUCTION
   Rhonda P., the mother of an incapacitated adult, appeals
from an order of the county court appointing an unrelated
individual as the adult’s guardian. Although we find no merit
to her contention that the incapacitated adult’s court-appointed
attorney committed professional misconduct, we agree that the
county court erred in passing over her statutory priority for
appointment.1 Without specific findings, any meaningful expla-
nation, or a record establishing any apparent basis for deviating
from the statutory priority, the appointment was arbitrary and
capricious. We reverse the judgment and remand the cause for
further proceedings.
                       BACKGROUND
                     Incapacitated Adult
   Benjamin E. is a 22-year-old incapacitated adult. He was
born with a genetic condition, apparently relating to his
chromosomes, and is unable to hear or speak. According to
Rhonda, he is in need of “24-hour watch.” At the guardian-
ship hearing, the parties stipulated that Benjamin was in need
of a guardian.
                         P etition
                               Appointment
                                      for
                            Guardian
                                 of
   On July 1, 2013, Rhonda filed a petition for the appoint-
ment of a guardian for Benjamin. In the petition, she alleged
that an emergency existed because Benjamin would turn 21
years old in mid-July and she feared he would leave his group
home without a guardianship in place. Rhonda nominated

 1	
      See Neb. Rev. Stat. § 30-2627 (Reissue 2008).
                   Nebraska Advance Sheets
	              IN RE GUARDIANSHIP OF BENJAMIN E.	695
	                       Cite as 289 Neb. 693

herself as guardian. She was Benjamin’s sole surviving parent,
because his father had passed away in November 2006.
   The county court appointed Douglas Hand to act as guard-
ian ad litem for Benjamin. Hand recommended that the court
appoint an attorney to represent Benjamin’s interests. Although
no order of appointment appears within the record, an attorney
represented Benjamin at the guardianship hearing.

                    Evidence at Guardianship
                             Hearing
   At the guardianship hearing, much of the testimony con-
cerned Benjamin’s former placement in the home of Sharmon
Shireman. Benjamin was placed in Shireman’s home when he
was 16 years old and remained in her care for 5 years. He was
removed from Shireman’s home in July 2013. At the time of
Benjamin’s removal, Shireman was an extended family home
provider through Region V Services (Region V).
   Rhonda testified that Benjamin’s removal was prompted
by an allegation of abuse made by a friend of Shireman’s.
Specifically, the friend alleged that Benjamin was being left in
his “pull-up” for 12 or 24 hours at a time. However, Rhonda
refuted the allegation. She explained that she had unlimited
access to Shireman’s home and that she never observed any
concerns. And Rhonda stated that if Benjamin was left in his
pull-up for extended periods of time, she would have noticed
because his skin would have turned red and raw. Additionally,
she testified that she was informed by Region V that the allega-
tion was unfounded.
   Leslie Walters, Benjamin’s community support coordinator
with Region V, testified that the allegation against Shireman
was made by Shireman’s daughter and her daughter’s “life
partner.” Walters was not permitted to testify as to the
specific allegation of abuse. Benjamin was removed from
Shireman’s care and placed into a group home with an
available bedroom. Region V terminated its contract with
Shireman the next day.
   Walters further testified as to other concerns regarding
Shireman’s care of Benjamin. During Benjamin’s placement
with Shireman, she relocated to four different locations.
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And it was always unclear to Walters who was residing in
Shireman’s home. Shireman’s son was in and out of her home
at various times. And a grandson resided with Shireman for
a period of time when she was living in a mobile home.
Additionally, Walters recalled a girl living with Shireman that
she claimed to be caring for. Walters further suggested that
criminal charges had been filed against Shireman or someone
residing in her home, although Walters and Region V had not
been made aware of the charges.
   Walters was also asked if she had any concern whether
Shireman had provided adequate clothing for Benjamin.
Walters replied that Benjamin was always appropriately
dressed for the weather, but that Shireman would complain
of not receiving sufficient funds to buy clothing or to pay for
Benjamin’s room and board. Walters explained that funds for
Benjamin’s clothing and room and board came from his Social
Security benefits, of which Rhonda was the payee. And since
Benjamin began residing in the group home, Region V had
requested additional clothing from Rhonda, which it had not
yet received.
   However, Walters’ knowledge of Rhonda and Benjamin’s
relationship was limited. She testified that she had observed
Rhonda and Benjamin interact only a couple of times at meet-
ings. Walters recalled one particular meeting during which
Rhonda attempted to encourage Benjamin to stay on task
and the two hugged. Regarding her own relationship with
Rhonda, Walters described their communication as tense and
limited. However, Walters affirmed that an ongoing relation-
ship with Rhonda could be maintained if Benjamin remained
in Region V’s care.
   As to Benjamin’s progress in the group home, Walters
testified that she had observed improvement in several areas.
Benjamin had experienced success with toilet training and
bathing and had developed a strong connection with one of his
roommates. Walters summarized his improvement by stating,
“He’s just done a lot of things that I guess I wasn’t aware that
he had done ever before.” Walters opined that a group home
setting was appropriate for Benjamin and recommended that he
continue in such a setting.
                   Nebraska Advance Sheets
	              IN RE GUARDIANSHIP OF BENJAMIN E.	697
	                       Cite as 289 Neb. 693

    Rhonda’s testimony, however, was less favorable of
Region V and Benjamin’s experience in the group home.
Rhonda testified that Benjamin had sustained an injury to
his toe, rendering it “about ready to fall off,” and numer-
ous “scrapes” to his knees. She iterated that she had never
received as many accident reports within the 5 years that
Benjamin lived with Shireman as she had received recently.
She further claimed that Region V failed to undertake required
monthly “book works and stuff” while Benjamin lived with
Shireman and that Walters was rude to her, would not call
her, and contacted her only through text messages sent late
at night.
    Rhonda testified that based upon her concerns, she planned
to remove Benjamin from Region V’s care if appointed guard-
ian. She stated that she would maintain his placement in a
group home, but with a service provider other than Region V.
However, during cross-examination, Rhonda was asked if she
would return Benjamin to Shireman’s care if such an option
were available. Rhonda replied: “If [Shireman] passed one of
the other [service providers] and they thought she was good
enough, yes.” But she later testified that if the service provider
believed a group home was better for Benjamin, she would
maintain him in such a setting.
    Rhonda was further asked if she had ever discussed return-
ing Benjamin to Shireman’s care with Benjamin’s service coor-
dinator with the Department of Health and Human Services.
Rhonda confirmed that such a discussion had taken place.
However, she claimed that the service coordinator informed
her that there was no reason Shireman could not be approved
to care for Benjamin.
    As to Rhonda’s fitness to be Benjamin’s guardian, she tes-
tified that she would be the best guardian because she had
been “his voice since the day he was born.” She was familiar
with his moods and had taken care of him since birth. She
also “made sure nothing’s ever happened to him,” and she
was there for him if something went wrong. And in her rebut-
tal testimony, she affirmed that she understood the concerns
regarding Shireman and that she would take those concerns
into consideration. She further stated that she would work with
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698	289 NEBRASKA REPORTS



the group of people providing care for Benjamin and consider
their concerns as well.
    Kendra Augustine was called to testify by Benjamin’s
appointed attorney and affirmed that she was willing to serve
as Benjamin’s guardian. Augustine explained that she was
familiar with Benjamin because she had been employed as
his support worker with Region V for 5 years, ending in
2009. During her employment with Region V, Augustine
had frequent contact with Benjamin. She was with him in
the morning Monday through Friday and picked him up
from school three to four times per week. She also provided
respite care one weekend per month, which lasted from Friday
through Monday.
    As to Rhonda’s interaction with Benjamin, Augustine tes-
tified that the nature of the interaction depended upon the
day. Some days there would be “really good interaction,” and
other days, Rhonda would be “stressed.” Augustine described
that Rhonda had “a lot going on” with her other children
and that “she kind of would do her own thing,” knowing
that Benjamin was with Augustine. When asked whether she
had ever been concerned for Benjamin’s safety with Rhonda,
Augustine responded that there were two occasions when
Benjamin’s shoes needed to be refitted and that it seemed to
take Rhonda “a very long time” to get Benjamin into the neces-
sary appointments.
    Augustine also described one occasion when she went to
Shireman’s home in January 2009. Augustine observed that
there were several people and two pit bull dogs in the home. She
further observed that there were not many items in Benjamin’s
bedroom, but that he had a bed, a dresser, and clothing. When
asked whether she saw any concerns in Shireman’s home,
Augustine responded that she did not.
    Lastly, the county court received testimony from Hand,
Benjamin’s guardian ad litem. Hand testified that he met with
Benjamin on one occasion in Shireman’s residence in order
to ascertain whether he needed a guardian. But Hand was
unable to communicate with him. Both Rhonda and Shireman
were present, and Rhonda informed him that she wanted to
                        Nebraska Advance Sheets
	                   IN RE GUARDIANSHIP OF BENJAMIN E.	699
	                            Cite as 289 Neb. 693

be Benjamin’s guardian and to maintain his placement with
Shireman. At that time, Hand determined that Rhonda would
be an appropriate guardian.
   However, Hand was later contacted by Region V and the
Department of Health and Human Services with concerns
regarding Benjamin’s living arrangement. And Hand’s opinion
as to an appropriate guardian subsequently changed. He testi-
fied that his current preference was for an independent third
party to serve as guardian. He further opined that Benjamin
should remain in a group home setting. And he recommended
that if Rhonda were appointed guardian, she be restricted from
placing Benjamin in Shireman’s care.
                    County Court’s Order
   The county court entered an order finding that Benjamin
was an incapacitated person and in need of a full guardian-
ship. The court appointed Augustine as guardian. But it nei-
ther made findings nor provided an explanation for passing
over Rhonda.
   Rhonda filed a timely notice of appeal, and the case was
assigned to the Nebraska Court of Appeals’ docket. We moved
the case to our docket pursuant to statutory authority.2
                 ASSIGNMENTS OF ERROR
   Rhonda assigns as error, reordered and restated, (1) alleged
professional misconduct committed by Benjamin’s appointed
attorney in his representation of Benjamin and (2) the county
court’s appointment of Augustine as Benjamin’s guardian over
Rhonda’s statutory priority.
                 STANDARD OF REVIEW
   [1,2] An appellate court reviews guardianship and con-
servatorship proceedings for error appearing on the record
made in the county court.3 When reviewing a judgment for
errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported

 2	
      See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
 3	
      In re Conservatorship of Gibilisco, 277 Neb. 465, 763 N.W.2d 71 (2009).
    Nebraska Advance Sheets
700	289 NEBRASKA REPORTS



by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.4

                         ANALYSIS
   We first address Rhonda’s allegation that the attorney
appointed to represent Benjamin committed professional mis-
conduct. Finding this allegation to be without merit, we then
turn to her assertion that the county court erred in appoint-
ing Augustine as Benjamin’s guardian over Rhonda’s statu-
tory priority.

                    P rofessional Misconduct
   Rhonda asserts that Benjamin’s appointed attorney vio-
lated applicable rules of professional conduct by nominat-
ing Augustine to be Benjamin’s guardian. She claims that
Benjamin’s attorney was not representing Benjamin’s
wishes and direction in making the nomination, in viola-
tion of Neb. Ct. R. of Prof. Cond. § 3-501.2(a) (rev. 2008).
Rhonda further asserts that Benjamin’s attorney consulted with
Region V in nominating Augustine, but that Region V had a
financial incentive to prevent Rhonda from being appointed
Benjamin’s guardian.
   [3] Section 3-501.2(a) provides, in pertinent part, that “a
lawyer shall abide by a client’s decisions concerning the objec-
tives of representation and . . . shall consult with the client
as to the means by which they are to be pursued.” This case
presents our first opportunity to examine § 3-501.2(a) in the
context of a client who is an incapacitated adult clearly in need
of a guardian.
   Although Rhonda asserts that Benjamin’s attorney failed
to follow his wishes and direction, she acknowledges in her
brief that Benjamin was unable to communicate his wishes and
direction to his appointed attorney. Recognizing this problem,
she shifts her argument. She argues that because Benjamin’s
attorney was unable to ascertain Benjamin’s wishes and direc-
tion, the rule prohibited his attorney from taking any action on
his behalf. We disagree.

 4	
      Id.
                        Nebraska Advance Sheets
	                   IN RE GUARDIANSHIP OF BENJAMIN E.	701
	                            Cite as 289 Neb. 693

   [4,5] Rhonda’s argument is contrary to the spirit and intent
of our rules of professional conduct. Section 3-501.2(a) also
states that “[a] lawyer may take such action on behalf of the
client as is impliedly authorized to carry out the representa-
tion.” And Neb. Ct. R. of Prof. Cond. § 3-501.14(b) states
that in representing a client with diminished capacity, a lawyer
may take reasonably necessary protective action if the lawyer
believes that the client is at risk of substantial physical, finan-
cial, or other harm unless action is taken and the client cannot
adequately act in his or her own interest.
   Further guidance is provided by the Restatement (Third) of
the Law Governing Lawyers. The Restatement provides that
a lawyer representing a client with diminished capacity must
act in the best interests of the client and pursue the lawyer’s
reasonable view of the client’s objectives or interests as the
client would define them if able to make adequately considered
decisions on the matter, even if the client expresses no wishes
or gives contrary instructions.5 There is nothing in the record
indicating that Benjamin’s appointed attorney was motivated
by anything other than Benjamin’s best interests in nominating
Augustine. And there is no indication that Augustine’s nomi-
nation was contrary to Benjamin’s wishes or direction, had
Benjamin been able to communicate with his attorney.
   We also reject Rhonda’s assertion that Benjamin’s appointed
attorney committed professional misconduct by consulting with
Region V in his representation of Benjamin. As Benjamin’s
caregiver, Region V had particular knowledge of his circum-
stances and needs. Although Region V may have possessed a
financial incentive for Benjamin to remain in its care, there is
no evidence that such incentive influenced Benjamin’s attorney
in his nomination of Augustine. This assignment of error is
wholly without merit.

                Appointment of Guardian
  Rhonda asserts that the county court erred in appointing
Augustine as Benjamin’s guardian, because it passed over

 5	
      See Restatement (Third) of the Law Governing Lawyers § 24(1) and (2)
      (2000).
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702	289 NEBRASKA REPORTS



Rhonda’s statutory priority. Rhonda argues that the appoint-
ment of Augustine was arbitrary because there was no basis
to support a finding that it was in Benjamin’s best interest to
pass over her statutory priority. She further points to the county
court’s failure to make any specific finding that such action
was in Benjamin’s best interest.
   Section 30-2627 sets forth the requisites for who may
serve as guardian for an incapacitated person. With certain
exceptions not relevant here, § 30-2627(a) provides: “Any
competent person . . . may be appointed guardian of a person
alleged to be incapacitated . . . .” Subsection (b) of § 30-2627
sets forth the priority for appointment for persons who are not
disqualified and “exhibit the ability to exercise the powers
to be assigned by the court.” As Benjamin’s mother, Rhonda
fell within the category of persons having fourth priority—
“[a] parent of the incapacitated person . . . .”6 It is undisputed
that Augustine had no priority under § 30-2627(b). However,
§ 30-2627(c) provides in part that “[t]he court, acting in the
best interest of the incapacitated person, may pass over a per-
son having priority and appoint a person having lower priority
or no priority.”
   To the extent that Rhonda’s argument may be understood as
asserting that the county court was required to make a specific
finding as to Benjamin’s best interest, we reject her argument.
We do not interpret § 30-2627(c) as requiring a specific find-
ing that it is in the best interest of the incapacitated person
to pass over a person with priority. The plain language of
that subsection does not require any specific finding as to the
best interest of the incapacitated person.7 Rather, it permits a
court to pass over a person with priority when the best inter-
est of the incapacitated person requires such a result. And we

 6	
      See § 30-2627(b)(4).
 7	
      Compare State ex rel. Amanda M. v. Justin T., 279 Neb. 273, 777 N.W.2d
      565 (2010) (holding that court was not required to make specific finding
      as to best interests in creating parenting plan under Parenting Act), with
      Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007) (finding abuse of
      discretion when court failed to make specific finding that joint custody
      was in child’s best interests when specific finding was required by Neb.
      Rev. Stat. § 42-364(5) (Cum. Supp. 2006)).
                        Nebraska Advance Sheets
	                   IN RE GUARDIANSHIP OF BENJAMIN E.	703
	                            Cite as 289 Neb. 693

further construe the county court’s order as implicitly find-
ing that passing over Rhonda’s priority was in Benjamin’s
best interest.
   [6,7] However, we agree that the appointment of Augustine
as Benjamin’s guardian was arbitrary and capricious. A deci-
sion is arbitrary when it is made in disregard of the facts
or circumstances and without some basis which would lead
a reasonable person to the same conclusion.8 A capricious
decision is one guided by fancy rather than by judgment or
settled purpose.9
   [8] Section 30-2627(b)(4) evidences a legislative prefer-
ence that a parent of an incapacitated person be appointed
guardian over a person with no priority. But the county court
neither made specific findings nor provided explanation for
its deviation from this preference. And the record provides no
basis which would lead a reasonable person to conclude that
passing over Rhonda’s statutory priority was in Benjamin’s
best interest.
   At the guardianship hearing, Benjamin’s appointed attorney
argued that an independent third party should be appointed
Benjamin’s guardian because Rhonda had permitted Benjamin
to remain in Shireman’s care. But no evidence was presented
at the hearing establishing that any harm came to Benjamin
while in Shireman’s care. Rhonda refuted the allegation of
abuse made against Shireman and testified that Region V
informed her that the allegation was unfounded. And she
further testified that she was informed by a service coordina-
tor with the Department of Health and Human Services that
there was no reason Shireman could not be approved to care
for Benjamin.
   Although Walters indicated that Shireman made multiple
moves and appeared to have several people residing in her
home, Augustine testified that she did not observe any concerns
when she visited Shireman’s home in 2009. Although Walters
testified that Region V had not been notified of “some charges”
regarding Shireman or other occupants of Shireman’s home,

 8	
      In re Water Appropriation A-4924, 267 Neb. 430, 674 N.W.2d 788 (2004).
 9	
      Id.
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704	289 NEBRASKA REPORTS



this did not warrant passing over Rhonda’s priority. Walters
did not specify the nature of the charges or against whom the
charges were made. Nor did she indicate that Rhonda was
aware of the charges.
    Further, we do not construe Rhonda’s testimony as indicat-
ing an unequivocal intent to return Benjamin to Shireman’s
care. Rhonda responded affirmatively when asked if she would
return Benjamin to Shireman’s care, but she explained that
she would place Benjamin with Shireman only if the service
provider approved the placement. And she later testified that
she would maintain Benjamin’s placement in a group home if
the service provider believed a group home was better for him.
Additionally, she testified that she understood the concerns
regarding Shireman and that she would take those concerns
into consideration.
    Similarly, Rhonda’s intention to remove Benjamin from
Region V’s care did not warrant passing over her priority.
Although Walters testified that she had observed Benjamin
improve in several areas, no evidence was presented linking
such improvement to Region V or Benjamin’s placement in
the group home. On cross-examination, Walters admitted that
she did not know why Benjamin was “acting the way he was
acting or is acting how he’s acting now.” Thus, Walters could
not attribute Benjamin’s improvements to his residence in the
group home rather than in Shireman’s care.
    And we see no evidence in the record establishing that
Rhonda was unfit to serve as Benjamin’s guardian. Rhonda tes-
tified that she had been Benjamin’s voice and protector since
his birth and understood his moods. Walters and Augustine
each described positive interaction between Rhonda and
Benjamin. While Walters and Augustine indicated that Rhonda
had delayed in responding to requests for clothing or footwear,
such testimony was insufficient to establish that Rhonda was
unfit to be Benjamin’s guardian.
    In summary, without specific findings, a meaningful explana-
tion, or a record demonstrating grounds to support the appoint-
ment of Augustine as guardian in derogation of Rhonda’s prior-
ity, the appointment was arbitrary and capricious. Rhonda was
granted priority to be Benjamin’s guardian by § 30-2627(b).
                        Nebraska Advance Sheets
	                   IN RE GUARDIANSHIP OF BENJAMIN E.	705
	                            Cite as 289 Neb. 693

The record fails to disclose any basis which would lead a rea-
sonable person to conclude that deviating from the statutory
priority was in Benjamin’s best interest.
   [9] We acknowledge that the county court may have taken
reports from Hand into consideration in appointing Augustine,
but such reports were not offered into evidence at the guardian-
ship hearing. And contrary to Rhonda’s assertion at oral argu-
ment, we find nothing in the bill of exceptions to indicate that
the reports compose a part of the evidentiary record on appeal.
We have consistently stated that a bill of exceptions is the only
vehicle for bringing evidence before an appellate court; evi-
dence which is not made a part of the bill of exceptions may
not be considered.10

                         CONCLUSION
   We reject Rhonda’s allegation of professional misconduct,
but we agree that the county court erred in appointing Augustine
as Benjamin’s guardian without specific findings, any explana-
tion for bypassing Rhonda’s statutory priority, or any rea-
son readily apparent in the evidentiary record. Therefore, we
reverse the appointment of Augustine as guardian and remand
the cause for further proceedings. We recognize that the parties
may have erroneously assumed that materials otherwise avail-
able to the court were part of the evidentiary record. And we
acknowledge that § 30-2627(c) empowers the court, “acting
in [Benjamin’s] best interest,” to pass over Rhonda’s priority.
Thus, on remand, the county court may expand the evidentiary
record. Upon either the existing or an expanded record, the
court shall enter an order appointing a guardian for Benjamin
in conformity with this opinion.
	R eversed and remanded for
	                                further proceedings.


10	
      Ottaco Acceptance, Inc. v. Huntzinger, 268 Neb. 258, 682 N.W.2d 232
      (2004).

   Stephan, J., concurring.
   I agree that the county court erred in bypassing Rhonda’s
statutory priority without articulating any reasons for doing
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so. I write separately, however, to emphasize certain factors
which I believe the court should consider when determining
whether there is a “basis which would lead a reasonable person
to conclude that deviating from the statutory priority was in
Benjamin’s best interest.”
   Neb. Rev. Stat. § 30-2627 (Reissue 2008) clearly gives
Rhonda, as the “parent of the incapacitated person,” statutory
priority to be appointed as Benjamin’s guardian. It authorizes
the court to “pass over” Rhonda and appoint a guardian having
lower priority or no priority only when the court is “acting in
the best interest of the incapacitated person.” Section 30-2627
does not offer any guidance on how a court is to determine
what the “best interest of the incapacitated person” is.
   It is undeniable that Benjamin’s welfare is the paramount
consideration in the selection and appointment of his guardian.1
But § 30-2627 gives Rhonda priority, and that priority should
not be lightly disregarded. Historically, persons with familial
ties to an incapacitated person were given priority as guardians,
because it was presumed that such persons were more likely to
be solicitous of the incapacitated person’s welfare than would
someone else.2 That historical presumption seems particularly
apt in the circumstances of this case, where the record shows
that Rhonda has been Benjamin’s primary caregiver and sup-
port since birth. I would argue that absent a showing that
Rhonda is less likely to be solicitous of Benjamin’s needs than
someone with lower or no priority, the statutory priority should
be recognized.
   Rhonda’s statutory right to priority also has constitutional
underpinnings. In guardianship proceedings involving minor
children, we recognize and apply the parental preference
principle.3 The parental preference principle arises from the
substantive component of the Due Process Clause of the

 1	
      See, In re Guardianship of Lyon, 140 Neb. 159, 299 N.W. 322 (1941); 57
      C.J.S. Mental Health § 146 (2007).
 2	
      See, Matter of Conservatorship of Browne, 54 Ill. App. 3d 556, 370
      N.E.2d 148, 12 Ill. Dec. 525 (1977); Arthur’s Case, 136 Pa. Super. 261, 7
      A.2d 55 (1939).
 3	
      See In re Guardianship of D.J., 268 Neb. 239, 682 N.W.2d 238 (2004).
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	                   IN RE GUARDIANSHIP OF BENJAMIN E.	707
	                            Cite as 289 Neb. 693

14th Amendment, which protects the “fundamental rights
and liberties which are, objectively, ‘deeply rooted in this
Nation’s history and tradition.’”4 The U.S. Supreme Court
has recognized that “[t]he liberty interest . . . of parents in the
care, custody, and control of their children . . . is perhaps the
oldest of the fundamental liberty interests . . . .”5 The paren-
tal preference principle is based on an acknowledgment that
parents and their children have a recognized unique and legal
interest in, and a constitutionally protected right to, compan-
ionship and care as a consequence of the parent-child relation-
ship, a relationship that, in the absence of parental unfitness
or a compelling state interest, is entitled to protection from
intrusion into that relationship.6 The parental preference prin-
ciple protects the parent’s right to the companionship, care,
custody, and management of his or her child and the child’s
reciprocal right to be raised and nurtured by a biological or
adoptive parent.7 We have even stated that establishment and
continuance of the parent-child relationship is the most funda-
mental right a child possesses.8
   Here, of course, Benjamin is not a minor, and thus our
prior decisions regarding the constitutional protections of the
parental preference doctrine are not directly applicable to the
question of how to treat Rhonda’s statutory priority. Notably,
however, other courts have examined whether the parental
preference principle should extend to protect the relationship
between parents and their adult children. A number of federal
circuit courts have addressed the issue in the context of § 1983
actions brought by parents of adult children wrongfully killed
by state action (such as a shooting by a police officer).9 The

 4	
      Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L.
      Ed. 2d 772 (1997).
 5	
      Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49
      (2000).
 6	
      In re Guardianship of D.J., supra note 3.
 7	
      Id.
 8	
      Id.
 9	
      See, Russ v. Watts, 414 F.3d 783 (7th Cir. 2005) (surveying cases); 42
      U.S.C. § 1983 (2012).
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708	289 NEBRASKA REPORTS



issue presented in these cases is whether a parent can receive
compensation for the wrongful loss of a relationship with an
adult child. Courts have declined to extend the parental prefer-
ence principle and recognize a compensable right to a contin-
ued relationship with an adult child in these cases based on
two reasons: (1) The state action at issue was not deliberately
directed at severing the parent-child relationship, and (2) a par-
ent’s right to make critical child-rearing decisions concerning
the care, custody, and control of minors necessarily ends when
the child begins to assume critical decisionmaking responsibil-
ity for himself or herself.10
   Here, the state action of appointing a guardian other than
Rhonda is more deliberately directed at affecting the parent-
child relationship. And at least one circuit court has ques-
tioned whether a parent’s right to make critical child-rearing
decisions ever ends when the child is chronologically an
adult but remains dependent upon parents or other caregiv-
ers for his or her physical and emotional needs.11 I there-
fore do not think these cases are dispositive on the issue of
whether the parental preference principle applies when consid-
ering the scope of Rhonda’s statutory priority to be appointed
Benjamin’s guardian.
   I am aware of only one case that has directly addressed
whether the parental preference principle applies when a par-
ent wishes to be appointed the guardian of an adult child who
is incapacitated. In In re Tammy J.,12 a lower court appointed
a public guardian the legal guardian of an adult woman who
was developmentally disabled and functioned at the level of
an 8- or 9-year-old. The woman’s parents argued the appoint-
ment was improper absent a finding that they were unfit to be
her guardians, because it violated the parental preference prin-
ciple and their constitutional right to a continued relationship
with their daughter. As in Nebraska, the relevant statute gave
the parents priority to be appointed guardians, but the priority

10	
      Russ, supra note 9; McCurdy v. Dodd, 352 F.3d 820 (3d Cir. 2003).
11	
      See McCurdy, supra note 10.
12	
      In re Tammy J., 270 P.3d 805 (Alaska 2012).
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	                    IN RE GUARDIANSHIP OF BENJAMIN E.	709
	                             Cite as 289 Neb. 693

could be disregarded by the court “[w]hen in the best interest
of the incapacitated person . . . .”13
   The Alaska court recognized that the U.S. Supreme Court
has never taken a position on whether the substantive due proc­
ess rights of parents extend to relationships with adult children
and that the Court has been historically reluctant to expand the
concept of substantive due process. It further recognized the
federal circuit courts that have refused to expand the parental
preference principle in the context of § 1983 actions, as noted
above. It distinguished those cases easily, however, reasoning
that “the factual and procedural surroundings of these cases
are distant from those of the present case.”14 It recognized that
the issue before it was “more challenging”: Does a parent have
a constitutionally protected right to make decisions regarding
the care, custody, and control of an adult child who, due to
developmental disabilities, possesses the general competencies
of a young minor?15
   In wrestling with this question, the Alaska court reasoned
that caring for a developmentally disabled adult is not a form
of “‘child rearing’” and that there is less risk of preventing
the passing on of family heritage by interfering in a relation-
ship with a developmentally disabled adult than when inter-
fering in decisions about the upbringing of a minor child.16 It
further found that the rights of minor children are generally
subject to the wishes of their parents, but that adult indi-
viduals with disabilities have independent rights to equality of
opportunity, independent living, and personal and economic
self-sufficiency. It reasoned that when tension exists between
the parental interest in maintaining control over the care and
custody of a developmentally disabled adult and that adult’s
interest in maximum participation in society and maximum
self-sufficiency, the adult’s interest must be paramount. Based
on this rationale, it declined to extend the parental preference

13	
      Alaska Stat. § 13.26.145(f) (2004).
14	
      In re Tammy J., supra note 12 at 814.
15	
      Id.
16	
      Id. at 815.
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710	289 NEBRASKA REPORTS



doctrine to invalidate the appointment of the public guardian
instead of the parents.
   I do not quarrel with the result reached by the Alaska court.
It is right and just that our state’s goals regarding individuals
with disabilities should be to promote maximum equality of
opportunity, participation in society, independent living, and
self-sufficiency. Individuals with disabilities are not perpetual
children, and thus direct application of the parental preference
principle and its requirement that the parental relationship be
protected absent a showing of unfitness of the parent is not
proper in the circumstances of this case, where Benjamin is
an adult.
   Nevertheless, some of the basic concepts underlying the
parental preference doctrine continue to apply in a situation
where an adult child is incapacitated and someone has to make
continuing decisions about his or her everyday care and liv-
ing situations.17 This is particularly so here, where the record
demonstrates that Rhonda has been Benjamin’s caregiver and
has provided for his special needs his entire life. She, simply
stated, has a unique and special relationship with him. In my
view, the uniqueness of this relationship should be considered
in determining the scope of her statutory priority and in consid-
ering the best interest of Benjamin.
   Given the nature of the relationship between Rhonda and
Benjamin and the historical fact that next of kin are presumed
to act in the best interest of an incapacitated person, I do not
think the court should pass over Rhonda’s statutory priority
absent a showing that her desires or wishes for Benjamin will
significantly hinder his ability to participate in society, live
independently, or maximize his self-sufficiency. Without such a
showing, the simple fact that another person, without statutory
priority, may be slightly better at developing and maintaining
Benjamin’s best interest should not be enough to trump the
statutory priority based on the parental relationship.

17	
      See McCurdy, supra note 10.
