Appeal from the County Court for Adams County: JACK ROBERT OTT, Judge. Affirmed.

Jeffrey L. Stoehr, of Biggs & Stoehr, and Susan K. Alexander, of Alexander Law Offices, for appellant.

Robert M. Sullivan, of Helmann & Sullivan, P.C., for appellee.

IN RE GUARDIANSHIP & CONSERVATORSHIP OF DYLAN B. ET AL.

Filed January 30, 2001. No. A-00-386.

HANNON, SIEVERS, and MOORE, Judges.

SIEVERS, Judge.

Susan C. (Sue) appeals the county court's termination of her guardianship and conservatorship over her nieces, Jessica T. and Mercedes T., who have been living with Sue and her family in Washington State since 1996. The girls' natural father, Steven T., cross-appeals the county court's failure to immediately return Jessica and Mercedes to his custody in Nebraska once the court found him fit to parent the girls.

On April 1, 1994, Janice T. died in an automobile accident. Janice was survived by her husband Steven, daughters Jessica and Mercedes, and sons Dylan B. and Cody B. Steven is Jessica and Mercedes' natural father. Dylan and Cody's natural father, a man to whom Janice was married before Steven, is also deceased. In September 1994, Steven began living with Mary S. and her minor son, Colby S. Mary gave birth to her and Steven's child, Vincent T., on December 26, 1995. Sue is the maternal aunt of Jessica, Mercedes, Dylan, and Cody.

Sue and her husband visited the nieces and nephews in Nebraska in April 1996. Sue found the living conditions of Steven, Mary, and the six children deplorable. They lived in a single-wide mobile home which was improperly heated, unclean, and sparsely furnished. Sue observed a lack of food in the home and sewage outside the front door. Steven was an alcoholic, and the monthly Social Security checks of about $1,000 for Janice's four children provided much, if not all, of the family's income. Sue and Steven agreed that Sue and her husband would take her two nieces and two nephews back to Washington for a short, undetermined period of time to visit relatives. At that time, Jessica was almost 4 years old, Mercedes had just turned 2, Dylan was 9, and Cody was 8. When Steven contacted Sue to ask when he could pick up the children, she told him that she would not allow him to take them until he found more suitable living arrangements.

On June 11, 1996, Steven petitioned the Adams County Court to be named the guardian and conservator for Jessica, Mercedes, Dylan, and Cody. After a hearing on November 21, the court placed the children in the legal care, custody, and control of the Nebraska Department of Health and Human Services (DHHS) pending final hearing. The court directed DHHS to leave the children in Sue's care and custody, unless after investigation, DHHS deemed that a different placement was necessary and in the children's best interests. The children remained with Sue and her family in Washington until February 18, 1997, when the court ordered their return for a hearing to determine the matter of guardianship and conservatorship, pursuant to Steven's motion. The county court issued an order terminating the placement with DHHS on February 19. The judge ruled that it would be in Dylan and Cody's best interests to appoint Sue as their guardian and conservator because the boys' natural parents were dead. Steven does not dispute this order regarding Dylan and Cody. In the same order, the judge found that because Jessica and Mercedes' natural mother was deceased and Steven was unfit to act as guardian and conservator, it was in the girls' best interests that Sue become their guardian and conservator. In his written decision, the judge stated that a guardianship is not a permanent situation and that Steven had the opportunity to reclaim his daughters if he took at least six steps to change his life. Steven needed to show that he could (1) provide and maintain a stable and proper home, (2) financially provide for the children,(3)successfully complete a drug and alcohol rehabilitation program, (4) attend at least weekly Alcoholics Anonymous (AA) meetings for 6 months and obtain a program sponsor, (5) hold a steady job not subject to seasonal fluctuation and layoffs, and (6) provide the court with a certificate proving that he had completed a parenting course. The court set a 1-year deadline for Steven to accomplish these objectives and noted in the order that completing these objectives over a longer period of time would create another "hurdle" in convincing the court that Steven was fit to parent Jessica and Mercedes. The judge did not order child support, stating that Sue could file a separate action for support in the Adams County District Court.

Throughout 1997, Steven sought counseling and treatment for his alcoholism, attended AA meetings, and completed a parenting course. In the spring of 1998, Steven's clinical therapist told him that she believed he had completed enough counseling to control his alcoholism. Steven voluntarily continued to see the therapist until June 1998. One month later, in July, Steven was hired by a construction company, Fagan, Inc. At Fagan, Steven holds a stable position not subject to seasonal fluctuations. Steven and Mary were married in the spring of 1999. That summer, they moved into the home in which they currently reside with Colby and Vincent after having moved to new residences annually the previous several years.

Since April 1996, Steven had contacted Jessica and Mercedes irregularly and infrequently by telephone, and only sent small gifts. However, on May 12, 1999, Steven wrote a letter to Sue requesting that she allow Jessica and Mercedes to come to Nebraska for their summer vacation. In his letter, Steven offered to pay the girls' transportation costs. Sue responded by letter 1 week later. She denied Steven's visitation request, citing her family's planned summer activities. However, Sue suggested that Steven visit them in Washington in early August. Steven petitioned the court for visitation. Jessica and Mercedes attended the hearing in Nebraska on July 29, and the court awarded Steven 2 weeks' visitation in Nebraska to commence that day. Twice during the 2-week visit, Steven's clinical therapist came to the house at Steven's behest to observe his interactions with his daughters. On August 12, Steven petitioned the county court for a change in or termination of Sue's guardianship and conservatorship over Jessica and Mercedes, alleging that he was now fit to act as his daughters' parent. Steven filed a motion requesting that the court exclude any evidence of the children's best interests and to consider only evidence of Steven's parental fitness. On September 30, the court ruled that the best interests of the children would only be considered if Sue filed a responsive pleading objecting to the termination or change of guardianship and alleging that even if Steven was found to be a fit parent, he had forfeited his parental rights. Sue filed a responsive pleading on October 13 alleging that Steven was unfit or that he had forfeited his parental rights.

A hearing was held on December 13, 1999, at which Steven's clinical therapist testified that she had visited Steven's home twice in August and that she found the home to be happy and warm. She said that Jessica and Mercedes stayed very close to Steven during her visits. Steven's AA sponsor testified that he had worked with Steven several years and that he sees Steven attending AA meetings two or three times weekly. Steven's mother testified that while she testified against Steven in the February 18, 1997, guardianship and conservatorship hearing, she believed that he had vastly improved his ability to care for his children.

We note that Judge Jack Robert Ott presided over the hearing, rather than Judge Daniel Bryan, Jr., who had issued the February 19, 1997, order creating Sue's guardianship and conservatorship and setting forth Steven's "goals." Judge Ott terminated the guardianship and conservatorship after finding that Steven was no longer an unfit parent and that he had not forfeited or abandoned his daughters. Although Judge Ott noted that Steven has substantially improved his life, he expressed his concern that Steven may resume drinking alcohol. The judge identified other

potential problems looming ahead. He noted that Mary had sought treatment for bipolar disorder in the past and may lack adequate housekeeping skills and judgment. He observed that Steven's employment requires long days, travel to job sites, and overnight stays which keep him out of the home and away from his children. The judge opined that the addition of two children to a household that already includes two sons, one of whom is not Steven's biological son, would increase the pressure on Steven to provide for his family. The court tailored the order to delay termination of the guardianship and conservatorship until June 30 or until 2 weeks after Jessica and Mercedes completed the current school year, whichever occurred earlier.

On April 7, 2000, Sue filed her notice of appeal to this court. Shortly thereafter, Steven filed a motion asking us to "remove the stay," allegedly in effect because of Sue's appeal, which we overruled without opinion or comment.

Sue assigns error in the county court judge's disregarding the best interests of the children in determining Steven's parental fitness; in finding that Steven was a fit parent and that it was not in the best interests of his two minor daughters that a guardianship continue; and in failing to find that Steven had forfeited, waived, or suspended his, parental rights or abandoned Jessica and Mercedes. Steven argues on cross-appeal that the county court erred by delaying the return of his daughters to him after finding him to be a fit parent.

Appeals of matters arising under the Nebraska Probate Code, Neb. Rev. Stat. §§ 30-2201 through 30-2902 (Reissue 1995 & Cum. Supp. 1996), are reviewed for error on the record. In re Estate of Rolenc, 7 Neb. App. 833, 585 N.W.2d 526 (1998). When reviewing an order for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. In re Conservatorship of Estate of Marsh, 5 Neb. App. 899, 566 N.W.2d 783 (1997). On questions of law, an appellate court has an obligation to reach its own conclusions independent of those reached by the lower courts. In re Guardianship of Lavone M., 9 Neb. App. 245, 610 N.W.2d 29 (2000).

Propriety of Delaying Admission of Best Interests Evidence.

Sue argues that the county court erred in limiting evidence to parental fitness and disallowing evidence of the children's best interests. The court's September 30, 1999, order reads, "The court must first have evidence that the natural parent(s) have forfeited his/her right to custody or guardianship before any best interest evidence is offered." Further, the order allowed best interests evidence only if Sue filed a responsive pleading objecting to the termination or change of guardianship. Sue cites Uhing v. Uhing, 241 Neb. 368, 488 N.W.2d 366 (1992), for the proposition that while the fundamental right of a parent to raise his or her children has been recognized in Nebraska, nothing suggests that the best interests of a child is not an issue to be considered by the courts in determining custody between a natural parent and a third party.

Nielsen v. Nielsen, 207 Neb. 141,146, 296 N.W.2d 483,486 (1980), delineates the parental preference doctrine:

"The right of a parent to the custody of his 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 custody unless he is shown to be unfit or to have forfeited his superior right to such custody." (Syllabus of the court.)

We have recently written extensively about the rights of a natural parent in a custody dispute with a guardian in In re Interest of Eric 0. & Shane O., 9 Neb. App. 676, 617 N.W.2d 824 (2000). As a general proposition, because a fit parent who has not forfeited the superior right is entitled to custody of his or her children, the fact that someone else might better provide for the children does not deprive the natural parent of custody. See id. In short, if the parental preference doctrine is operative, then the effect of the doctrine is that the law presumes that it is in the children's best interests to be with their parent. See In re Interest of Amber G. et aL, 250 Neb. 973, 554 N.W.2d 142 (1996). Consequently, the first inquiry here was Steven's parental fitness. If the court found Steven fit, evidence of the children's best interests would be unnecessary. Thus, the trial judge did not err in his ruling structuring the evidentiary presentation.

Steven's Parental Fitness.

Sue combines her second and third assignments of error in arguing that Steven failed to prove his parental fitness; that he forfeited, waived, or suspended his parental rights; or that he abandoned his children. Sue points to Steven's past behavior to allege he is an unfit parent. This court has said that evidence of the custodial parent's behavior during the year or so before the hearing on the motion to modify is of more significance than the behavior prior to that time. Hoins v. Hoins, 7 Neb. App. 564, 584 N.W.2d 480 (1998). Hoins involved a divorced parent seeking a change of custody, rather than a natural parent seeking to regain custody from a guardian. However, guardianships are temporary and depend upon the circumstances existing at the time, making a guardian subject to removal at any time. In re Guardianship of Lavone M., 9 Neb. App. 245, 61 0 N.W.2d 29 (2000). Similarly, child custody is not final and is always subject to review. See Bath v. Bath, 150 Neb. 591, 35 N.W.2d 509 (1949). We think that because a nonpermanent guardianship is involved, Steven's recent behavior is of great importance, particularly given the fact that he earlier received rather specific directions as to what he needed to do to make himself "fit." ... Parental unfitness means a personal deficiency or incapacity which has prevented, or would 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 well-being."' Uhing v. Uhing, 241 Neb. 368, 375, 488 N.W.2d 366, 372 (1992), quoting Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990). The evidence shows that Steven has largely rectified the personal deficiencies and incapacities -which the February 19, 1997, order identified. Within the 1-year timeframe allotted, Steven successfully completed the drug and alcohol treatment sessions he was ordered to attend and voluntarily attended more counseling, even after his therapist thought he had successfully completed the counseling. He consistently went to AA meetings for the 6 months required, acquired a sponsor, and has continued to attend AA meetings at least twice weekly as of the time of the hearing on December 13, 1999. Steven completed a parenting course within months of the court order. Admittedly, it apparently took Steven longer than 1 year to establish a stable and proper home and achieve a measure of financial stability by acquiring a steady job not subject to seasonal work fluctuations and layoffs. The county court order of February 19, 1997, noted that taking more than 1 year to fulfill the specified requirements would "create another hurdle to the best interest of the children" such that the court would be reluctant to intervene in the stable home life of Jessica and Mercedes. The fact that it took Steven approximately 2 years to obtain the goals showing his parental fitness does not, by itself, preclude a finding of fitness or mean that the court cannot terminate the guardianship and conservatorship. In reaching this conclusion, we recognize that Steven's life was a mess in 1996 when Sue was appointed guardian and conservator of the children and that Steven had a lot of work to do to in order to reconstruct himself into a person who would be fit to parent Jessica and Mercedes. Consequently, we consider the magnitude of the task he faced and the fact that he immediately set about working to improve those areas of his life that Judge Bryan identified for him and that he has wavered little from proceeding forward toward those goals. And, in the final analysis, the evidence is quite compelling that Steven has proved his parental fitness, even though it took longer than Judge Bryan might have desired and directed.

The court's decision that Steven is now fit to parent his daughters was supported by competent evidence and was not arbitrary, capricious, or unreasonable.

Forfeiture of Parental Rights.

Separate from the question of parental fitness is Sue's claim that Steven forfeited his parental rights, thereby negating the parental preference doctrine. Sue directs us to the holding that while a parent has a natural right to the custody of his or her child, the welfare of a child of tender years is paramount to the wishes of a parent where the child has formed a natural attachment to persons who have long been in the relation of parents with the parent's approval and consent. Haynes v. Haynes, 205 Neb. 35, 286 N.W.2d 108 (1979). Sue cites Nye v. Nye, 213 Neb. 364, 329 N.W.2d 346 (1983), as an example of a case in which the court adopted the Haynes position in explaining how a parent forfeits parental rights by acquiescing to a guardianship, although the parent had not expressly approved or consented to the guardianship. However, a close reading of Nye reveals that the parent failed in his custody claim primarily because he twice resorted to self help to take custody of the children and he failed to pay court-ordered child support. That situation does not exist here. In addition, neither Haynes nor Nye clearly explain the concept of forfeiture.

Forfeiture of parental rights occurs by substantial, continuous, and repeated neglect of a child and a failure to discharge the duties of parental care and protection. In re Interest of Eric 0. & Shane O., 9 Neb. App. 676, 617 N.W.2d 824 (2000). In that case, the guardians took custody of the natural father's infant and 2-year-old son in 1994. The natural father agreed to the guardianship in a written stipulation, and the two boys had lived with the guardians for 6 years before the natural father sought custody. During the guardianship, the natural father faithfully visited his sons and paid his court-ordered child support. We did not find that the natural father had forfeited his parental rights, but found that when children are adjudicated under the juvenile code, the parental preference doctrine is applicable. Id.

While Steven initially agreed to Sue's taking custody of his daughters in April 1996, by June 1996, he sought appointment as Jessica and Mercedes' guardian and conservator. After working on his "goals" from Judge Bryan for 2 years, Steven sought to change or terminate Sue's guardianship and conservatorship of Jessica and Mercedes in August 1999. Therefore, we find that Steven did not forfeit his parental rights by acquiescing to the guardianship and conservatorship.

Next, we examine whether Steven forfeited his parental rights by substantially, continuously, or repeatedly neglecting Jessica and Mercedes. We have reviewed the record concerning Steven's efforts at maintaining contact and offering financial support to his daughters while they lived in Washington. The evidence shows that Steven has called Jessica and Mercedes sporadically and written infrequently since April 1996. He has seen his daughters only twice between April 1996 and the instant trial. Both visits occurred in Nebraska: at the hearing held on February 18, 1997, and for 2 weeks in August 1999. Steven attributes his lack of visitation with his daughters in Washington to the necessity of staying in Nebraska to work two jobs which paid low wages that made him unable to afford to travel to Washington while he was supporting Mary, Colby, and Vincent. He notes that he has been employed in a stable, well-paying position in the construction industry with Fagan only since July 1998. When Steven attempted to acquire visitation with Jessica and Mercedes during the summer of 1999, Sue rebuffed his efforts despite his offer to pay for his daughters to visit him in Nebraska. And, it is quite clear that Sue did not facilitate a father-daughter relationship. Steven received 2 weeks' visitation in August 1999 only because of the court's order. While Steven apparently had the potential to relocate to Washington and continue to work for Fagan, he explains that his decision to remain in Nebraska was driven by his desire to comply with the court's February 19, 1997, order that he create a stable and proper home environment for his children so that he could reclaim his daughters. The record shows that between the issuing of that order and June 1999, Steven had moved to a new residence almost annually.

The February 19, 1997, order is written with the clear implication that if Steven fulfilled the six "goals" which the court identified, he would be reunited with his daughters. While the nature and frequency of his contacts with Jessica and Mercedes were considerably less than ideal, we can understand why Steven focused his efforts on achieving the six objectives listed by Judge Bryan. Steven justifiably expected that success in that regard would result in reunification with his daughters. This expectation may provide some measure of explanation why Steven has not maintained the amount of contact with his daughters we would expect of a parent seeking to reunite with a child. Yet, the time Steven's daughters spent with him in August 1999 appeared harmonious to his counselor, and she testified to evidence of real closeness between Steven and his daughters.

With respect to financially supporting his daughters, Steven has contributed only $500 to $1,000 since April 1996. However, the court did not order him to pay child support, Sue did not request it, and Steven has other children to support. Steven's efforts at maintaining contact with and providing financial support to his daughters is far from exemplary. However, Steven has consistently opposed the guardianship, has dedicated himself to achieving the goals set for him by Judge Bryan, and explained the mitigating circumstance of his belief that if he complied with the court order, he would regain his daughters. We find that the evidence does not prove forfeiture so as to render the parental preference doctrine inapplicable.

Sue also assigned error to the court's failure to find that Steven had "waived" or "suspended" his parental rights, but she does not cite any supporting authority. In any event, we do not think that "waiver' or "suspension" differs from the forfeiture issue we have already discussed.

Abandonment of Parental Rights.

Finally, Sue argues that Steven abandoned Jessica and Mercedes. Abandonment occurs when a parent intentionally withholds from a child, without just cause or excuse, the parent's presence, care, love, protection, maintenance, and the opportunity for the display of parental affection for the child. In re Interest of Sunshine A. et al., 258 Neb. 148, 602 N.W.2d 452 (1999) (mother abandoned children by voluntarily, unreasonably, and unjustifiably leaving children's state of residence and by failing to provide for her children's needs). The question of abandonment is largely one of intent, to be determined in each case from all the facts and circumstances. Id. Here, Steven never moved away from his daughters, instead, Sue moved the girls to Washington. While it is true that Steven may have had the opportunity to relocate to Washington and maintain his employment with Fagan, he also had reasons to stay in Nebraska. Steven testified that he was concerned about uprooting his wife and her two sons, one of whom is attending elementary school. He also stated that he feared that such a move might cause the court to find that he was not providing a stable and proper home. Steven cited as support for this fear the several annual changes in residences he made after the court issued its order. It seems beyond reasonable dispute that Steven maintained interest in, and a strong commitment to, his daughters by directing himself to the goals Judge Bryan set, and while he may not have possessed the financial means to visit them in Washington, he did seek visitation in the summer of 1999. Steven also occasionally called Jessica and Mercedes and sent them gifts. While hindsight suggests that Steven's contacts with his daughters were poor, we cannot ignore his sincere focus on compliance with the court's order to control his alcoholism, improve his financial status, and provide a stable and proper home so that he could regain custody of Jessica and Mercedes. In conclusion, Steven neither intended to nor did he abandon his daughters.

Stay of Guardianship Termination.

In his cross-appeal, Steven argues that upon the finding that he was a fit parent, the county court should have immediately restored custody of his children to him and that he should not have been required to await the outcome of this appeal to have the children returned to him. During the pendency of this appeal, we reviewed and overruled on September 12, 2000, Steven's "Motion to Remove Stay," which Neb. Rev. Stat. § 30-1601(4) (Cum. Supp. 2000) appears to impose by virtue of Sue's appeal. Because we have concluded that the county court correctly found that Steven is fit to parent his daughters, the guardianship and conservatorship will terminate, and Steven's argument that any statutory stay should have been lifted during this appeal or that the county court should have immediately directed the return of the children is now obviously moot. An appellate court is not required to engage in an analysis which is unnecessary to decide the case before it. Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994). That said, we trust that the best interests of the children will ensure that Sue and Steven will implement the prompt but sensitive transition of custody.

The county court judge's decision to terminate Sue's guardianship and conservatorship of Jessica and Mercedes was based on competent evidence of Steven's current fitness to parent his daughters. Our review of the evidence reveals that Steven neither forfeited his parental rights nor abandoned Jessica and Mercedes. We need not decide Steven's cross-appeal as it is moot. Jessica and Mercedes. shall be returned to Steven's custody forthwith.

AFFIRMED.