Guardianship of M.R.S., 87619

Citation960 P.2d 357
Decision Date12 May 1998
Docket NumberNo. 87619,87619
PartiesIn the Matter of the GUARDIANSHIP OF M.R.S., a minor child, David L. SCHNEIDER, natural father, Appellant, v. Roy and Kay NAVEJAR, Guardians, Appellees.
CourtSupreme Court of Oklahoma

Certiorari to the Court of Civil Appeals, Division I.

¶0 Natural father of a six-year-old daughter moved to terminate her guardianship pursuant to 30 O.S.1991 § 4-804 on the grounds that the guardianship was no longer necessary. The Honorable David E. Winslow, Tulsa county district judge, denied the motion, finding that the father, who had never been found unfit, had failed to prove substantial and material changed circumstances, and found that the best interests of the child was to remain with the guardians. The Court of Civil Appeals reversed and remanded for a new hearing. We granted certiorari and find that the trial court erred by applying an improper standard of proof for termination of the guardianship.

CERTIORARI GRANTED PREVIOUSLY; OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; THE TRIAL COURT'S ORDER IS REVERSED AND THE CAUSE IS REMANDED WITH DIRECTIONS TO ENTER AN ORDER IN CONFORMANCE WITH THIS OPINION.

Sharon Womack Doty, Tulsa, for Appellant, David L. Schneider.

Lillian M. Hamor, Tulsa, for Appellees, Roy and Kay Navejar.

Stanford C. Lane, Lisa R. Frazier, Tulsa, for Minor Child.

HARGRAVE, Justice.

¶1 The issue before us is the standard of proof required in a proceeding to terminate the guardianship of a minor under 30 O.S.1991 § 4-804. The natural father of a six-year-old daughter sought to terminate her guardianship for the reason that the guardianship was no longer necessary. The trial judge denied the application, finding that the father had failed to prove substantial and material change of condition, and that therefore it was in the child's best interests to remain with the guardians.

¶2 M.R.S. is the daughter of David and Brenda Schneider. Shortly after M.'s birth, Brenda Schneider abandoned David and M. David obtained a divorce from Brenda and was awarded custody of M. The guardians, Roy and Kay Navejar, are not related to M. 1 David's father and step-mother and the Navejars helped care for M. after her mother left. M. has lived with the Navejars for most of that time. The Navejars were appointed guardians of M. in 1993, after six days of testimony which resulted in an agreement between the parties that was approved by the court. 2

¶3 David Schneider testified that he agreed to the guardianship because at that time he was single and was on call 24-hours per day, seven days a week, with his job and was therefore unable to care for M. David Schneider was given liberal visitation and was directed to pay child support and medical expenses. The order appointing guardians specifically stated that none of the parties was found unfit to care for M., and that it was in her best interests for the Navejars to be appointed guardians.

¶4 David Schneider moved to terminate the guardianship proceeding in 1995, when M. was six years old, based upon changes in his circumstances that would permit him to care for her full-time. David Schneider testified that he has remarried and that his wife is expecting a baby. He stated that they will move into a three bedroom home that they own and will rent their present home for additional income. David Schneider testified that he has maintained a relationship with M. through his visitation with her on Thursday nights and on alternate weekends, and that he has continued his relationship with her and wants to provide a home for her. David Schneider testified that he now works regular hours, 7 a.m. to 7 p.m. five days a week and is off on weekends. He testified that he had spent all of his court-allowed visitation time with M., missing some of the Thursday night visits only when he was unable to get off work. Lisa Schneider, David's wife, testified that she gets along very well with M., is anxious to welcome her into the family and to make a home for her. Lisa Schneider is a housewife who stays home full time. She testified that she had developed a good relationship with M.

¶5 The trial judge conducted the hearing to terminate the guardianship as if it were a change of custody matter in a divorce action and placed on the father the burden of showing by clear and convincing evidence a substantial and material change in circumstances and that the best interests of the child would be served by terminating the guardianship, even though the father never had been found unfit. In effect, the trial court required the father to prove by clear and convincing evidence that he could provide a better home for M. than could the Navejars. The trial court held that the best-interests-of-the-child test controlled and that there was overwhelming proof that it would be in M.'s best interests to remain with the Navejars. The trial judge denied the application to terminate the guardianship.

¶6 The father appealed, arguing that the trial court erred by placing on him a burden of proof that applies only in post-decree custody contest between a child's natural parents. David Schneider argues that because he never has been found to be unfit, an impermissible burden of proof was placed on him to show material and substantial change of circumstances, and to prove that change of custody would be in the child's best interest, which ignored his preferential right to custody as the child's natural father. He argues that the burden of proof placed on him for termination of the guardianship was the same burden he would face if he had been found unfit as a matter of law. He argues that Oklahoma case law repeatedly has held that parents must affirmatively be found unfit in order to be denied custody of their children, and that in the absence of unfitness, the parental preference doctrine applies.

¶7 The guardians argue that the "best interests of the child" test is the proper test to be applied in all cases involving children, and that where the trial judge has found that it is in the child's best interest to remain under guardianship, this Court may not overturn the decision unless there has been abuse of discretion.

¶8 Title 30 O.S.1991 § 2-101 provides that the guardian of a minor may be appointed when it is necessary or convenient. Title 30 O.S.1991 § 2-103B provides that the court shall be guided by 10 O.S. § 21.1 in appointing a guardian for a minor 3. Section 4-801 lists grounds for removal of guardians. Section 4-801(8) provides that a guardian may be removed by the district court "when it is no longer proper that the ward should be under guardianship." Title 30 O.S.1991 § 4-804 provides for termination of the guardianship of a minor when it is no longer necessary:

"The guardian of an incapacitated or partially incapacitated person or minor may be discharged by the court when it appears to the court, on the application of the ward or otherwise, that the guardianship is no longer necessary." (emphasis added)

¶9 A guardianship is not a proceeding for termination of parental rights. The statutory language above implies that a guardianship is temporary, until such time as the factors leading to the guardianship are remedied. See, Wilkerson v. Davila, 351 P.2d 311, 315 (Okla.1960). This Court has not previously stated a "test" for termination of a guardianship of a minor child on the grounds that the guardianship is no longer necessary. Two previous decisions, however, make clear that where the natural parent is seeking to terminate a guardianship, the parent need only show that the impediments that led to the guardianship being imposed have been removed. In Grose v. Romero, 200 Okla. 330, 193 P.2d 1014, 1016 (1948), although decided on jurisdictional grounds, we observed that:

"Under the above statute and decisions [predecessor to 30 O.S. § 4-801(8) and Guardianship of Hight, 194 Okla. 214, 148 P.2d 475 (1944) ], upon an application made in the guardianship proceeding to terminate the guardianship of the person, and a showing that petitioner [mother] had recovered from the physical disability under which she labored, she would be entitled to the custody of the children unless it was clearly established that she was unfit, or that the change of custody was inimical to the welfare of the minors."

¶10 We later discussed the grounds for termination of the guardianship of a minor in In re Guardianship of Hatfield, 1972 OK 10, 493 P.2d 819. 4 In that case the trial judge denied natural mother's application to terminate the maternal grandmother's guardianship of two children of tender age. We reversed, holding that it was error to reject the mother's offer of proof to show that the guardianship should be terminated because she had become a fit and proper person to have custody and that such custody would be in the ward's best interest.

¶11 In Hatfield, the maternal grandmother had been appointed guardian of her daughter's two children, aged two and four years. Their mother was not married and the grandmother had been largely caring for the children. The mother had threatened to leave town with the children under "circumstances that would not be for the minors' best interests." Four years later the mother moved to terminate the guardianship, alleging that she had married and had established a good home, that she was a fit and proper person to have custody of her minor children and that the grandmother was not, and that it would be in the minor children's best interests to be returned to their mother. At trial, the mother offered proof to show changes in her circumstances from those existing at the time the guardianship was instituted, in an attempt to show that under [§ 4-801(8) ] it was no longer proper that the minor be under guardianship. The trial court sustained the grandmother's objection to the introduction of this evidence and refused to terminate the guardianship. On appeal, we determined the controlling...

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