Guardianship of Williams, Matter of, 69506

Citation869 P.2d 661,254 Kan. 814
Decision Date04 March 1994
Docket NumberNo. 69506,69506
PartiesIn the Matter of the GUARDIANSHIP OF Nolynn Glendon WILLIAMS, a minor child.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. A natural parent's right to the custody of his or her children is a fundamental right protected by the Fourteenth Amendment to the Constitution of the United States which may not be disturbed by the State or by third persons absent a showing the natural parent is unfit.

2. It is a firmly established rule in this state that a parent who is able to care for his or her children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his or her children as against grandparents or others who have no permanent or legal right to the children's custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them.

3. The best interests of the child test is the proper rule to apply as between the natural parents of a minor child or children when their custody is at issue. However, absent highly unusual or extraordinary circumstances, the best interests of the child test has no application in determining whether a parent, not found to be unfit, is entitled to custody as against a third-party nonparent.

4. The opinion of the Court of Appeals in In re Marriage of Criqui, 14 Kan.App.2d 672, 798 P.2d 69 (1990), is overruled.

Elizabeth Lea Henry, Fletcher & Mathewson, P.A., Wichita, argued the cause and was on the brief, for appellant natural mother.

Warren M. Wilbert, Wichita, argued the cause and was on the brief, for appellee guardian.

HOLMES, Chief Justice.

This is an appeal by Kathleen Williams, the natural mother of Nolynn Glendon Williams, a minor, from an order of the district court denying a petition to terminate a voluntary guardianship established for Nolynn Glendon Williams. The guardian, Cindy Hawley, opposed the petition to terminate the guardianship. We reverse.

The controlling facts are not seriously disputed. For simplicity and clarity, Kathleen Williams, the natural mother, petitioner and appellant, will be referred to as Kathleen; Cindy Hawley, the respondent guardian and appellee, will be referred to as Cindy; and the minor child and ward will be referred to as Nolynn.

Kathleen is the natural mother of Nolynn, born in Wichita on August 28, 1991. It is alleged that Sonny Garrett is the probable father of Nolynn; however, he has not assumed any responsibility for Nolynn and has not been a party to any of the guardianship proceedings. Cindy and Kathleen were longtime friends and Kathleen sought her help in babysitting with Nolynn. Cindy began babysitting with Nolynn within three weeks of his birth and by December 1991 was essentially caring for him full time. Kathleen was experiencing financial and emotional problems during this time, and in January 1992 she and Cindy agreed that Cindy should be appointed guardian of Nolynn. At that time, Cindy consulted a Wichita attorney, but the petition for guardianship was not actually prepared and signed until late in June 1992.

In the meantime, Kathleen, who describes herself as an independent contractor doing remodeling work, moved to Iowa to pursue an employment opportunity. She made periodic visits to Wichita but her visitation with Nolynn was sporadic at best. In late July 1992, Kathleen moved back to Wichita and visitation was resumed on a more regular basis.

On October 19, 1992, Nolynn was admitted to St. Francis Medical Center in Wichita where he was diagnosed with a rare kidney disease known as hemolytic uremic syndrome (HUS). He subsequently was transferred to Children's Mercy Hospital in Kansas City, Missouri, where Cindy stayed with him until his release on November 22, 1992. It appears that HUS is an ongoing physical problem and Nolynn requires a strict diet and regular medication; he will probably require dialysis treatment in the future.

Conflict developed between Kathleen and Cindy, and on November 24, 1992, Kathleen filed a petition to terminate the guardianship and to have Nolynn returned to her care. In the original petition for guardianship filed June 29, 1992, it was alleged, inter alia:

"That Nolynn Glendon Williams is in need of appointment of a guardian for reason that he is a minor child and the Petitioner [Kathleen] of said child is unable at the present time to give adequate care and maintenance of said child."

The petition for guardianship was heard by the court the same date it was filed, and Cindy was appointed guardian as requested by Kathleen. There were no allegations or contentions that Kathleen was not a fit person, and the guardianship was established by agreement of the parties. If there was any evidence or testimony presented to the court at the time, it has not been included in the record on appeal. Kathleen testified at the hearing for termination of the guardianship that it was her understanding that the guardianship was necessary to allow Cindy to have the right to seek medical care for Nolynn.

In the petition to terminate the guardianship, Kathleen alleged that the original guardianship was sought because "she was temporarily unable to care for her son" and that she was "once again able to provide for the care of the minor ward [Nolynn]." While the answer filed by Cindy denied that Kathleen's inability to care for Nolynn was temporary and that Kathleen was once again able to provide for him, there were no allegations that Kathleen was an unfit mother or that she was unfit to have the care and custody of Nolynn. The answer did allege that it would be in Nolynn's best interests for the guardianship to be continued.

Kathleen's petition for termination of the guardianship was heard by the district court on February 5, 1993. There was considerable testimony about the lifestyles of Kathleen and Cindy, their plans for the future, and their respective abilities to provide the necessary physical, emotional, and medical care needed by Nolynn. A review of all the testimony reveals that there has been a bonding between Nolynn and Cindy and her husband Mel Hawley, that Cindy and Mel are devoted to Nolynn, and that they sincerely desire to retain custody and control of Nolynn. It also appears that Kathleen, despite numerous problems, loves her son and also desires his care and custody.

In closing arguments before the trial court, Cindy's counsel did make reference to Kathleen's fitness to take Nolynn back and care for him. However, the principal thrust of the argument was to the effect that it would be in Nolynn's best interests to remain with Cindy. The trial judge correctly noted in his statement from the bench that under the pleadings and record in the case Kathleen's fitness was not an issue. The principal thrust of Kathleen's argument was that the parental preference doctrine, long recognized in Kansas, should apply. In closing the proceedings, the court directed counsel to submit proposed findings and conclusions on the issue of whether the parental preference doctrine should apply or whether the best interests of the child test should be applied as an exception to the parental preference doctrine.

Following the submission of the requested findings and conclusions, the court accepted the proposed findings of fact and conclusions of law submitted by Cindy and denied termination of the guardianship. The court ruled that its decision was controlled by In re Marriage of Criqui, 14 Kan.App.2d 672, 798 P.2d 69 (1990), and that Kathleen "must show not only that she is fit, but also that the change of custody materially promotes the child's best interests and welfare." The court then concluded: "In the present case, Kathleen Williams, has failed to carry her burden to show that a change of custody would materially promote the welfare of her minor son, Nolynn Glendon Williams."

Kathleen appealed to the Court of Appeals, and the case was transferred to this court pursuant to K.S.A. 20-3017. The issue before the court is whether the district court erred in ruling that a parent seeking the termination of a voluntary guardianship must prove (1) that he or she is a fit parent and (2) that a change of custody would materially promote the child's best interests and welfare.

Kathleen contends on appeal that the district court erred in applying the rule of law recognized in Criqui and maintains that the Court of Appeals in that case failed to properly apply the parental preference doctrine. Therefore, she asks that we overrule Criqui and terminate the voluntary guardianship established for Nolynn. In the present case, the trial court was of the opinion that Criqui was controlling and applied to the facts here.

The trial court made the following conclusions of law:

"(A) Kansas law has long recognized that the Parental Preference Doctrine provides that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against others who have no permanent or legal right to their custody.

"(B) In cases where a nonparent has been granted the legal and physical custody of the children, the best interests of the minor children will be recognized as an exception to the Parental Preference Doctrine (In re Marriage of Criqui, 14 Kan.App.2d 672, 798 P.2d 69 [1990].

"(C) The Court's review of the facts and principles of law set forth in In re Marriage of Criqui, supra finds that Criqui is controlling and should be applied to the facts of this case.

"(D) The parent seeking the custody change must show not only that she is fit, but also that the change of custody materially promotes the child's best interests and welfare.

"(...

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