In re Guardianship of Barros, 20040255.

• Decision Date: 13 July 2005
• Docket Number: No. 20040255.,20040255.
• Citation: 2005 ND 122,701 N.W.2d 402
• Parties: In the Matter of GUARDIANSHIP OF Steven Michael BARROS, a Minor. Machelle Barros, Petitioner and Appellant v. Guy and Devra Smestad, Respondents and Appellees.
• Court: North Dakota Supreme Court

701 N.W.2d 402

2005 ND 122

In the Matter of GUARDIANSHIP OF Steven Michael BARROS, a Minor.

Machelle Barros, Petitioner and Appellant v. Guy and Devra Smestad, Respondents and Appellees.

No. 20040255.

Supreme Court of North Dakota.

July 13, 2005.

Lynn M. Boughey, Boughey Law Firm, Minot, N.D., for petitioner and appellant.

Charles G. DeMakis, Olson & Burns P.C., Minot, N.D., for respondents and appellees.

MARING, Justice.

[¶ 1] Machelle Barros ("Shelly") appeals from a trial court order that denied various motions including her motion to reconsider, motion for a new trial, motion to order visitation, motion to reconsider rulings on discovery and specifically ordered "Petitioner's Motion and Request to Terminate the Guardianship is denied." The motions followed the trial court's denial of her petition to rescind the guardianship of her child, Steven Barros. We affirm the trial court's discovery rulings, reverse the denial of the motion to terminate the guardianship, and remand for further proceedings consistent with this opinion.

I

[¶ 2] In July 2002, Shelly petitioned for a guardianship of her son, Steven Barros. In the petition, Shelly stated it was in Steven's best interest to live with his aunt and uncle, the Smestads. After a hearing, the trial court appointed Guy and Devra Smestad guardians of Steven Barros. The trial court noted that Steven needed stability in his life, was insubordinate to his mother, failed to follow her rules, and his best interests would be served by living with the Smestads. In December 2003, Shelly petitioned to rescind the guardianship. At the hearing, Shelly presented evidence showing since the guardianship began she has obtained a new job in Chicago, is able to move into a two bedroom apartment, is secure in her finances and personal life, and has researched the availability of activities for Steven in her residential area. After the hearing, the trial court denied the petition finding there was no statutory basis for rescission and it was in Steven's best interest to remain with the Smestads.

II

[¶ 3] Shelly argues the trial court improperly refused to terminate the guardianship, which she asserts has a practical effect similar to terminating her parental rights. The Smestads argue the trial court properly refused to rescind the guardianship because Shelly did not follow the statutorily prescribed method to terminate a guardianship.

[¶ 4] Shelly filed a "PETITION TO RESCIND GUARDIANSHIP ORDER OF AUGUST 30, 2002." Section 30.1-27-10, N.D.C.C., states: "A guardian's authority and responsibility terminates upon the death, resignation, or removal of the guardian, or upon the minor's death, adoption, marriage, or attainment of majority." Any person interested in the welfare of a ward may bring a petition for resignation or removal of the guardian. N.D.C.C. § 30.1-27-12(1). The petition for removal of a guardian must be based on the grounds "that removal would be in the best interest of the ward." Id. In a custody proceeding, the best interests and welfare of a child are determined by a court's consideration and evaluation of several factors:

a. The love, affection, and other emotional ties existing between the parents and child.

b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.

c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.

d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.

e. The permanence, as a family unit, of the existing or proposed custodial home.

f. The moral fitness of the parents g. The mental and physical health of the parents.

h. The home, school, and community record of the child.

I. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

j. Evidence of domestic violence. In awarding custody or granting rights of visitation, the court shall consider evidence of domestic violence....

k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.

l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.

N.D.C.C. § 14-09-06.2(1). A guardian of a minor "has the powers and responsibilities of a parent who has not been deprived of custody." N.D.C.C. § 30.1-27-09. Because a guardian acts in place of a parent, the best interest factors that are used in custody determinations are also used in guardianship proceedings. See, e.g., In re Estate of Webb, 286 Ill.App.3d 99, 221 Ill. Dec. 285, 675 N.E.2d 192, 194 (1996)

(applying the best interest analysis used in custody determinations to guardianship proceedings); Matter of Guardianship of Stewart, 369 N.W.2d 820, 824 (Iowa 1985) (noting the best interests must be considered in all custody matters).

[¶ 5] Clearly, Shelly's inartfully drawn petition did not use the statutory language for removal of a guardian. But it does specifically request that "the guardianship previously made at her request be rescinded as of the last day of the minor's present academic school year." The trial court erred in concluding the issue of terminating the guardianship was not properly before it. See Kaiser v. State, 417 N.W.2d 175, 177 (N.D.1987)

(stating, "it is not the label which controls but, rather, the effect"). The petitioner complicated the issue by asserting that the best interests consideration was not necessary to "rescind" the guardianship, but the best interest factors were effectively tried. At the hearing, the trial court heard a large amount of testimony related to the best interest factors. Because the trial court effectively tried the best interests of the ward, it erred by failing to consider removal of the guardians, rather than rescission of the original order, and to make findings of fact based on those factors to decide whether the Smestads should be removed as guardians. We reverse the trial court's denial of the petition. Because this is a case of first impression in this jurisdiction, we further consider the burdens of proof under the statutory framework for removal of a guardian.

III

[¶ 6] Shelly argues because she has a fundamental right as a parent to custody of Steven, the trial court erred by placing the burden of proving that the guardianship should be terminated on her. She argues that, after proving the circumstances leading to the guardianship have changed, the burden must shift to the Smestads to prove by clear and convincing evidence that it is in Steven's best interests to continue the guardianship. The Smestads argue the burden of proof should be the same as custody modifications because the guardians are acting as parents. They argue the burden should be on the moving party to prove termination would be in the best interests of the child.

[¶ 7] We have not previously decided the issue of which party has the burden of proof in a proceeding to terminate a voluntary guardianship brought by a parent who has not been adjudicated unfit. Jurisdictions that have considered this issue place the burden of proof on the petitioner to prove the impediments leading to the guardianship have been removed. See, e.g., Guardianship of Simpson, 67 Cal. App.4th 914, 79 Cal.Rptr.2d 389, 401 (1998)

; Matter of Guardianship of M.R.S., 960 P.2d 357, 361 (Okla.1998).

[¶ 8] California applies a preponderance of the evidence standard in guardianship termination proceedings when the parent has not been adjudicated unfit. Guardianship of Simpson, 79 Cal.Rptr.2d at 401. The burden is on the parent to show "overall fitness ... sufficient to overcome the inherent trauma of removing a successful caregiver." Id. at 400. The court noted this is usually an easy burden to prove because either the parent is released from the hospital or the trouble causing the guardianship has been removed. Id. at n. 14. In Illinois, a parent must also show a change in circumstances warranting the termination. In re Estate of Webb, 286 Ill.App.3d 99, 221 Ill.Dec. 285, 675 N.E.2d 192, 194 (1996). We conclude Shelly must initially prove, by a preponderance of the evidence, the impediments leading to the creation of the guardianship have been removed. See, e.g., Guardianship of Simpson, 79 Cal.Rptr.2d at 400-01.

[¶ 9] If the initial burden is met, then we must decide who has the burden of persuasion in applying the best interest factors. It is undisputed that parents have a fundamental right to the custody and control of their children. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). We have repeatedly addressed the constitutional nature of parents' rights in raising their children.

Parents have a fundamental, natural right to their children which is of constitutional dimension. In re L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573; Kleingartner v. D.P.A.B., 310 N.W.2d 575, 578 (N.D. 1981). The right is paramount. In re R.D.S., 259 N.W.2d 636, 638 (N.D.1977). A parent's paramount and constitutional right to the custody and companionship of their children is superior to that of any other person. Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D.1986); Hust v. Hust, 295 N.W.2d 316, 318 (N.D.1980); Boeddeker v. Reel, 517 N.W.2d 407, 409 (N.D.1994).

Hoff, 1999 ND 115, ¶ 10, 595 N.W.2d 285. However, that right is not absolute and...