State of Kan. ex rel. Sec. of Srs v. Bohrer, No. 95,935.
| Citation | 189 P.3d 1157 |
| Decision Date | 08 August 2008 |
| Docket Number | No. 95,935. |
| Parties | STATE OF KANSAS/STATE OF IOWA, ex rel., SECRETARY OF SOCIAL AND REHABILITATION SERVICES, and Ellen Holmes, Appellants, v. Timothy R. BOHRER, Appellee. |
| Court | United States State Supreme Court of Kansas |
Randy M. Barker, of Kansas Department of Social and Rehabilitation Services, argued the cause and was on the brief for the appellant.
William R. Griffith, of Wichita, argued the cause and was on the brief for the appellee.
This is an action under the Uniform Interstate Family Support Act (UIFSA), K.S.A. 23-9,101 et seq., filed by the Kansas Department of Social and Rehabilitation Services (SRS) against the respondent, Timothy Bohrer. SRS seeks reimbursement of child care assistance paid by the State of Iowa to Ellen Holmes, the permanent guardian of the respondent's minor child, S.B. SRS also seeks an order of future child support and an order requiring Bohrer to provide medical coverage for S.B.
The district court ruled that Bohrer was not liable for child support because the permanent guardianship appointment effectively terminated Bohrer's parental rights and, thus, terminated his duty to support S.B. SRS appealed. A divided panel of the Court of Appeals reversed. State v. Bohrer, No. 95,935, unpublished opinion filed August 3, 2007. We granted Bohrer's petition for review, and hold that the permanent guardianship appointment was not the equivalent of a termination of parental rights and did not relieve Bohrer of his duty to support S.B. Accordingly, we affirm the judgment of the Court of Appeals reversing the district court.
The underlying facts are not in dispute. S.B. was born to Timothy Bohrer and Tracy Saxton (formerly known as) Bohrer on February 28, 1994. They divorced 1 year later, and physical custody of S.B. alternated between them for several years. In 1999, the State of Kansas initiated a CINC proceeding concerning S.B. S.B. was initially placed into foster care, but by February 2001, S.B. was living in Iowa with her maternal great-grandmother, Ellen Holmes.
SRS filed a motion in the CINC case seeking appointment of Holmes as permanent guardian. On May 25, 2001, Bohrer and Saxton consented to Holmes' appointment as the permanent guardian of S.B. The district court appointed Holmes as the permanent guardian. Thereafter, the court released S.B. from SRS custody and closed the CINC case.
On March 23, 2005, SRS filed the present suit seeking reimbursement from Bohrer for funds expended by the State of Iowa on behalf of S.B., and an order for future child support and medical coverage. For the time period from February 2001 to November 2005, the state of Iowa provided public assistance to Holmes for the care of S.B. in excess of $10,000.
Bohrer opposed the action, arguing that the appointment of Holmes as S.B.'s permanent guardian, pursuant to K.S.A. 38-1501 et seq., effectively terminated his parental rights to S.B., including his obligation of support. SRS countered that the appointment of a permanent guardian is not the equivalent of a termination of parental rights and does not relieve a natural parent of the obligation to support his or her child. The district court agreed with Bohrer and held that the permanent guardianship terminated Bohrer's obligation to support S.B. SRS appealed to the Court of Appeals.
While the appeal was pending before the Court of Appeals, the legislature enacted the Revised Kansas Code for Care of Children (Revised Code). L.2006, ch. 200. The Revised Code specifically states that the appointment of a permanent custodian (formerly "permanent guardian") without a termination of parental rights does not terminate the parent's duty to provide child support and medical support. See K.S.A. 2006 Supp. 38-2272(h)(1). After providing the parties an opportunity to submit supplemental briefs on the retroactive application of the recent amendments, a divided panel of the Court of Appeals reversed. The majority applied the provisions of the Revised Code retroactively, holding that the appointment of a permanent guardian under the previous version of the Code did not relieve Bohrer of his common-law duty to support his minor child; therefore, applying the new law retroactively would not prejudice Bohrer's substantive rights. State v. Bohrer, slip op. at 11.
Judge McAnany dissented, concluding that under the language of the permanent guardianship statutes in effect at the time, the permanent guardian assumed all parental obligations, including support. Because Bohrer had been relieved of the obligation to support S.B., Judge McAnany believed that retroactively applying the new statute imposing a support obligation prejudiced Bohrer's substantive rights. State v. Bohrer, slip op. at D-2-D-3 (McAnany, J., dissenting).
The issue we must determine is whether the appointment of a permanent guardian terminated Bohrer's obligation to support S.B. Resolution of this issue involves interpretation of the statutes concerning permanent guardianship; thus, our review is unlimited. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007) ( ).
Statutes in effect in 2001
When the permanent guardianship in this case was created in 2001, the Kansas Code for Care of Children (Code) defined a "permanent guardianship" as
The statutes provided for three different methods of appointing a permanent guardian: (1) by parental consent (K.S.A. 38-1587); (2) after a finding of unfitness but without a termination of parental rights (K.S.A.2005 Supp. 38-1583[g]); and (3) after termination of parental rights (K.S.A. 38-1584[b][2]). The permanent guardianship in this case was by consent and agreement of the parents, without a finding of unfitness or a termination of parental rights, as provided under K.S.A. 38-1587:
2006 amendments
The Revised Code was enacted in 2006, and went into effect January 1, 2007. See L.2006, ch. 200, sec. 121. The pertinent new statutes are set out below:
K.S.A.2006 Supp. 38-2202(w) replaced the term "permanent guardian" with "permanent custodian," which is defined as "a judicially approved permanent guardian of a child pursuant to K.S.A.2006 Supp. 38-2272, and amendments thereto."
K.S.A.2006 Supp. 38-2272, governing the appointment of a permanent custodian, provides in relevant part:
"(a) A permanent custodian may be appointed:
(1) With the consent and agreement of the parents and approval by the court;
(2) after a finding of unfitness pursuant to K.S.A.2006 Supp. 38-2269, and amendments thereto; or
(3) after termination of parental rights pursuant to K.S.A.2006 Supp. 38-2270, and amendments thereto.
. . . .
"(c) Subject to subsection (d), a permanent custodian shall stand in loco parentis and shall exercise all of the rights and responsibilities of a parent except the permanent custodian shall not:
(1) Consent to an adoption of the child; and
(2) be subject to court ordered child support or medical support.
. . . .
"(e) Absent a judicial finding of unfitness or court-ordered limitations pursuant to subsection (d), a permanent custodian may share parental responsibilities with a parent of the child as the permanent custodian determines is in the child's best interests. Sharing parental responsibilities does not relieve the permanent custodian of legal responsibility for the child.
. . . .
"(h) If a permanent custodian is appointed after a judicial finding of parental unfitness without a termination of parental rights, the parent shall retain only the following rights and responsibilities:
(1) The obligation to pay child support and medical support; and
(2) the right to inherit from the child.
(3) The right to consent to adoption of the child. All other parental rights transfer to the permanent custodian.
"(i) If a permanent custodian is appointed after termination of parental rights, the parent retains no right or responsibilities to the child."
Just as with the previous statutes concerning permanent guardianship, the Revised Code provides for the appointment of a permanent custodian in three ways: by consent of the parents; after a finding of unfitness but without termination of parental rights; and after a termination of parental rights. Unlike the Code provisions concerning permanent guardianship however, the Revised Code specifically states that where a permanent custodian is appointed without a termination of parental rights, the parent retains the obligation to support his or her minor child.
Consideration of amendments made while an appeal is pending
When an applicable statute is amended while an appeal is pending, and counsel for both sides have had an opportunity to brief and argue the amended statute, the appellate court will consider and construe the amended version of the statute. State ex rel. Stephan v. Board...
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