In the Matter of the Guardianship and Conservatorship of B.H., D.D., S.D., and V.D., Minor Children.
Under ordinary circumstances, voluntary guardianships and
custodianships may be terminated at any time and for any or
the absence of unusual or extraordinary circumstances, the
parental preference doctrine is to be applied in a custody
dispute over minor children when the dispute is between a
natural parent who has not been found unfit and a nonparent.
Whether extraordinary circumstances exist is a mixed question
of law and fact. The district court makes factual findings
about the circumstances, and it makes a legal conclusion
about whether these circumstances are extraordinary.
Appellate courts review the factual findings to determine
whether they are supported by clear and convincing evidence,
which is to say, whether the reviewing court is convinced
that a rational fact-finder could have found the
determination to be highly probable. The question of law
would be subject to unlimited review.
reviewing court finds no error in the lower court's
determination that extraordinary circumstances exist, then
determinations regarding children's best interests are
reviewed for abuse of discretion.
general, litigants must object to inadequate findings of fact
and conclusions of law in order to give the trial court the
opportunity to correct them. In the absence of an objection,
omissions in findings will not be considered on appeal and
the appellate court presumes the district court found all
facts necessary to support its judgment.
it is impossible to discern from the appellate record the
factors on which the district court relied in finding
extraordinary circumstances, a case may be remanded to the
district court for additional factual findings and legal
conclusions that suffice for meaningful appellate review.
of the judgment of the Court of Appeals in an unpublished
opinion filed September 21, 2018.
from Wilson District Court; Tod Michael Davis, judge.
Judgment of the Court of Appeals reversing the district court
is reversed. Remanded to the district court with directions.
J. Gillett, of Chanute, argued the cause and was on the brief
Sue Hughes, of the Law Dame, LLC, of Paola, argued the cause,
and G. Thomas Harris, of Harris Law Office, of Fredonia, was
on the brief for appellees.
Charles H. Apt III, of Apt Law Offices, LLC, of Iola, was on
the brief as guardian ad litem.
the course of child in need of care (CINC) proceedings,
Alicia and Sam relinquished custody of the four children in
their care to relatives through a legal guardianship, after
which the CINC proceedings were either terminated or became
dormant. Alicia and Sam later sought to terminate the
guardianship. The district court refused to grant them
relief, holding that the best interests of the children
militated against returning custody to Alicia and Sam. The
Court of Appeals disagreed and reversed the district court.
This court granted the guardians' petition for review.
we determine that the district court findings were
insufficient to allow proper appellate review, we remand the
case to the district court for more complete and specific
record informs us that Alicia is the natural mother of S.D.,
V.D., and D.D. Sam is the natural father of S.D., V.D., and
B.H. In 2010, Alicia and Sam were arrested on drug-related
charges. Because all of the children had been living with
Alicia and Sam at the time of the arrest, the children were
placed in temporary foster care.
September 1, 2010, the Wilson County Attorney filed CINC
petitions regarding all four children. On the same day, the
court entered orders giving temporary physical custody of the
children to Sam's cousin, Malinda, and her ...