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In re Guardianship and Conservatorship of B.H.

Supreme Court of Kansas

June 7, 2019

In the Matter of the Guardianship and Conservatorship of B.H., D.D., S.D., and V.D., Minor Children.

         SYLLABUS

         1. Under ordinary circumstances, voluntary guardianships and custodianships may be terminated at any time and for any or no reason.

         2. In 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.

         3. 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.

         4. the 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.

         5. In 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.

         6. When 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed September 21, 2018.

         Appeal 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.

          John J. Gillett, of Chanute, argued the cause and was on the brief for appellants.

          Andrea 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.

          OPINION

          Rosen, J.

         During 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.

         Because 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 findings.

         Facts

         The 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.

         On 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 ...


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