D.K.S. v. C.S.

2003 UT App 13, 63 P.3d 1284, 466 Utah Adv. Rep. 3, 2003 Utah App. LEXIS 5
CourtCourt of Appeals of Utah
DecidedJanuary 24, 2003
DocketNo. 20010455-CA
StatusPublished
Cited by9 cases

This text of 2003 UT App 13 (D.K.S. v. C.S.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.K.S. v. C.S., 2003 UT App 13, 63 P.3d 1284, 466 Utah Adv. Rep. 3, 2003 Utah App. LEXIS 5 (Utah Ct. App. 2003).

Opinion

OPINION

GREENWOOD, Judge:

¶ 1 This is an appeal from a final order terminating D.K.C. and E.L.C.’s (Grandparents) guardianship of V.K.S. and awarding custody of V.K.S. to her mother, C.S. (Mother).1 We affirm.

BACKGROUND

¶ 2 J.S. (Father) and Mother were married in December 1994 while both were in the Navy. Mother was discharged from the Navy prior to V.KS.’s birth in 1995 and moved into Grandparents’ home where she stayed for [1285]*1285three and a half years. V.K.S. lived in Grandparents’ home from birth until the order terminating guardianship was entered in April 2001. Father never lived with Mother, except for 30 days immediately after V.K.S.’s birth. Father and Mother divorced in 1997.2 Mother was awarded custody of V.K.S. in the divorce proceedings.

¶ 3 During her stay with Grandparents, Mother worked and went to school. Mother, with Grandparents’ assistance, took care of V.K.S., although there is disagreement between the parties as to who bore the greater burden of this responsibility. In 1997, Mother and Father signed a consent to Grandparents’ guardianship of V.K.S. The Petition for Guardianship was based on Mother’s inability to provide adequate health care insurance and Father’s inability to care for V.K.S. while residing in another state. Grandparents petitioned for guardianship because V.K.S. needed medical insurance and they were concerned with Mother’s parenting skills.

¶4 Mother moved out of Grandparents’ home in 1998 without V.K.S. In 1999, Mother filed a petition in district court to remove Grandparents as V.KS.’s guardians. On April 11, 2001, an Order and Findings and Conclusions were entered awarding custody of V.K.S. to Mother and terminating Grandparents’ guardianship.

¶ 5 The trial court found that both Mother and Grandmother had developed a bond of love and affection with V.K.S. However, the trial court also found that there was extreme hostility between Mother and Grandmother, despite Mother’s substantial improvement in her life, resulting in detriment to V.K.S. Mother had married, had a second child, a stable home, a supportive husband, and employment. The trial court concluded that it was in V.KS.’s best interest to be in the custody of Mother.

¶ 6 This appeal followed.

STANDARD OF REVIEW

¶ 7 “When reviewing [trial court determinations regarding the custody of children], we must do our own weighing and make our own decision based on the facts in the record. Nevertheless, the [trial] court is allowed a considerable latitude of discretion in child custody matters, and its judgment will not be disturbed unless we determine the [trial] court has exceeded the scope of permitted discretion or has acted contrary to law.” Davis v. Davis, 2001 UT App 225,¶ 6, 29 P.3d 676 (quotations and citations omitted) (alterations in original). Furthermore, “ ‘[m]atters of statutory interpretation present questions of law which we review for correctness, according no particular deference to the trial court’s interpretation.’ ” State v. Yanez, 2002 UT App 50,¶ 8, 42 P.3d 1248 (quoting State v. Lindsay, 2000 UT App 379, ¶ 4, 18 P.3d 504), cert, denied, 53 P.3d 1 (Utah 2002).

ANALYSIS

¶ 8 Grandparents appeal the order of the district court terminating their guardianship of V.K.S. and awarding custody of V.K.S. to Mother. Grandparents argue, among other things, that (1) the district court erred by according Mother the parental presumption; (2) even if Mother was entitled to the parental presumption, the presumption was rebutted, and therefore, the court erred in not placing the parties on equal footing and determining custody under the “best interest of the child” standard; and (3) the probate court erred in determining that it was in the best interest of V.K.S. to terminate the guardianship.

¶ 9 We begin, however, by addressing the scope of the trial court’s jurisdiction under the Utah Probate Code, specifically those sections addressing the Guardianship of Minors. See Utah Code Ann. §§ 75-5-201 to - 212 (1993 & Supp.2002).3 We note that Utah has adopted the Uniform Probate Code (U.P.C.), Part 2, Guardians of Minors. Thus, [1286]*1286Utah’s statutory language is identical to the U.P.C.4 In general, “[a] person becomes a guardian of a minor by acceptance of a testamentary appointment, through appointment by a local school board under Section 53A-2-202, or upon appointment by the court.” Id. § 75-5-201(l)(a) (Supp.2002). Two requirements must be met prior to the district court appointing a guardian of a minor. First, a court may only appoint a guardian of a minor “if all parental rights of custody have been terminated or suspended by circumstances or prior court order.” Id. § 75-5-204 (1993) (emphasis added). Second, a court may only appoint, as guardian, a person in the “best interest of the minor.’’ Id. § 75-5-206(l)(a) (Supp.2002) (emphasis added). If both requirements are met, the court may then grant guardianship or temporary guardianship. See id. § 75-5-207(2).

¶ 10 In this matter, Grandparents were appointed as guardians by the court.5 There is no record as to whether the probate court determined if Mother’s parental rights were “terminated or suspended by circumstance.” Mother, however, consented to the guardianship and apparently there was no objection at the time guardianship was awarded. The record before us does not include the

complete record of the guardianship proceeding. ... Thus, it is impossible for us to fully review the actions of the trial court in [the guardianship] proceeding. Therefore, we must assume that the trial court determined that [Mother’s] parental rights were suspended by circumstances. Moreover, by acquiescing in the appointment, [Mother] waived [her] right to object to the appointment ....

Jensen v. Bowcut, 892 P.2d 1053, 1056 (Utah Ct.App.1995), cert, denied, 899 P.2d 1231 (Utah 1995); see also In re Mikrut, 175 Ariz. 544, 858 P.2d 689, 691 (Ariz.Ct.App.1993) (stating that appointment of guardian when mother’s parental custody rights may not have been “terminated or suspended may have been error, but the court still had jurisdiction to appoint a guardian” where it could have been corrected by timely appeal).

¶ 11 Once appointed, “[a] guardian’s authority and responsibility terminates upon the death, resignation, or removal of the guardian_” Utah Code Ann. § 75-5-210 (1993) (emphasis added). “Any person interested in the welfare of a ward ... may petition for removal of a guardian on the ground that removal would be in the best interest of the ward.” Id. § 75-5-212(1) (1993) (emphasis added). “After notice and hearing on a petition for removal ... the court may terminate the guardianship and make any further order that may be appropriate.” Id. § 75-5-212(2).

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2003 UT App 13 (Court of Appeals of Utah, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
2003 UT App 13, 63 P.3d 1284, 466 Utah Adv. Rep. 3, 2003 Utah App. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dks-v-cs-utahctapp-2003.