Estate of Guevara

189 S.W.3d 598, 2006 Mo. App. LEXIS 171, 2006 WL 337344
CourtMissouri Court of Appeals
DecidedFebruary 15, 2006
DocketNo. 26797
StatusPublished

This text of 189 S.W.3d 598 (Estate of Guevara) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Guevara, 189 S.W.3d 598, 2006 Mo. App. LEXIS 171, 2006 WL 337344 (Mo. Ct. App. 2006).

Opinion

NANCY STEFFEN RAHMEYER, Presiding Judge.

James Bennett and Loralee Bennett (“the Bennetts”) appeal a judgment of the Probate Division of the Circuit Court of Greene County, Missouri, entered December 27, 2004. The judgment orders the removal of the Bennetts as guardians of minors, Kyndria Guevara (“Kyndria”), born May 30, 1993, and Alex Guevara (“Alex”), born May 29, 1994. Kyndria and Alex are the biological children of Deloris and Juan Guevara.1

The petition to remove the Bennetts as guardians of Kyndria and Alex was filed by Claude and Carolyn North2 (“the [600]*600Norths”), the former guardians of the children. The petition alleged the following: (1) the Bennetts had failed to act in the best interests of Kyndria and Alex by limiting and/or denying contact between the children and their biological family; (2) the Bennetts were not suitable to exercise the trust reposed in them due to- their actions to deny the children contact with their biological family; (3) before being appointed as guardians, the Bennetts assured Mother that she would have contact with the children and enjoy free interaction with the children; (4) immediately upon being appointed successor co-guardians, the Bennetts began to decrease the frequency and duration of contact between the children and their biological family; (5) the Bennetts were now trying to adopt Kyndria and Alex and permanently sever any relationship between the children and their biological family; (6) James Bennett stated that there will be a long court battle regarding the adoption of the children thereby intimidating the natural mother and former co-guardians; and (7) Mother was not told prior to the appointment of the Bennetts as guardians that Loralee Bennett traveled extensively as part of her job and that the children would be cared for primarily by James Bennett. The Norths also requested that upon removal of the Bennetts as co-guardians that the Norths be reappointed as successor co-guardians. Hearings were held December 15 and 16, 2004. The trial court removed the Bennetts as co-guardians and re-appointed the Norths as co-guardians.

A review of the record shows that Mother had lived in the Kansas City, Missouri, area for most of her life until July 2002, when she and her children moved to Springfield. Mother and the children lived with the Norths until Mother began living in a facility in Nixa, at which point the children continued living with the Norths. On September 24, 2002, the Norths were appointed by the court to serve as co-guardians for Alex and Kyndria. In the care of the Norths, Kyndria and Alex did well in school, participated in activities, had friends, and attended church. The children remained close to their mother and while Mother was in the Nixa facility she visited with her children about every ten days. Claude North had a heart attack in August 2003, and the contact between Mother and her children decreased.

Carolyn North decided to place Mother in a facility in Raytown, a suburb of Kansas City, due to the stress of her husband’s heart attack and the fact that few of Mother’s family members visited her in Nixa. Mother moved to the Edgewood facility in Raytown in March of 2004; her immediate family lived in that area. Carolyn North did not consider any of the children’s relatives to be suitable guardians of the children; therefore, she commenced a search for someone in the Kansas City area to care for Kyndria and Alex in order for the children to be able to visit with their mother more frequently. She contacted Gary Anderson, an elder at the Church of Christ, and asked him if he believed there was a family in his church willing to be guardians of the children.3 The elders selected the Bennetts. The Bennetts, with the consent of the Norths, replaced the Norths as co-guardians, and Kyndria and Alex went to live with the Bennetts on May 20, 2004.

[601]*601Mother and the Norths began having trouble contacting the children almost immediately after the children went to live with the Bennetts because the Bennetts were intentionally discouraging contact and visitation. James Bennett admitted that little more than a week after the children arrived in their home, he and his wife contacted an adoption attorney. The adoption attorney advised the Bennetts to accommodate visitation between Mother and her children when initiated by Mother, but not to encourage visitation themselves. The attorney told the Bennetts that in order to adopt Kyndria and Alex, the children could not have contact with Mother for a period of six months. The Bennetts only allowed one of the children to speak with Mother when she called. Mother was not invited to attend a birthday party held by the Bennetts, but other members of Mother’s family living in the area were invited. The children saw Mother only two times between June, July, and August, even though Mother lived near the Ben-netts.

The Norths became seriously concerned in June 2004, that the Bennetts were not appropriate guardians as they learned more about their intentions. The Norths learned that on June 1, the Bennetts arranged a meeting with Mother and told her that they wanted to adopt Kyndria and Alex. James Bennett also told Carolyn North in early June that he and his wife had chosen new names for the children and planned on obtaining new birth certificates, so no evidence of Mother or the children’s father would exist. Carolyn North responded that she did not want them to adopt Kyndria and Alex. She called Gary Anderson to tell him that they were definitely not interested in having the Bennetts adopt the children. The Norths realized in early August that Mother had only had two opportunities to see the children since they began living with the Ben-netts, once on June 1, 2004, and then at church on July 18, 2004; they sent a letter to the court and a subsequent petition asking for the removal of the Bennetts.4 The court appointed a guardian ad litem (“GAL”) for the children.

The GAL testified that she believed it would be best for the children if the Ben-netts were removed as guardians. She was concerned with the fact that the Ben-netts accepted a role as guardians, but from the beginning their intention was to adopt the children. The GAL noticed that the children’s records indicated that they had dental problems, previous medical problems, previous counseling, previous allegations of sexual abuse, previous allegations of physical abuse and neglect, and when she first spoke with the Bennetts she was “very, very surprised” that the Ben-netts had made no effort to have the children seen by a doctor, dentist, psychologist or counselor. Instead, the Bennetts had taken the kids on very expensive vacations in the summer, which made the GAL question the motives of the Bennetts. The GAL was also concerned about the children’s transition and believed that the children needed some support from the Norths in order to make a successful transition, but this was not possible. The Ben-netts were very candid and explained to her that they were not willing to make arrangements with the Norths or Mother unless they initiated it, or, as James Bennett stated, if they “[s]how[ed] up at our doorstep.” James Bennett further testi[602]*602fied that it was in the best interest of the children to adopt them even though adoption was not an option at the time of the hearing and he was not receptive to co-guardianship with the Norths or anyone else.

The GAL made it clear that Kyndria and Alex were much more reserved with the Bennetts.

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Related

In Re the Estate of Juppier
81 S.W.3d 699 (Missouri Court of Appeals, 2002)
In Re Estate of Pittman
16 S.W.3d 639 (Missouri Court of Appeals, 2000)
Oliva v. Oliva
113 S.W.3d 269 (Missouri Court of Appeals, 2003)
Council v. Royster
18 S.W.3d 447 (Missouri Court of Appeals, 2000)

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Bluebook (online)
189 S.W.3d 598, 2006 Mo. App. LEXIS 171, 2006 WL 337344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-guevara-moctapp-2006.