In re Guardianship of D.M.S.

379 N.W.2d 605, 1985 Minn. App. LEXIS 4818
CourtCourt of Appeals of Minnesota
DecidedDecember 31, 1985
DocketNo. CX-85-994
StatusPublished
Cited by1 cases

This text of 379 N.W.2d 605 (In re Guardianship of D.M.S.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Guardianship of D.M.S., 379 N.W.2d 605, 1985 Minn. App. LEXIS 4818 (Mich. Ct. App. 1985).

Opinions

OPINION

HUSPENI, Judge.

Appellants, .the mother and aunt of A.S. and D.M.S., appeal from the probate court’s denial of their petition to remove respondent as guardian of the children and to appoint appellant aunt as guardian. On appeal, appellants argue (1) that the probate court lacks jurisdiction to continue the guardianship and (2) that the best interests of the children require that they be returned to their family. We remand.

FACTS

On June 20, 1979, the mother of A.S. and D.M.S. entrusted the care of her children to a woman unrelated and unknown to her. The facts surrounding this transfer of care are not entirely clear. There is, however, some indication that mother was not able to care for her children at the time the guardian was appointed and offered to “sell” them for two beers. Mother consented to guardian’s appointment.

The court accepted natural mother’s signature on a consent form as a sufficient basis to give the proposed guardian custody of A.S. and D.M.S. Mother never appeared before the probate court and the court never inquired into her fitness as a parent. There is no indication on the record that the probate court examined the suitability of the guardian to have custody of A.S. and D.M.S. Formal letters of General Guardianship were issued by the probate court on August 21, 1979. At the time of this appointment, A.S. was three months old and D.M.S. was sixteen months old. The children have remained with their guardian since this time.

What stability and homelife A.S. and D.M.S. have known in the past six years has been provided by their guardian who is a sixty-year-old single woman. She has cared for the children while receiving AFDC for her and her grandchild’s support but only General Assistance for the support of A.S. and D.M.S. She and the children have lived both in Florida and in Minnesota during this six year period. When the court asked her exactly when she had lived in Florida and when in Minnesota, the guardian was unable to remember or give any details about how long or when she had lived in either of the two locations.

A hearing on appellants’ petition was held on April 15, 1985. The guardian testified that she was interested in adopting the children but had not as yet taken steps to do so, because the Welfare Department told her she must place the children in the custody of the State before initiating adoption proceedings.

The only evidence considered by the court was the testimony of mother, aunt, the guardian and two of her daughters. No information from outside sources was considered. Counsel for the guardian subpoenaed the children's school records and a report from their physician and made these documents available to the court at the hearing. The court indicated it was not necessary to submit this evidence.

Evidence presented at the hearing on the subject of the children’s emotional and physical welfare included testimony by the guardian that they had been enrolled in the school systems in both Florida and Min[607]*607nesota and that D.M.S. has been held back a grade by the Florida school system. At the time of the hearing, the guardian, A.S. and D.M.S. were living in Minneapolis and sharing a house with one of the guardian’s daughters and her three children. Her daughter was also unemployed at this time and the sole source of income for her and her children was AFDC. The guardian was also caring for the child of one of her other daughters who was chemically dependent and unable to care for her child.

ISSUES

1. Did the probate court have jurisdiction to continue the guardianship?

2. Did the probate court err in finding it was not in the children’s best interests to remove the guardian?

ANALYSIS

I.

Appellants argue that because mother’s parental rights are in effect being determined in this action, it is the juvenile court, not probate court, which has exclusive jurisdiction of the issues here. Under the particular circumstances of this case, we cannot agree.

In 1979 the probate court properly assumed jurisdiction under Minn.Stat. § 525.-54 (1978) when it appointed the guardian for A.S. and D.M.S. That statute provided that:

The court may appoint one or two persons suitable and competent to discharge the trust as guardians of the person or estate or of both of any person who is a minor * * *.

Minn.Stat. § 525.54, subd. 1 (1978).

Subsequent to the guardian’s appointment, Minn.Stat. § 525.6165 (1984) replaced section 525.54 with respect to the appointment of guardians for minors. Section 525.6165 permits a probate court to appoint a guardian for a minor only:

if all parental rights of custody have been terminated or suspended by prior court order.

Minn.Stat. § 525.6165 (1984).

Therefore, the action taken by the probate court in 1979 would not be possible today. We must determine whether once having properly exercised its jurisdiction on appointing a guardian, the probate court continues to have jurisdiction over the guardian and ward to assure that the ward’s interests are protected. We believe it does. See, e.g., Schmidt v. Hebeisen, 347 N.W.2d 62 (Minn.Ct.App.1984). Further, Minn.Stat. § 525.6195 (1984) provides that if after notice and hearing a probate court determines that removal of a guardian would be in the best interests of a child, it may remove that guardian.

Thus, we conclude that the probate court had jurisdiction to hold the April 15 hearing in response to appellants’ petition.

II.

Appellants next contend that the probate court erred in finding that removal of the guardian was not in the best interests of the children.

Appellants raise troubling issues. A review of both statutory and case law discloses strong public policy interests which favor natural parents as custodians of their minor children and which recognize the importance of fostering and nurturing the relationship between parent and child. Repealed Minn.Stat. § 525.54 (1978), which was applicable to this case when the guardian was appointed, provided:

Nothing herein contained shall * * * abridge the rights of the father and mother, if suitable and competent, as the natural guardians of their minor children.

This philosophy was preserved in Minn. Stat. § 525.6165 (1984) which permits the probate court to appoint a guardian for a minor only:

[608]*608if all parental rights of custody have been terminated or suspended by prior court order.

These statutory provisions reflect the long recognized public policy stated in In re Welfare of A.R.W., 268 N.W.2d 414, 417 (Minn.), cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978):

that the best interests of the child are normally served by parental custody.

While recognizing the strong public policy favoring natural parents as guardians of their children, we also recognize that in this case, mother seeks custody not for herself but for her sister, the natural aunt of the children.

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Related

In Re the Welfare of M.J.L.
582 N.W.2d 585 (Court of Appeals of Minnesota, 1998)

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Bluebook (online)
379 N.W.2d 605, 1985 Minn. App. LEXIS 4818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-guardianship-of-dms-minnctapp-1985.