State ex rel. Secretary of Social & Rehabilitation Services v. Bohrer

189 P.3d 1157, 286 Kan. 898, 2008 Kan. LEXIS 451
CourtSupreme Court of Kansas
DecidedAugust 8, 2008
DocketNo. 95,935
StatusPublished
Cited by21 cases

This text of 189 P.3d 1157 (State ex rel. Secretary of Social & Rehabilitation Services v. Bohrer) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Secretary of Social & Rehabilitation Services v. Bohrer, 189 P.3d 1157, 286 Kan. 898, 2008 Kan. LEXIS 451 (kan 2008).

Opinions

The opinion of the court was delivered by

ROSEN, J.:

This is an action under the Uniform Interstate Family Support Act (UIFSA), K.S.A. 23-9,101 et seq., filed by the Kansas Department of Social and Rehabilitation Services (SRS) against the respondent, Timothy Bohrer. SRS seeks reimbursement of child [900]*900care assistance paid by the State of Iowa to EUen Holmes, the permanent guardian of the respondent’s minor child, S.B. SRS also seeks an order of future child support and an order requiring Bohrer to provide medical coverage for S.B.

The district court ruled that Bohrer was not liable for child support because the permanent guardianship appointment effectively terminated Bohrer’s parental rights and, thus, terminated his duty to support S.B. SRS appealed. A divided panel of the Court of Appeals reversed. State v. Bohrer, No. 95,935, unpublished opinion filed August 3, 2007. We granted Bohrer’s petition for review and hold that the permanent guardianship appointment was not the equivalent of a termination of parental rights and did not relieve Bohrer of his duty to support S.B. Accordingly, we affirm the judgment of the Court of Appeals reversing the district court.

Facts

The underlying facts are not in dispute. S.B. was born to Timothy Bohrer and Tracy Saxton (formerly known as) Bohrer on February 28, 1994. They divorced 1 year later, and physical custody of S.B. alternated between them for several years. In 1999, the State of Kansas initiated a CINC proceeding concerning S.B. S.B. was initially placed into foster care, but by February 2001, S.B. was living in Iowa with her maternal great-grandmother, Ellen Holmes.

SRS filed a motion in the CINC case seeking appointment of Holmes as permanent guardian. On May 25, 2001, Bohrer and Saxton consented to Holmes’ appointment as the permanent guardian of S.B. The district court appointed Holmes as the permanent guardian. Thereafter, the court released S.B. from SRS custody and closed the CINC case.

Procedural Background

On March 23, 2005, SRS filed the present suit seeking reimbursement from Bohrer for funds expended by the State of Iowa on behalf of S.B. and an order for future child support and medical coverage. For the time period from February 2001 to November 2005, the state of Iowa provided public assistance to Holmes for the care of S.B. in excess of $10,000.

[901]*901Bohrer opposed the action, arguing that the appointment of Holmes as S.B.’s permanent guardian, pursuant to K.S.A. 38-1501 et seq., effectively terminated his parental rights to S.B., including his obligation of support. SRS countered that the appointment of a permanent guardian is not the equivalent of a termination of parental rights and does not relieve a natural parent of the obligation to support his or her child. The district court agreed with Bohrer and held that the permanent guardianship terminated Bohrer’s obligation to support S.B. SRS appealed to the Court of Appeals.

While the appeal was pending before the Court of Appeals, the legislature enacted the Revised Kansas Code for Care of Children (Revised Code). L. 2006, ch. 200. The Revised Code specifically states that the appointment of a permanent custodian (formerly “permanent guardian”) without a termination of parental rights does not terminate the parent’s duty to provide child support and medical support. See K.S.A. 2006 Supp. 38-2272(h)(l). After providing the parties an opportunity to submit supplemental briefs on the retroactive application of the recent amendments, a divided panel of the Court of Appeals reversed. The majority applied the provisions of the Revised Code retroactively, holding that the appointment of a permanent guardian under the previous version of the Code did not reheve Bohrer of his common-law duty to support his minor child; therefore, applying the new law retroactively would not prejudice Bohrer’s substantive rights. State v. Bohrer, slip op. at 11.

Judge McAnany dissented, concluding that under the language of the permanent guardianship statutes in effect at the time, the permanent guardian assumed all parental obligations, including support. Because Bohrer had been relieved of the obligation to support S.B., Judge McAnany believed that retroactively applying the new statute imposing a support obligation prejudiced Bohrer’s substantive rights. State v. Bohrer, slip op. at D-2-D-3 (McAnany, J., dissenting).

Discussion

The issue we must determine is whether the appointment of a permanent guardian terminated Bohrer’s obligation to support S.B. [902]*902Resolution of this issue involves interpretation of the statutes concerning permanent guardianship; thus, our review is unlimited. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007) (“The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court’s interpretation.”).

Statutes in effect in 2001

When the permanent guardianship in this case was created in 2001, the Kansas Code for Care of Children (Code) defined a “permanent guardianship” as

“a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining without ongoing state oversight or intervention by the secretaiy. The permanent guardian stands in loco parentis and exercises all the rights and responsibilities of a parent. A permanent guardian may be appointed after termination of parental rights or without termination of parental rights, if the parent consents and agrees to the appointment of a permanent guardian. Upon appointment of a permanent guardian, the child shall be discharged from the custody of the secretaiy.” K.S.A. 2005 Supp. 38-1502(w).

The statutes provided for three different methods of appointing a permanent guardian: (1) by parental consent (K.S.A. 38-1587); (2) after a finding of unfitness but without a termination of parental rights (K.S.A. 2005 Supp. 38-1583[g]); and (3) after termination of parental rights (K.S.A. 38-1584[b][2]). The permanent guardianship in this case was by consent and agreement of the parents, without a finding of unfitness or a termination of parental rights, as provided under K.S.A. 38-1587:

“(a) A permanent guardian may be appointed after a finding of unfitness pursuant to K.S.A. 38-1583 and amendments thereto

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Bluebook (online)
189 P.3d 1157, 286 Kan. 898, 2008 Kan. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-secretary-of-social-rehabilitation-services-v-bohrer-kan-2008.