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SRB-M v. DM

February 20, 2009

IN THE INTEREST OF: SRB-M, A MINOR, DJM, APPELLANT (RESPONDENT),
v.
DM, APPELLEE (PETITIONER), AND JM, APPELLEE (RESPONDENT).



Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge.

The opinion of the court was delivered by: Kite, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Paternal great-grandmother (DM) was the court appointed legal guardian of minor child (SRB-M). DJM, the child‟s mother (Mother) moved to terminate the guardianship and DM resisted the motion. The district court, without finding Mother unfit, entered an order continuing the guardianship. Mother appeals claiming that in order to deny her legal custody of her child and continue the guardianship, the district court had to find, and DM had the burden of proving, that she was an unfit parent. We reverse and remand with directions. ISSUES

[¶2] We consider the following issues:

1. Whether, in order to deny a parent legal custody of her child and continue an existing non-parent guardianship, the district court must find the parent unfit.

2. Whether a non-parent guardian seeking to continue an existing guardianship has the burden of proving the parent is unfit.

FACTS

[¶3] In October of 2005, when SRB-M was one year old, DM filed a petition in district court to establish an emergency temporary and permanent guardianship for the child. DM alleged that the child‟s mother was unable to care for the child because she was incarcerated in Colorado following the revocation of her probation. DM alleged that the child‟s father was 19 years old and unable to care for the child. She further alleged that the child had resided with her since the child was approximately two weeks old.

[¶4] The district court entered an order appointing DM emergency temporary guardian and scheduled a hearing to determine the necessity for a permanent guardianship. Mother and Father consented to the appointment of DM as guardian. Following the hearing, the district court entered an order appointing DM to serve as the child‟s permanent guardian. The child continued to live with DM for the next two years.

[¶5] In September of 2007, Mother filed a motion to terminate the guardianship. She alleged that she was no longer incarcerated, could provide for her child and was able to and wished to provide a safe and loving home for the child. She further alleged that she had never been adjudicated unfit and was a fit and proper parent to have custody of her child. She also asserted that she had a fundamental right to raise her child and, absent a finding that she was unfit, the guardianship must be terminated.

[¶6] DM filed a response in which she asserted that it was not in the child‟s best interest to be placed in Mother‟s custody when Mother had been absent for the child‟s entire life. DM alleged that the child remained in need of a guardian because Mother was unable to care for the child physically or emotionally, was not a mature adult, had not psychologically or physically bonded with the child and had "forfeited her parental responsibilities to provide support." DM asked the district court to continue the guardianship and approve a parenting plan to allow Mother to reintegrate into the child‟s life over time.

[¶7] The district court convened a hearing on the motion at which Mother, DM and others testified. Father appeared at the hearing and, through counsel, concurred in DM‟s request to continue the guardianship. At the close of the hearing, the district court denied the petition to terminate the guardianship, concluding that it was in the child‟s best interest to remain with DM while allowing Mother to gradually re-introduce herself into the child‟s life. Subsequently, the district court entered a written order continuing the guardianship and establishing a visitation schedule "intended to gradually increase the parental responsibility of each parent while still protecting the child‟s need for stability and consistency." Mother appealed and filed a brief setting forth her arguments. Neither DM nor Father filed a responsive brief.

STANDARD OF REVIEW

[¶8] We presume the district court‟s findings of fact are correct and will not set them aside unless they are inconsistent with the evidence, clearly erroneous or contrary to the great weight of the evidence. KO v. LDH (In re MEO), 2006 WY 87, ¶ 17, 138 P.3d 1145, 1150 (Wyo. 2006). We review a district court‟s conclusions of law de novo. Id. Construction of the guardianship statutes involves a question of law which we also review de novo. Id.

DISCUSSION

[¶9] In denying the petition to terminate the guardianship, the district court concluded that Mother‟s fitness as a parent was not the sole factor to be considered; rather, the best interest of the child must also be considered. Considering Mother‟s petition from that perspective, the district court determined the guardianship should continue for the following reasons:

a. That the biological mother‟s history with regard to long term relationships with men is not good; she is pregnant with her third child[,] all having three different fathers. Children need stability.

b. That the biological mother has essentially abandoned her 8-year-old child.

c. That the biological mother‟s decision to use drugs during her pregnancy was poor, using drugs after her pregnancy was [a] poor [decision], and she apparently cared more for the immediate gratification from the ...


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