November 01, 2012

Guardianship Properly Terminated on Best Interest Standard

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re D.B.J., 2012 WL 4794362 (Mont.).

Trial court did not violate guardian’s due process rights in dependency proceeding by terminating guardianship on the best interests standard. Although state guardianship statute gives an appointed guardian many of the same rights as a parent, other state statutes and case law regarding parental rights show that guardians do not enjoy the same level of protection as parents.

A child was placed in guardianship with his grandmother and stepgrandfather because the parents were incarcerated on drug charges. He was removed years later by a child welfare agency based on physical abuse by the grandfather.

At the shelter care hearing, the judge found the child was dependent and placed him in the agency’s custody. Later that month, the court reviewed a permanency plan prepared for the child with concurrent goals of return to the parents or grandparents.

A few months later, the grandfather had a psychotic episode and was hospitalized. A clinical psychologist determined he would not be a good caretaker for a child. Some months thereafter the state petitioned to remove the goal of return to the grandparents and retain the goal of reunification with the parents. After hearing testimony and viewing evidence, the district court terminated the guardianship finding it was not in the child’s best interests.

The grandfather appealed to the Montana Supreme Court.

On appeal, the grandfather contended that the district court erred in relying on a best interests standard rather than the statutory guidelines on terminating parental rights. The court held that the termination of parental rights section applied to birth or adoptive parents. While a section of the guardianship statute does give guardians many of the same rights as parents, the court cited other sections that allow any person to petition to modify a guardianship merely if it is in the child’s best interests. Further, state and federal case law recognize fundamental rights of parent, but these rights have not been extended to guardians.

Based on the above, the Montana Supreme Court affirmed the order terminating the guardianship.