Estate of Guevara
Estate of Guevara
Opinion of the Court
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.
The petition to remove the Bennetts as guardians of Kyndria and Alex was filed by Claude and Carolyn North
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.
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.
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
The GAL made it clear that Kyndria and Alex were much more reserved with the Bennetts. She noticed Kyndria and Alex were scared to visit the Norths because they feared how the Bennetts would react to their opportunity to visit with the Norths. She also claimed that when asked why they liked living with the Bennetts, Kyndria and Alex responded about the “things” they liked but they did not talk about the people or the relationships. In contrast, the children stated they liked living with the Norths because they sincerely enjoyed the Norths, “[t]hey like playing the instruments. They like cooking. They baked pies and make cookies with Carolyn. They went places with Carolyn.”
As to the relationship between Mother and the children, Kyndria and Alex related to the GAL that they enjoyed their mother’s “hugs and kisses.” As a result of all of the evidence, the GAL believed that Kyndria and Alex love Mother and it was very important for them to maintain their relationship with her; she was concerned that the Bennetts would not foster the relationship between the children and Mother. The GAL believed the most important thing for Kyndria and Alex was to concentrate on school, concentrate on making a good adjustment to whatever living situation they were in, and maintain a healthy relationship with Mother.
The GAL concluded:
I think it’s important that whoever the children are placed with have the approval and support of the mother so that when discipline problems come up or the happy occasions — weddings, babies, high school graduations, band concerts, Christmas plays — that there can be some unity between the mother and the — the family and the — the—that they’re placed with and the children.
I just — I don’t think they’re going to have that if they stay with the Bennetts and I’m concerned about that. I’ve seen these children with the Bennetts, I’ve seen these children with the Norths and I’ve seen these children with their mother. And they are far more comfortable, far more relaxed and far more uninhibited when they’re with the Norths and with their mother.
The trial court found that when the Ben-netts became co-guardians for Kyndria and Alex problems began almost immediately, that the Bennetts were making no effort to establish contact between the children and Mother. Although the Bennetts testified that the Norths had encouraged them to adopt the children, the Norths disputed this claim. Evidence showed that the Bennetts met with an adoption attorney as early as late May and were advised to accommodate, but not encourage, visitation with Mother. The trial court stated that regardless of what the Norths had told the Bennetts concerning the adoption, by June 2004, the Norths were very much opposed to the idea of the Bennetts adopting the children.
The trial court found that continued contact between Mother and the children was of the “utmost importance,” and the Ben-netts had made visitation with Mother difficult. As a result, the trial court found the Bennetts were unsuitable guardians, in part because the Bennetts were still clearly interested in adopting the children even though adoption would not have been in the best interest of the children. According to the trial court, Kyndria and Alex have a family and they should be returned to it, “[i]t may not be a picture perfect
The Bennetts bring one point on appeal, claiming substantial evidence does not support the judgment and it is a misapplication of the law to remove the guardians because no evidence existed to show that the Bennetts “failed to perform their duties as guardians, mismanaged the children’s estate, acted to endanger the children, or committed any other act” necessary for the removal of the guardians as set forth in sections 475.110 and 473.140.
becomes mentally incapacitated or is convicted of a felony or other infamous crime, or becomes an habitual drunkard, or in any manner incapable or unsuitable to execute the trust reposed in him, or fails to discharge his official duties, or wastes or mismanages the estate, or acts so as to endanger any corepresentative, or fails to answer any citation and attachment to make settlement....
The Bennetts contend that their actions do not fall within any of those specific provisions and that the facts of this case are similar to Oliva v. Oliva, 113 S.W.3d 269 (Mo.App. W.D. 2003), where the Western District of this Court reversed the removal of a ward’s guardian based upon grounds that no substantial evidence supported a finding that the guardian had failed to perform his duties. The Ben-netts’ reliance on Oliva is misplaced. Other than the reversal of the removal of a guardian, the facts are completely inappo-site. Oliva involved a situation in which the court, at the request of an elderly woman, appointed the woman’s son to be her limited guardian and conservator. Id. at 270. At issue was whether the court properly ordered that the least restrictive environment for the woman was in a nursing home and whether a public administrator should be appointed as a guardian and conservator because of the “family discord.” Id. at 272-73. The court found it an abuse of discretion because due consideration was not given for the appointment of a family member or the ward’s nominee. Id. at 274. Nothing in that decision resembles the issues before this Court; however, it is interesting to note that the appellate decision is based upon section 475.082.5 for the appropriate standard for removal of the guardian or conservator.
Section 475.082.5 provides, in pertinent part:
If it appears to the court as part of its review or at any time upon motion of any interested person ... that the guardian or conservator is not discharging his responsibilities and duties as required by this chapter or has not acted in the best interests of his ward or pro-tectee, the court may order that a hearing be held and direct that the guardian or conservator appear before the court.... At the conclusion of the hearing, if the court finds that the guardian or conservator is not discharging his duties and responsibilities as required by this code, or is not acting in the best interests of the ward or protectee, the court shall enter such orders as it deems appropriate under the circumstances. Such orders may include the removal of the guardian or conservator....
(emphasis added).
Although the Bennetts claim the court did not find any statutory ground pursuant
We find Pittman to be well reasoned and adopt its reasoning in our decision. Section 475.110 is but one statutory provision for the removal of a guardian or conservator and simply provides that a guardian or conservator may also be removed on the same grounds as is provided for the removal of a personal representative, section 473.140. Section 475.110 is not the exclusive means of the removal of a guardian or conservator as section 475.082, which calls for the review of the status of persons under guardianship or conserva-torship, provides that the court must ascertain whether the guardian or conservator is discharging his responsibilities and duties in accordance with this chapter. Section 475.082.5 specifically states that the court may enter an order that it deems appropriate, including the removal or termination of the guardian or conservator, when it finds the guardian or conservator is not discharging his duties and responsibilities as required by this code or is not acting in the best interests of the ward or protectee. An interpretation of section 475.082.5 to allow the modification of a guardianship on the basis that the guardian is not acting in the best interest of the ward conforms to other sections of the probate code. For instance, section 475.110 provides that a minor ward, who has attained the age of fourteen years, may petition to have his guardian removed if it is for the best interest of the ward. Section 475.083 was amended in 2001 to include a provision allowing for the termination of a guardianship or conservatorship if the court finds that a parent is fit, suitable and able to assume the duties of guardianship and it is in the best interest of the minor that the guardianship be terminated. Under that provision, the court does not have to find an additional statutory ground of a failure on the part of the guardian.
Although we find no merit to the Bennetts’ claim that the judgment is not supported by substantial evidence and a misapplication of sections 475.110 and 473.140, because this involves the custody of children we have reviewed the record in its entirety and find that substantial evidence supports the determination that the guardianship of the Bennetts should be terminated. From the outset, we note that this was a private guardianship, brought by Mother’s own guardian, with the purpose of finding someone who resided closer to Mother to care for the children so that visitation with Mother could be facilitated. We give due regard to the trial court’s opportunity to judge the credibility of the witnesses. In re Moreau, 18 S.W.3d 447, 449 (Mo.App. S.D. 2000). The
The judgment is affirmed.
. The whereabouts of Juan Guevara are unknown.
. Carolyn North is also the guardian of Deloris Guevara ("Mother"), the biological mother of Alex and Kyndria, who suffers from schizophrenia. Carolyn North signed the petition
. Carolyn North had confidence in Gary Anderson because Mother had attended the Church of Christ for a considerable time growing up and Carolyn's father had been an elder with the church.
. Mother moved back to Springfield in late September 2004, because she saw very little of her immediate family while living in the Edgewood facility in Raytown and she wanted to be closer to the Norths. Mother began living at Victory House, a facility that would help her transition to independent living.
. All references to statutes are to RSMo 2000, unless otherwise specified.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.