In re the Guardianship of Phifer
In re the Guardianship of Phifer
Opinion of the Court
The seminal question is whether the Department of Institutions, Social and Rehabilitative Services of Oklahoma has a legal right to intervene as next friend in a guardianship proceeding relating to a five-year-old child whose father has died leaving a sizable estate and whose mother abandoned her at birth. The trial court held it did not and dismissed the petition. DISRS challenges the correctness of this decision.
I
Little Lisa Ann’s mother disappeared shortly after her birth and her whereabouts have remained unknown. Lisa’s father, Henry Phifer, a physician, requested a next door neighbor, Cora May McNeill, to care for the child. She began to do so and has continued to since then.
Phifer died in the spring of 1979. McNeill, a 50-year-old widow subsisting mainly on Social Security Disability benefits and government welfare, filed this action April 19,1979, at 1040 hours asking the court to appoint her guardian of Lisa, and one minute later at 1041 hours, the court appointed her guardian and granted her letters of guardianship.
On May 24, 1979, DISRS filed a petition to intervene in this matter alleging it had the statutory authority and duty under 56 O.S.1981 § 176 and 74 O.S.1978 Supp. § 181 to provide for the welfare of minors without parents, and to intervene as next friend for all parentless minors who have an interest in some estate that must be protected from third party exploitation. The State further alleged that the appointed guardi
McNeill met the attack head on with a motion to dismiss the petition on two grounds: (1) DISRS has no authority to intervene, and (2) more than 30 days have expired since her appointment.
The motion came on for hearing October 2, 1979. On that date the State filed what it called an “Offer of Proof” stating that it was prepared to present witnesses and documents establishing these facts: McNeill “has experienced and may be still experiencing intermittent tingling of the face, both hands and both legs; that she has stated that she had difficulty thinking . . . going to sleep and remaining asleep; she has admitted to despondency; that she was diagnosed by a physician as having difficulty in maintaining her line of thought; that she suffered from a depressive reaction; and that a physician diagnosed McNeill’s major disability as psychiatric and recommended psychiatric evaluation and appropriate therapy... . ”
DISRS also offered to prove that McNeill had received both Aid to Families with Dependent Children and disability benefits from the government; that she lost a home she once owned because she could not make the mortgage payments; and finally, McNeill once told a social worker she (McNeill) “could not think clearly at times because she was not getting enough blood to her brain,” she experienced “attacks” every day, she is disabled, she “suffers from migraine headaches,” and that turning her head normally causes “severe pain” frequently causing her “to become nauseated.”
The trial court sustained McNeill’s motion and dismissed DISRS’ petition.
II
We hold the trial court should have permitted the State to intervene. Lisa is, for all practical purposes, an orphan.
The allegations of DISRS’ petition demonstrate prima facie that it appears to that agency Lisa’s estate is being mismanaged because of the facts pointing to McNeill’s lack of physical and mental capacity to do otherwise.
By our holding we do not intend to disparage or cast aspersions on Cora McNeill’s efforts in nurturing the child during infancy. But performance of this service satisfactorily is not evidence that she is now or will be able to adequately administer the growing child’s changing needs. Of paramount concern, after all, is not the interest of McNeill but that of the child. Of course, a sudden complete severence of the long existing nanny relationship certainly may not be best for Lisa.
But the court should, in the fulfillment of its judicial overseeing function, avail it
The order dismissing DISRS’ petition to intervene is vacated and the cause is remanded with directions to grant it leave to intervene and afford it an opportunity to be heard concerning the relief it seeks.
.The term orphan, according to Webster’s Unabridged Dictionary, usually refers to a child whose parents are both dead, but it also is used to describe a child who has lost only one parent, probably in situations similar to the one we have here. ,
. 58 O.S.1981 § 761 et seq.
. Okla.Const. Art. 25, § 1; 74 O.S.1978 Supp. § 181.
.74 O.S.1978 Supp.'§ 181.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.