Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, October 7, 2005

Case Law Development: Parent's Must Prove Best Interests of the Child to Terminate Voluntary Guardianships

Appellate courts in Missouri and Tennessee this week decided cases in which biological parents had voluntarily consented to have family members act as their children’s guardians and the parents are now asking the court to return the children.  In both cases the courts held that the best interests of the child required keeping the guardianship in place, despite the fact that the parents were now able and willing to care for their children.  The Tennessee case also examined the grounds for termination of parental rights when a parent has voluntarily transferred custody of a child to a relative.

The Missouri case involved a father who, during the last year of his wife's terminally illness, had his wife's mother take in his daughters (twin 9 year olds and 3 year old).  He consented to a guardianship soon after his wife’s death so that the grandmother could act on the children’s behalf.  Two years later, he asked the court to terminate the guardianship as he had recovered from his grief and was ready to have the children back.  The court held that, to terminate a guardianship, the court must find not only that the parent was fit, able and willing to care for the children but that terminating the guardianship would be in their best interests.  The court affirmed the trial court’s finding that, while father was fit, able and willing, continued guardianship with grandmother was in the children’s best interests. 

Bailey v. Schnieders, 2005 Mo. App. LEXIS 1444 (October 4, 2005)
Opinion on the web at (last visited October 5, 2005 bgf)

The Tennessee case involved a mother who had given custody of her colicky newborn to her aunt while she “got her life together.”  Aunt raised the child as her own and child had bonded with the aunt and thrived.  Nearly 10 years later, Mother moved to regain custody.  Aunt countered with a motion to terminate Mother’s parental rights.  The appellate court affirmed the trial court’s finding that Mother had failed to prove a change in circumstances justifying modification of custody in the best interests of the child. It reversed the trial court’s termination of Mother’s parental rights, however, because there was not clear and convincing evidence of grounds for termination. 

The the Matter of K.C., Jr., 2005 Tenn. App. LEXIS 636 (October 4, 2005)
Opinion on the web at (last visited October 5, 2005 bgf)

On the termination case, the appellate court found that the trial court erred in finding clear and convincing evidence establishing grounds for termination of Mother’s parental rights.  The court found that while Mother had failed to pay child support, the court noted that the failure, given Mother’s poor work history and understanding of her obligations did not rise to the level of willfulness required by the law. 

Aunt also argued the alternative ground of “persistence of conditions.” Mother argued that the language of the statute indicated that this provision should only apply when a child has been removed by the department of children’s services for abuse or neglect.  The appellate court disagreed, holding that “persistence of conditions” grounds can be used to terminate parental rights even in a case where transfer of custody was voluntary, so long as that court order granting that transfer contained findings of abuse, neglect or dependency.  While the court, in granting the transfer to Aunt, had made findings of neglect, the appellate court found that there was not clear and convincing evidence that mother’s current conditions were such that the child would be at risk of abuse or neglect if returned to mother.  Nonetheless, the court emphasized that, while it was reversing the termination, it strongly affirmed the trial court’s decision that child remain with Aunt.

Child Abuse, Custody (parenting plans) | Permalink