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H.C.S. v. Community Advocacy Project of Alaska, Inc. (03/08/2002) sp-5548
H.C.S. v. Community Advocacy Project of Alaska, Inc. (03/08/2002) sp-5548
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
H.C.S., )
) Supreme Court No. S-9783
Appellant, )
) Superior Court No. 4FA-99-185
PR
v. )
) O P I N I O N
COMMUNITY ADVOCACY )
PROJECT OF ALASKA, INC., as ) [No. 5548 - March 8, 2002]
Guardian and Conservator of )
H.L.S., )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Ralph R. Beistline, Judge.
Appearances: Edward R. Niewohner, Niewohner
& Associates, P.C., Fairbanks, for Appellant.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. Without objection from the family, the superior court
appointed a corporation to be the guardian and conservator of
H.L.S., an adult. Six months later, one of the wards adult sons,
H.C.S., asked the court to remove the corporation and appoint him
guardian and conservator. Because H.C.S. demonstrated that
circumstances had changed since the corporations uncontested
appointment, we vacate the order denying H.C.S.s modification
petition and remand for a determination whether it would be in
H.L.S.s best interests to remove CAPA and appoint H.C.S. guardian
and conservator. In making this determination the court should
consider the substantive values underlying the statutory
priorities for appointments of guardians and conservators.
II. FACTS AND PROCEEDINGS
H.L.S. was born in 1924; his family has lived in
Fairbanks for more than fifty years and he has an extended family
there. Alzheimers Disease and dementia caused H.L.S. to suffer
lapses in memory and judgment. In April 1999 his children
petitioned the superior court to appoint a guardian and
conservator for him. The court visitor, Alison Seymour, reported
that H.L.S. had previously expressed a preference that if he
should need help, it be provided by one of his sons, H.C.S. His
examining physician reported that H.L.S. had indicated that he
was most comfortable with having H.C.S. in charge of his
financial affairs. In July the court appointed H.L.S.s adult
sons T.B. and H.C.S. co-guardians; T.B. was the primary guardian
and H.C.S. was the secondary guardian. The court also ordered
the wards family to nominate a conservator. When the family was
unable to do so, the court appointed Community Advocacy Project
of Alaska, Inc. (CAPA) H.L.S.s conservator.
In early October 1999 the court visitor informed the
superior court that Adult Protective Services, CAPA, and the
Fairbanks Police Department had reported concerns to her about
the ward. The court visitor told the court that he was wandering
the Fairbanks streets improperly dressed for cold weather and
that his apartment had a sewage leak. She thought that lack of
follow through by the guardian regarding housing and finances was
causing personal danger to H.L.S. and danger of further waste or
dissipation of his finances and assets. She asked the superior
court to schedule a hearing to consider appointing CAPA guardian
in place of T.B. and H.C.S.
The superior court conducted a hearing on October 8 and
heard from the court visitor, the ward himself, and family
members, including T.B. and H.C.S.; it then appointed CAPA
H.L.S.s guardian without objection.
The wards ex-wife, Ms. H.S., wrote the superior court a
short letter several weeks later asking the court to remove CAPA
and appoint her H.L.S.s guardian. The court conducted a hearing
on her request on November 29; attending were Ms. H.S., the wards
attorney (Robert Noreen), the court visitor, and Candy Carroll of
CAPA. The court visitor suggested that Ms. H.S. might have a
conflict of interest because she claimed to have an interest in a
building H.L.S. owned. H.L.S.s attorney asked that Ms. H.S.s
request be denied. The court found that it was not then in
H.L.S.s best interest to change guardians and denied Ms. H.S.s
request.
In March 2000 H.C.S., through counsel, filed a petition
asking the superior court to modify and terminate the appointment
of CAPA and to appoint him as H.L.S.s guardian and conservator.
H.C.S. alleged that CAPA had caused H.L.S. to be
institutionalized in Sitka, rather than Fairbanks or Anchorage,
thus prohibiting or inhibiting family visits and emotional
support. H.C.S. further alleged that CAPA drilled and opened
[H.C.S.]s safety deposit box rather than [H.L.S.]s and . . .
otherwise assumed control of other family members possessions.
In late March CAPA asked for permission to file a bankruptcy
petition for H.L.S. The superior court initially approved CAPAs
request to file a bankruptcy petition but rescinded its approval
when H.C.S. sought reconsideration on the ground the petition to
remove CAPA was pending.
At a May 12, 2000 closed hearing on H.C.S.s petition to
replace CAPA, the superior court heard from CAPA's Candy Carroll,
the court visitor, H.L.S.'s attorney, H.C.S.s attorney, and
H.C.S. himself. The arguments and comments informed the court of
the continued need for a guardian and conservator to protect
H.L.S. and his assets; the court also heard of disputes
concerning the extent of H.L.S.s assets, the desirability of
filing for bankruptcy, the familys willingness and ability to
care for H.L.S., the extent to which CAPAs conduct had disrupted
the family by moving H.L.S. from Fairbanks to Sitka three days
before Thanksgiving 1999, and the expense of CAPAs services.
The court denied H.C.S.s petition on May 22. It found
that CAPA has been proceeding in good faith to protect both
[H.L.S.] personally and his assets. It is currently in [H.L.S.]s
best interest that CAPA continue in its role and continue its
efforts to provide [H.L.S.] with long-term care. H.C.S.
unsuccessfully moved for reconsideration. He now appeals.
III. DISCUSSION
H.C.S. argues that it was an abuse of discretion to
deny his petition to change his fathers guardianship and
conservatorship to himself without making fact findings to
justify deviating from statutory priorities favoring his
appointment. Relying on AS 13.26.145 and AS 13.26.210, he argues
that the court should have removed CAPA, an institutional
stranger, and appointed himself, absent findings that he would
be unfit as a guardian and conservator.
A. Standard of Review
A. The initial selection of a guardian or conservator for an
incapacitated person is committed to the sound discretion of the
superior court.1 We review that decision for abuse of
discretion.2 Although the issue has not previously come before
us, we think it appropriate to review an order denying or
granting a request to remove a guardian or conservator under the
same deferential standard.3 The superior court abuses its
discretion if it considers improper factors, fails to consider
statutorily mandated factors, or assigns too much weight to some
factors.4 We review the interpretation of a statute de novo,
adopting the rule of law that is most persuasive in light of
precedent, reason, and policy.5
B. Appointing Guardians and Conservators
The legislature has specified selection priorities for
persons seeking to be appointed guardians or conservators.
Alaska Statute 13.26.145(d) establishes the priorities for
qualified persons seeking appointment as guardians:
[Q]ualified persons have priority for
appointment as guardian in the following
order:
(1) a person, association, or private
nonprofit corporation nominated by the
incapacitated person, if at the time of the
nomination the incapacitated person had the
capacity to make a reasonably intelligent
choice;
(2) the spouse of the incapacitated person;
(3) an adult child or parent of the
incapacitated person;
(4) a relative of the incapacitated person
with whom the incapacitated person has
resided for more than six months during the
year before the filing of the petition;
(5) a relative or friend who has
demonstrated a sincere, longstanding interest
in the welfare of the incapacitated person;
(6) a private association or nonprofit
corporation with a guardianship program for
incapacitated persons;
(7) the public guardian.
Likewise, AS 13.26.210(a) establishes the priorities
for qualified persons seeking appointment as conservators:
The following are entitled to consideration
for appointment in the order listed:
(1) a conservator, guardian of property, or
other like fiduciary appointed or recognized
by the appropriate court of any other
jurisdiction in which the protected person
resides;
(2) an individual or corporation nominated
by the protected person if the protected
person is 14 or more years of age and has, in
the opinion of the court, sufficient mental
capacity to make an intelligent choice;
(3) the spouse of the protected person;
(4) an adult child of the protected person;
(5) a parent of the protected person, or a
person nominated by the will of a deceased
parent;
(6) any relative of the protected person
with whom the protected person has resided
for more than six months before the filing of
the petition;
(7) a person nominated by the person who is
caring for or paying benefits to the
protected person.
The legislature anticipated justifiable deviation from
these priorities. As to guardians, the legislature adopted AS
13.26.145(e). It provides that the priorities established in (d)
of this section are not binding, and the court shall select the
person, association, or nonprofit corporation that is best
qualified and willing to serve. (Emphasis added.) As to
conservators, the legislature adopted AS 13.26.210(b). It states
that the court, for good cause, may pass over a person having
priority and appoint a person having less priority or no
priority. (Emphasis added.)
Both appointment statutes express equivalent
preferences. Both prefer persons nominated by the protected
party to other persons. Both generally prefer close family
members to distant family members, and family members to non-
family members. The least favored applicants are those persons
or entities most distant from the ward. Both statutes give the
appointing court discretion to override the statutory
preferences. Notwithstanding the priorities, the court must
select the best qualified guardianship applicant willing to
serve.6 And it may deviate from the statutory priorities for
good cause in selecting a conservator.7
The Alaska Probate Rules specify some procedures
governing guardianships and conservatorships. Of particular
interest to selection are Probate Rules 16(a) and 17(a). The
former provides that a petition for guardianship must state the
priority of the nominee under AS 13.26.145 and, if known, the
names and addresses of any person with a higher priority.8 The
latter provides that a petition for conservatorship must state
the priority of the nominee under AS 13.26.210 and, if known, the
names and addresses of any person with a higher priority.9 These
provisions help advance the statutory appointment priorities.
The court initially selected CAPA as H.L.S.s
conservator with the familys consent and substituted CAPA for
T.B. and H.C.S. as H.L.S.s guardians, again without objection by
the family. Because CAPAs appointments were uncontested, the
superior court had no reason then to determine whether deviating
from the statutory priorities was justified. It therefore had no
reason to determine whether CAPA was best qualified to serve as
guardian10 i.e., better qualified than an applicant of higher
priority or whether there was good cause to appoint CAPA
conservator over another applicant with higher priority.11 H.C.S.
does not claim that the superior court abused its discretion in
initially appointing CAPA guardian and conservator.
C. Modifying Appointments of Guardians or Conservators
A. The legislature adopted statutes that discuss removal of
guardians and conservators.12 These removal statutes do not
purport to be exhaustive or comprehensive in describing the
grounds for removal or the procedure to be followed when removal
is sought.13
Thus, AS 13.26.125 appears to deal with only some of
the specific circumstances that might warrant removing a guardian
and appointing a successor. This section does not contain a
generally applicable substantive removal standard such as good
cause. Alaska Statute 13.26.125(a) provides that a court may
remove a guardian and appoint a successor if it determines that a
less restrictive guardianship plan . . . would assist the ward in
meeting essential requirements for physical health and safety.14
This subsection is inapplicable here, because H.C.S. is not
proposing a less restrictive plan. Alaska Statute 13.26.125(e)
addresses other specific reasons for removal, but they are
equally inapplicable, because H.C.S. is not claiming that CAPA
placed H.L.S.s safety in imminent danger. Likewise, subsections
.125(b) and (d) do not apply here because H.C.S. did not claim
that H.L.S. is no longer incapacitated or had expressed a desire
for a change in guardianship.15
Because other circumstances that might justify a
guardians removal in a given case can be readily imagined, it is
unlikely the legislature intended AS 13.26.125 to prescribe the
exclusive grounds for removal.
Alaska Statute 13.26.235 provides simply that
conservators may be removed for good cause.16 It does not
elaborate further, and unlike section .125, does not list
specific grounds for removal.
We conclude that the two removal statutes did not
prevent the superior court from removing and replacing CAPA as
guardian and conservator.
1. A two-part analysis should apply to petitions to remove or
replace guardians or conservators.
1. Neither section .125 nor section .235 specifies any
procedure for seeking removal. Nor do the Alaska Probate Rules.17
We recognize the potential for disputes over appointing
guardians and conservators and efforts to remove them.
Litigation over such matters can be contentious and can disrupt
family relationships already strained by the wards circumstances.
Extended or repeated litigation over removal is costly both
emotionally and financially. We are reluctant to encourage
serial disputes should applicants with successively higher
priority under the appointment statutes petition to replace
existing guardians and conservators. But we also recognize that
families may have difficulty in dealing with a family members
incapacity, and that persons with statutory priority may not
initially be able or willing to take on the responsibilities of
guardian or conservator. In such cases, it may be essential to
appoint a professional. That initial appointment should not
altogether foreclose qualified family members from later asking
the court to appoint them in place of the professional.
The procedure for modifying child custody awards
provides a useful analytical model. Child custody is awarded in
accordance with the childs best interests.18 Likewise, guardians
for incapacitated persons are appointed to promote and protect
the well-being of the person.19 Conservators are appointed for
the protection of those who, through incapacity, cannot manage
their property and affairs effectively.20 The legislature has
adopted a two-part test for modifying child custody awards.
Alaska Statute 25.20.110(a) provides that [a]n award of custody
of a child . . . may be modified if the court determines that a
change in circumstances requires the modification of the award
and the modification is in the best interests of the child.
Thus, the non-custodial parent must first demonstrate that
circumstances have changed significantly since entry of the prior
custody order.21 Requiring this threshold showing of changed
circumstances has the purpose of discourag[ing] discontented
parents from continually renewing custody proceedings. 22
We think an equivalent requirement of changed
circumstances is desirable when there is a dispute about changing
a guardian or conservator, to minimize repeated guardianship or
conservatorship contests. Therefore, in seeking a contested
change of the guardian or conservator, a petitioner must first
show that the circumstances of the ward, guardian, or conservator
have changed materially since the guardian or conservator was
appointed.23
Once the petitioner demonstrates changed circumstances,
the court must decide whether the existing appointment is in the
wards best interests. This best interests determination will
require the court to take into account the closeness of the wards
relationships to the existing and prospective guardians and
conservators. This inquiry gives weight to the substantive
values that apparently underlie the statutory priorities for
appointing guardians and conservators.24
The length and quality of existing appointments will
often also be relevant to the best interests determination.
While the material circumstances in any given dispute will be
case-specific, disrupting the wards relationship with the
existing guardian or conservator may raise concerns about
continuity and stability analogous to equivalent concerns in the
child custody context.25 Likewise, if a change would likely
affect the wards physical placement, the extent to which the ward
has formed relationships with caregivers or others in the wards
present living arrangement may be relevant. Other circumstances
may also be relevant in particular cases.
2. H.C.S.s petition
H.C.S. petitioned for removal of CAPA as guardian and
conservator and sought his own appointment. We conclude that he
demonstrated changed circumstances as a matter of law.
H.C.S.s petition and oral presentation alleged that
CAPAs abrupt relocation of his father from Fairbanks to Sitka
three days before Thanksgiving 1999 effectively cut off personal
contact with his fathers extended family in Fairbanks and other
African-Americans generally.26 This allegation might have
permitted an inference that H.C.S. would have either avoided such
a move, minimized its impact, or made quicker efforts than CAPA
to resettle his father in Fairbanks (or Anchorage, where H.C.S.
lives).
H.C.S. also alleged that CAPAs services are draining
H.L.S.s modest estate, which was alleged to be on the edge of
bankruptcy when this appeal was commenced. H.C.S., in contrast,
claimed he would not charge the estate to perform the same
services.
We acknowledge that at least some of these assertions
were in dispute. For example, had it reached the issue, the
court might have found that, based on information offered at the
May 12, 2000 hearing, H.C.S. could not have achieved a better
placement than CAPA. But taken as a whole, H.C.S.s allegations
demonstrated a significant change of circumstances, and therefore
entitled H.C.S. to an evidentiary hearing and a determination
whether CAPA should remain the guardian and conservator.
Moreover, H.C.S. is a statutorily preferred applicant
who has significantly higher priority than CAPA under both
appointment statutes. He correctly argues that, as his fathers
adult child, he has priority over CAPA under AS 13.26.145(d)(3)
and AS 13.26.210(a)(4).27 And before CAPA was appointed guardian
and conservator, his father had expressed a preference to the
court visitor and his physician that H.C.S. take care of him if
needed and that H.C.S. manage his affairs. H.L.S.s preference,
if still valid, would also give H.C.S. priority under AS
13.26.145(d)(1) and AS 13.26.210(a)(2). Notwithstanding his
priority, H.C.S. did not oppose CAPAs appointments, and CAPAs
appointments were uncontested. H.C.S.s present willingness to
serve is a change in circumstances since the time CAPA was
appointed without contest. This creates a dispute that did not
exist when CAPA was appointed. The superior court was never
previously asked to give effect to the statutory appointment
priorities or decide whether to deviate from them.28
Because H.C.S. demonstrated a material change of
circumstances, it was necessary to consider whether it was in the
wards best interests to remove CAPA and replace it with H.C.S..
The superior court promptly conducted a hearing at
which all interested parties or persons were heard, although no
formal testimony was offered.29 We agree with H.C.S.s argument on
appeal that the hearing failed to address several unresolved
factual disputes about CAPAs treatment of H.L.S. and his assets.
The order denying H.C.S.s petition found that CAPA has
been proceeding in good faith to protect both [H.L.S.] personally
and his assets. It is currently in [H.L.S.]s best interests that
CAPA continue in its role and continue its efforts to provide
[H.L.S.] with long-term care. We think these findings are
insufficient to resolve the best interests inquiry.
First, the finding of CAPAs good faith is of little
relevance here. We assume that a corporate professional guardian
and conservator would be altogether disqualified if it were not
acting in good faith toward the ward; this factor has little
bearing on the wards best interests or the statutory priorities.
And the essence of H.C.S.s petition was not that CAPA was acting
in bad faith, but that CAPA was not caring for his father
appropriately or efficiently.
Second, the finding that it was in the wards best
interests that CAPA continue as his guardian and conservator is
conclusory and does not allow meaningful review in light of
H.C.S.s specific allegations. It was certainly arguable from the
information heard by the superior court at the May 12, 2000
hearing and at earlier hearings that CAPA was a better choice
than H.C.S. But no findings discussed the relative capabilities
of CAPA and H.C.S. to care for H.L.S. and be his guardian. No
findings found that CAPAs capabilities sufficiently outweighed
H.C.S.s so as to justify the courts departure from the statutory
preferences set out in AS 13.26.145. Likewise, no findings
discussed their relative abilities to manage H.L.S.s assets
efficiently. Based on the arguments made at the May 12, 2000
hearing, there was a material and genuine dispute about whether
it was necessary for H.L.S. to declare bankruptcy. The superior
court seemingly concluded that it was necessary for H.L.S. to
declare bankruptcy, but even if it were appropriate to sell
H.L.S.s real property to care for him, that would not mean that
CAPA could provide that care more efficiently or less expensively
than H.C.S.
Finally, there is no indication the court considered
the relative closeness of H.L.S.s relationships with CAPA and his
son in making its best interests finding.30
We therefore remand for further findings consistent
with this opinion.
Because only H.C.S. has filed a brief on appeal and the
parties did not seem to discuss in the superior court what
factors might be relevant in deciding whether H.C.S. should
replace CAPA, we decline to attempt to list all considerations
that may be relevant on remand. Also, circumstances may have
changed since this appeal was filed. But we do note one factor
that is potentially relevant: the wards need for continuity and
stability. That factor may bear on who is best qualified to be
guardian and whether there is good cause to have a conservator
who is of lower priority than H.C.S. H.L.S. may have formed
relationships with persons providing care to him or with whom he
has come into contact in his present living arrangement. The
record indicates his most recent placement was in the Sitka
Pioneer Home. It may have changed since.
H.C.S. satisfied his burden of demonstrating materially
changed circumstances. But who bears the burden regarding the
wards best interests on remand? A motion to modify a child
custody order again provides an apt model. We conclude that a
party asking the court to modify an order appointing a guardian
or conservator normally has the burden of demonstrating that the
wards best interests justify the modification.31 Because there
was no contest between CAPA and any other applicant when CAPA was
appointed, the superior court made no best qualified or good
cause findings bearing on the selection and justifying deviation
from the statutory priorities. It could therefore be argued that
CAPA should have the burden of demonstrating that the wards best
interests justify CAPAs retention. But the present dispute
concerns removal of a guardian and conservator previously
appointed, and we think placing the burden on the party seeking
to maintain the status quo would unduly promote instability and
encourage removal motions by persons with higher statutory
priority. Placing the burden on movants will not prevent
modification when it is in the wards best interest. And if all
other things are equal, it would seem that a movant like H.C.S.,
whose relationship to his father is much closer than CAPAs, can
readily establish that modification is in the wards best
interests.
IV. CONCLUSION
For these reasons, we REVERSE the denial of H.C.S.s
petition and REMAND for further proceedings consistent with this
opinion.
_______________________________
1 E.g., In re Estate of Romberg, 942 S.W.2d 417, 419 (Mo.
App. 1997); see also 39 Am. Jur. 2d Guardian and Ward 40 (1999)
([T]he selection of a guardian is a matter committed largely to
the discretion of the appointing court, whose decision will only
be interfered with on appeal in the case of a clear abuse of
discretion. (citations omitted)); cf. Veazey v. Veazey, 560 P.2d
382, 385 (Alaska 1977) (holding that trial court has discretion
to appoint guardian ad litem), overruled on other grounds by
Dievert v. Oseira, 628 P.2d 575, 579 (Alaska 1981).
2 39 Am. Jur. 2d Guardian and Ward 40.
3 See S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985)
(reviewing modification of child custody order under abuse of
discretion standard).
4 Id. (citation omitted).
5 Sosa v. State, 4 P.3d 951, 953 (Alaska 2000) (citations
omitted).
6 AS 13.26.145(e).
7 AS 13.26.210(b).
8 Alaska Probate Rule 16(a) provides:
A petition for guardianship must contain the
information required by AS 13.26.105(b). The
petition must be verified by the petitioner
or signed by an attorney representing the
petitioner. The petition must state the
priority of the nominee under AS 13.26.145
and, if known, the names and addresses of any
person with a higher priority.
9 Alaska Probate Rule 17(a) provides:
A petition for conservatorship must contain
the information required by AS 13.26.180(b).
The petition must be verified by the
petitioner or signed by an attorney
representing the petitioner. A petition for
conservatorship of a minor must state who has
legal custody of the minor and the birthdate
of the minor. The petition must state the
priority of the nominee under AS 13.26.210
and, if known, the names and addresses of any
person with a higher priority.
10 See AS 13.26.145(e).
11 See AS 13.45.210(b).
12 AS 13.26.125 (addressing removal of guardian); AS
13.26.235 (addressing removal of conservators). H.C.S. has not
discussed either of these statutes on appeal. Nor does it appear
that he discussed them in the superior court. His petition for
modification cited AS 13.26.125 without discussing its
substance.
13 The Alaska Probate Rules do not specify the procedure
for a removal petition.
14 AS 13.26.125 provides:
Removal or resignation of guardian; change in
or termination of guardianship.
(a) On petition of the ward, the
guardian, or any person interested in the
wards welfare, the court may (1) review and
amend a decision of a guardian; or (2) if
alternatives that are less restrictive than
guardianship or less restrictive than the
existing guardianship plan would assist the
ward in meeting essential requirements for
physical health and safety, modify the
provisions of its order to (A) amend the
guardianship plan or the responsibilities of
the guardian; (B) remove a guardian and
appoint a successor; or (C) terminate the
guardianship. On petition of the guardian,
the court may accept a resignation and make
any other order that may be appropriate.
(b) The ward, the guardian, or any
person interested in the wards welfare may
petition for an order that the ward is no
longer incapacitated or no longer
incapacitated to the same extent as the ward
was when the original guardianship order was
made or when the court last amended the
guardianship order, and for removal or
resignation of the guardian, termination of
the guardianship, or a change in the
responsibilities of the guardian. A request
for this order may be made by informal letter
to the court or judge and any person who
knowingly interferes with transmission of
this kind of request to the court or judge
may be held in contempt of court.
(c) Before removing a guardian,
changing the guardians responsibilities,
accepting the resignation of a guardian, or
ordering that a wards guardianship be changed
or terminated, the court, following the same
procedures to safeguard the rights of the
ward as apply to a petition for appointment
of a guardian and applying the least
restrictive alternative necessary to meet the
needs of the ward after consideration of
alternatives to guardianship services, may
send a visitor to the residence of the
present guardian and to the place where the
ward resides or is detained, to observe
conditions and report in writing to the
court.
(d) If at any time the ward requests or
indicates to the guardian or to the agency
responsible for the wards care or its
employee that the ward desires a change in
guardianship, the guardian or the agency
providing care shall inform the court of the
request or indication.
(e) If the guardian dies, or if on the
basis of a petition filed under this section
or a report or other information, there is
probable cause to believe a guardian is not
performing the guardians responsibilities
effectively and there is an imminent danger
that the physical health or safety of the
ward will be seriously impaired, the court
shall take whatever action is necessary to
protect the ward, including the dismissal of
the guardian and appointment of a temporary
guardian without a hearing.
15 H.C.S. does rely on a preference expressed by his
father, but his father expressed that preference before CAPA was
appointed.
16 AS 13.26.235 provides: The court may remove a
conservator for good cause, upon notice and hearing, or accept
the resignation of a conservator. After death, resignation, or
removal, the court may appoint another conservator. A
conservator so appointed succeeds to the title and powers of the
conservators predecessor.
17 See Alaska R. Prob. P. 16, 17.
18 AS 25.24.150(c).
19 AS 13.26.090.
20 AS 13.26.165.
21 Garding v. Garding, 767 P.2d 183, 185 (Alaska 1989)
(citing S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985)).
22 Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990)
(quoting King v. King, 477 P.2d 356, 360 (Alaska 1970)).
23 Our survey of statutes elsewhere regarding removal or
modification of guardians reveals one jurisdiction that requires
a change in circumstances before removal. Ga. Code Ann. 29-5-9
(2) (allowing modification or termination of guardianship upon
showing of significant change in circumstances of ward or
guardian); In re Pitts, 463 S.E.2d 550, 550-51 (Ga. App. 1995)
(affirming dismissal of petition to remove guardian where
petitioners factual recitation [did] not evidence a significant
change in the extent of her mothers incapacity or her
circumstances since the appointment of her guardian).
24 See AS 13.26.145(d) (guardians); AS 13.26.210(a)
(conservators); see also supra Part III.B. (identifying
equivalent preferences under each statute).
25 See, e.g., AS 25.24.150(c)(5) (requiring consideration
of the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity).
26 See Acevedo v. Liberty, 956 P.2d 455, 458 (Alaska 1998)
(custodial parents in-state move of considerable distance
constituted change in circumstances sufficient to warrant hearing
on modification of custody order).
27 H.C.S. is three categories above CAPA on the guardian
appointment priority list. AS 13.26.145(d). H.C.S. is also
three categories above CAPA on the conservator list if CAPA is
considered (7) a person nominated by the person who is caring for
. . . the protected person. AS 13.26.210(a).
28 The superior court had previously denied Ms. H.S.s
October 1999 pro se petition on best interests grounds, finding
that CAPA was doing an excellent job dealing with a very
difficult situation. In so ruling, the court did not refer to
the statutory priorities or the statutory grounds for deviating
from them.
29 H.C.S. does not argue that the hearing was procedurally
inadequate.
30 See supra note 24 and accompanying text.
31 Petitioners seeking modification of child custody
orders bear the burdens of proof and persuasion both as to
changed circumstances and best interests. E.g., Lee v. Cox, 790
P.2d 1359, 1361 (Alaska 1990) (stating that burden is on non-
custodial parent to demonstrate that the changed circumstances,
considered in conjunction with other relevant facts bearing upon
the childs best interests, warrant modification of the custody
decree). This is also true where the initial custody award was
entered by stipulation rather than by contest. E.g., Garding,
767 P.2d at 185 (holding that non-custodial parent still had
burden of proving changed circumstances where parents stipulated
to initial custody agreement); Lashbrook v. Lashbrook, 957 P.2d
326, 329 (Alaska 1998) (holding that movant still had burden of
proving modification was in childs best interests where parties
stipulated to initial custody agreement). By analogy, H.C.S.
should bear both burdens on remand even though CAPAs initial
appointments were not contested.
