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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 118,188

In the Matter of the Guardianship and Conservatorship of

B.H., D.D., S.D., and V.D.,

Minor Children.

SYLLABUS BY THE COURT

1.

Under ordinary circumstances, voluntary guardianships and custodianships may be 

terminated at any time and for any or no reason.

2.

In the absence of unusual or extraordinary circumstances, the parental preference 

doctrine is to be applied in a custody dispute over minor children when the dispute is 

between a natural parent who has not been found unfit and a nonparent.

3.

Whether extraordinary circumstances exist is a mixed question of law and fact. 

The district court makes factual findings about the circumstances, and it makes a legal 

conclusion about whether these circumstances are extraordinary. Appellate courts review 

the factual findings to determine whether they are supported by clear and convincing 

evidence, which is to say, whether the reviewing court is convinced that a rational factfinder could have found the determination to be highly probable. The question of law 

would be subject to unlimited review. 
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4.

If the reviewing court finds no error in the lower court's determination that 

extraordinary circumstances exist, then determinations regarding children's best interests 

are reviewed for abuse of discretion. 

5.

In general, litigants must object to inadequate findings of fact and conclusions of 

law in order to give the trial court the opportunity to correct them. In the absence of an 

objection, omissions in findings will not be considered on appeal and the appellate court 

presumes the district court found all facts necessary to support its judgment.

6.

When it is impossible to discern from the appellate record the factors on which the 

district court relied in finding extraordinary circumstances, a case may be remanded to 

the district court for additional factual findings and legal conclusions that suffice for 

meaningful appellate review.

Review of the judgment of the Court of Appeals in an unpublished opinion filed September 21, 

2018. Appeal from Wilson District Court; TOD MICHAEL DAVIS, judge. Opinion filed June 7, 2019. 

Judgment of the Court of Appeals reversing the district court is reversed. Remanded to the district court 

with directions.

John J. Gillett, of Chanute, argued the cause and was on the brief for appellants. 

Andrea Sue Hughes, of the Law Dame, LLC, of Paola, argued the cause, and G. Thomas Harris, 

of Harris Law Office, of Fredonia, was on the brief for appellees.

Charles H. Apt III, of Apt Law Offices, LLC, of Iola, was on the brief as guardian ad litem. 
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The opinion of the court was delivered by

ROSEN, J.: During the course of child in need of care (CINC) proceedings, Alicia 

and Sam relinquished custody of the four children in their care to relatives through a legal 

guardianship, after which the CINC proceedings were either terminated or became 

dormant. Alicia and Sam later sought to terminate the guardianship. The district court 

refused to grant them relief, holding that the best interests of the children militated 

against returning custody to Alicia and Sam. The Court of Appeals disagreed and 

reversed the district court. This court granted the guardians' petition for review.

Because we determine that the district court findings were insufficient to allow 

proper appellate review, we remand the case to the district court for more complete and 

specific findings.

FACTS

The record informs us that Alicia is the natural mother of S.D., V.D., and D.D. 

Sam is the natural father of S.D., V.D., and B.H. In 2010, Alicia and Sam were arrested 

on drug-related charges. Because all of the children had been living with Alicia and Sam

at the time of the arrest, the children were placed in temporary foster care.

On September 1, 2010, the Wilson County Attorney filed CINC petitions 

regarding all four children. On the same day, the court entered orders giving temporary 

physical custody of the children to Sam's cousin, Malinda, and her husband, Gregory. 

Each child was adjudicated a child in need of care. 

On October 14, 2010, Malinda filed a petition for guardianship and 

conservatorship requesting that the court appoint her and Gregory coguardians and 
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coconservators for all four children. Following a hearing, on December 23, 2010, the 

district court granted the petition and appointed Malinda and Gregory coguardians and 

coconservators of B.H., S.D., and V.D. The order also purported to terminate the CINC 

cases concerning those three children. The court did not rule regarding the guardianship 

and conservatorship of D.D. It continued her case until March 7, 2011, so that D.D.'s 

natural father had adequate time to participate in the proceedings. D.D.'s father did not 

respond and, on March 10, 2011, the district court appointed Malinda and Gregory

coguardians and coconservators of D.D. and purported to terminate the CINC case 

concerning her. 

On the same day that it appointed Malinda and Gregory guardians of D.D., the 

district court ruled on child support. The journal entry indicates the Kansas Department 

of Social and Rehabilitation Services (SRS) had moved to intervene in the guardianship 

proceeding. In the journal entry, the court found that the guardians had received $795.39 

in monthly cash assistance from SRS for each of the children—D.D., S.D., and V.D. The 

court ordered Alicia and Sam to reimburse SRS for these payments. It further ordered 

Alicia and Sam to each pay the guardians $407 per month for the support of the children.

Alicia and Sam were eventually convicted of felony drug charges and sentenced to 

prison terms. Sam served two and a half years in prison and was released in July 2013. 

Alicia served four and a half years in prison and was released in December 2014. 

Alicia was paroled to the guardians' house in Osawatomie, Kansas, and lived there 

for a short time with them and the children. After three or four months, Alicia moved to 

Louisburg before eventually settling in Paola with her boyfriend and his daughter. She 

saw the children occasionally when she requested to see them and the children were not 

busy. S.D., V.D., and D.D. stayed overnight at her house once. By 2016, she was 

approximately $17,000 in arrears in child support.
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During his incarceration, Sam called the children once every few months. He also 

sent them letters. After his release, he immediately moved to the state of Washington. He 

informed Malinda that he could not see the children before his move because he was 

being paroled to Washington. Sam called Malinda one month after he arrived in 

Washington and informed her he would come see the children at Christmas. He did not 

make the visit. Malinda did not hear from Sam until March of 2014 when he called her on 

the phone. Sam made no attempts to see the children after his release from prison. He 

began making child support payments in March 2016 after his employer received 

paperwork indicating he needed to garnish Sam's wages. The payments were sporadic 

and depended on whether Sam had work. Sam owed about $25,600 in arrearages.

On July 26, 2016, Alicia and Sam filed a petition to terminate the guardianship 

and conservatorship. They argued that they had a constitutional right to their children 

and, because they now had the means to care for the children, the guardianship and 

conservatorship should be terminated and the children should be returned to their 

custody. 

The guardians moved to dismiss the petition. They asserted that Alicia and Sam

were presumptively unfit under K.S.A. 2016 Supp. 38-2271. Consequently, they argued, 

Alicia and Sam could not terminate the guardianship. A hearing was held on the petition 

to terminate the guardianship. 

On March 16, 2017, Alicia and Sam moved the court to open the record and take 

additional evidence that did not exist before the hearing. The court granted the motion 

and ordered a hearing. The judge also stated that he would interview the children again. 

The hearing was held on April 28, 2017, and the court heard testimony about the 
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guardians' fitness, efforts by Alicia and Sam to spend time with the children, and the 

children possibly changing their minds about with whom they wanted to reside. 

On July 18, 2017, the district court denied the petition to terminate the 

guardianship. It made a number of legal observations before ruling: that K.S.A. 59-

3091(h) required that it terminate the guardianship unless there was clear and convincing 

evidence that it was still needed; that it was the guardians' burden to show that Alicia and 

Sam were "still unfit" or that "exceptional circumstances" existed; and that, when the 

parents are unfit or extraordinary circumstances exist, the best interests of the children 

should be considered. The court concluded that extraordinary circumstances existed and 

that terminating the guardianship would be contrary to the best interests of the children. It 

ruled that, because it found that extraordinary circumstances existed, it would not 

determine whether Alicia and Sam were fit parents. Based on all of this, the court 

concluded there was clear and convincing evidence that the guardianship should not be 

terminated. 

Alicia and Sam appealed the decision. The Court of Appeals reversed the district 

court after concluding that the district court erred when it considered the best interests of 

the children. In re Guardianship and Conservatorship of B.H., No. 118,188, 2018 WL 

4517544, at *6 (Kan. App. 2018) (unpublished opinion). It held that the district court 

should have applied the parental preference doctrine because it did not make a finding of 

parental unfitness, it failed to identify the extraordinary circumstances, and the evidence 

would not support a finding of extraordinary circumstances. 2018 WL 4517544, at *6. 

Applying the parental preference doctrine, the Court of Appeals reversed the district 

court order and remanded the case with directions to terminate the guardianship. 2018

WL 4517544, at *6-7.

We granted the guardians' petition for review.
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ANALYSIS

This appeal focuses on the interplay between the Kansas Code for Care of 

Children, K.S.A. 2018 Supp. 38-2201 et seq., and the Kansas Probate Code's Act for 

Obtaining a Guardian or a Conservator, or both, K.S.A. 59-3050 et seq. The appeal must 

be understood in light of two distinct kinds of proceedings at the district court level: the 

guardianship action of the present appeal, and CINC proceedings filed as separate actions 

under different case numbers. No appeals were taken in the CINC proceedings; indeed, it 

is unclear what orders were entered in the CINC proceedings, although at least one was 

apparently terminated following the approval of the guardianship by the probate court. 

K.S.A. 2018 Supp. 38-2201(a) states: "any orders pursuant to [the Code for Care 

of Children] shall take precedence over any similar order under . . . article 30 of chapter 

59 of the Kansas Statutes Annotated, and amendments thereto, guardians and 

conservators, . . . until jurisdiction under this code is terminated." K.S.A. 2018 Supp. 38-

2203(a) states: "Proceedings concerning any child who may be a child in need of care 

shall be governed by this code . . . ." In the present case, however, the proceedings under 

the Code for Care of Children were subordinated to proceedings under the chapter 59 

guardianship and conservatorship statutes.

Under the Code for Care of Children, jurisdiction is obtained over a child upon the 

filing of a petition under the code. K.S.A. 2018 Supp. 38-2203(c). Jurisdiction over the 

child continues until the child becomes 18 years of age (with exceptions for children still 

attending high school), or the child is adopted, or the child has been discharged by the 

court. K.S.A. 2018 Supp. 38-2203(c). Following an adjudication that a child is a child in 

need of care, a court is to consider various factors relating to the welfare of the child and 

then make dispositional decisions. K.S.A. 2018 Supp. 38-2255. If the court awards 
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custody of the child to a party outside the home, a permanency plan must be prepared, 

which will include considerations for future reintegration into the home. K.S.A. 2018 

Supp. 38-2255(e); K.S.A. 2018 Supp. 38-2264. 

If the court deems reintegration a viable alternative, a reintegration plan should be 

developed as part of a court-approved permanency plan. The permanency plan is subject 

to at least annual court review. If the court deems reintegration not a viable alternative, 

the State must file a motion within 30 days seeking termination of parental rights or the 

appointment of a permanent custodian. K.S.A. 2018 Supp. 38-2255(f). Courts are 

authorized to appoint permanent custodians, a legal relationship created strictly for the 

resolution of CINC cases when termination of parental rights is not in the best interests of 

the child but placement of the child in the parental home is also not in the child's best 

interests. See K.S.A. 2018 Supp. 38-2272. Such a permanent custodianship may be 

created with the consent and agreement of the parents and the approval of the court. 

K.S.A. 2018 Supp. 38-2272(a)(1). The district court retains jurisdiction over the child 

unless the court enters an order terminating jurisdiction. K.S.A. 2018 Supp. 38-2272(b). 

If a permanent custodian is appointed, the parents retain strictly limited rights and 

responsibilities: the obligation to pay child support and medical support; the right to 

inherit from the child; and the right to consent to adoption of the child. K.S.A. 2018 

Supp. 38-2272(h).

In the present case, it appears that the Code for Care of Children procedures were 

followed at least as far as having the children declared children in need of care. From 

testimony in the record, we can speculate that some kind of hearings were held regarding 

permanency. It appears, however, that no permanency plans were created and no plans 

for reintegration were either adopted or found unfeasible. No permanent custodians were 

appointed and Alicia and Sam's rights were not terminated. Instead, the statutory process 

for determining custody was short-circuited by the initiation of guardianship proceedings. 
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This process violated the mandates of the Code for Care of Children, which "creates a 

legislatively designated framework of sequential steps of judicial proceedings with each 

step occurring in a specific order leading toward permanency in the child's placement." In 

re N.A.C., 299 Kan. 1100, Syl. ¶ 5, 329 P.3d 458 (2014).

K.S.A. 59-3091 sets out the manner for terminating a guardianship or 

conservatorship. K.S.A. 59-3091(a) provides:

"At any time following the appointment of a guardian or a conservator, any 

person, including the ward or conservatee, may file a verified petition with the court 

requesting that the court find that the ward or conservatee is no longer in need of a 

guardian or a conservator, or both, and requesting that the court terminate the 

guardianship or conservatorship, or both."

Following a hearing, "if the court does not find, by clear and convincing evidence, 

that the ward or conservatee is in need of a guardian or conservator, or both, the court 

shall order that the guardianship or conservatorship, or both, be terminated as provided 

for herein." K.S.A. 59-3091(h).

Ordinarily, voluntary guardianships are exactly that: voluntary. For that reason, 

they may be terminated at any time and for any or no reason. See Nelson, Child Custody, 

Parenting Time, and Third-Party Visitation, Practitioner's Guide to Kansas Family Law 

§ 6.8.2(a) 2d ed. 2010. But several circumstances inform us that the present case does not 

involve an ordinary voluntary guardianship. Alicia and Sam were facing involuntary 

separation from their children because they were going to prison. They were also facing 

the prospect of losing their parental rights, and they opted for the guardianship as a means 

to avoid CINC final orders. The CINC cases entered a state of limbo: the record on 

appeal contains no judicial determination that the status of the parental fitness ever 
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changed or that the children were no longer children in need of care, although the CINC 

cases may have been terminated.

In In re Guardianship of Williams, 254 Kan. 814, 869 P.2d 661 (1994), this court 

set out several principles relevant to the present case. 

"The best interests of the child test . . . has long been the preferred standard to 

apply when the custody of minor children is at issue between the natural parents of the 

child or children. However, absent highly unusual or extraordinary circumstances it has 

no application in determining whether a parent, not found to be unfit, is entitled to 

custody as against a third-party nonparent." 254 Kan. at 826. 

In support of this rule, the Williams court quoted Herbst v. Herbst, 211 Kan. 163, 

163, 505 P.2d 294 (1973): "'In the absence of an adjudication that a natural parent is 

unfit to have custody of a child, the parent has the paramount right to custody as opposed 

to third parties—even, as here, they happen to be her own parents and the child's 

grandparents.'" 254 Kan. at 826. The court also referred to In re Eden, 216 Kan. 784, 

786-87, 533 P.2d 1222 (1975), which rejected the best interests test in disputes between 

strangers and natural parents who are not unfit and who are able and willing to care for 

the children.

The court cited with approval 67A C.J.S., Parent and Child § 26, p. 253, which 

states that, when there is no intent permanently to relinquish custody, but a parent 

surrenders a child temporarily because of illness or financial difficulties, the parent has 

the right to reclaim custody when the situation changes for the better. 254 Kan. at 827. It 

also cited Elrod, Child Custody Prac. and Proc. § 4.06 (1993), noting a general rule that 

parents as natural guardians have superior rights to the custody of their child over 

nonparents "'unless the parents are unfit or extraordinary circumstances exist.'" 254 Kan. 

at 827-28.
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This court concluded: "We adhere to the rule that absent highly unusual or 

extraordinary circumstances the parental preference doctrine is to be applied in a custody 

dispute over minor children when the dispute is between a natural parent who has not 

been found unfit and a nonparent." (Emphasis added.) 254 Kan. at 828. This rule applies 

even if "at the time the natural parent seeks their custody [the guardians] are giving the 

children proper and suitable care and have acquired an attachment for them." 254 Kan. 

814, Syl. ¶ 2.

As to what constitutes "extraordinary circumstances," the Williams court quoted In 

re Kailer, 123 Kan. 229, 231, 255 P. 41 (1927): 

"'[T]he welfare of children is always a matter of paramount concern, but the policy of the 

state proceeds on the theory that their welfare can best be attained by leaving them in the 

custody of their parents and seeing to it that the parents' right thereto is not infringed 

upon or denied. This is the law of the land on this subject. And it never becomes a 

judicial question as to what is for the welfare and best interests of children until the 

exceptional case arises where the parents are dead, or where they are unfit to be intrusted 

with the custody and rearing of their children and have forfeited this right because of 

breach of parental duty, or where the right has been prejudiced by the discord of the 

parents themselves.'" 254 Kan. at 822.

Kailer predated the Code for Care of Children, and we do not consider its list of 

factors to be exhaustive. Williams simply places the responsibility on a district court to 

decide whether particular circumstances are extraordinary.

Alicia and Sam argue that these principles from Williams mandate termination of 

the guardian and custodial relationship. But these principles apply to ordinary

circumstances for creating guardianships. See In re R.C., 21 Kan. App. 2d 702, 708, 713, 
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907 P.2d 901 (1995), rev. denied 259 Kan. 928 (1996) (distinguishing Williams, which 

dealt with truly voluntary guardianships, from cases arising out of the Code for Care of 

Children, and holding that CINC-motivated guardianships require consideration of best 

interests of children). It is possible that various factors, whether procedural peculiarities, 

family relationships, or other issues that may arise in the exceptional case, may justify a 

finding of extraordinary circumstances. Williams simply informs us that the best interests 

of the children—standing alone—do not take precedence over the preference of parents 

to retain or regain custody of their children.

The district court stated that, "having found extraordinary circumstances exist, this 

Court does not determine whether or not Sam and Alicia are fit parents . . . ." The Court 

of Appeals made much of this non-determination. See 2018 WL 4517544, at *4-5. The 

Court of Appeals gave little weight to the parties' conflicting evidence about parental 

fitness, because the district court order was based on the existence of extraordinary 

circumstances, not on a finding of parental unfitness. 

The proper venue for determining parental fitness would have been, of course, the 

proceedings under the Code for Care of Children. As noted earlier, orders pursuant to the 

Code take precedence over similar orders under the Probate Code relating to guardians 

and conservators. K.S.A. 2018 Supp. 38-2201(a). If the statutory requirements under the 

Code for Care of Children had been followed, Alicia and Sam could have sought to 

persuade the court in the CINC proceedings that they were fit and that the children should 

be reintegrated into their homes.

For reasons that do not appear in the record, that did not happen in the present 

case. Instead, a guardianship proceeding appears to have taken the place of the required 

CINC proceedings. As a consequence, parental fitness was left undetermined, as was any 

plan for reintegration.
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The district court explicitly found that "extraordinary circumstances exist in this 

case." The court also listed facts that contributed to a conclusion that the best interests of 

the children would be served by maintaining the guardianship and custodianship. The 

court noted the earlier determinations that the children were in need of care; the earlier 

CINC proceedings finding that remaining in the home or returning home would be 

contrary to the welfare of the children; the special educational and socializing needs of 

the children that had not been met by Alicia and Sam but were being met by the 

guardians; the children residing in the custody of the guardians for more than six years; 

and separating the children would be harmful to them.

It is not clear, however, which of these many factors were the basis for the district 

court's legal conclusion that extraordinary circumstances existed. It is further unclear 

whether the district court's determination that extraordinary circumstances are present 

here was intended to be an independent finding of fact, a stand-alone legal conclusion 

finding allowing the court to consider the children's best interests, or a conclusion based 

on the series of factual findings that preceded it. It may be that at least some of the factors 

relating to best interests were also considered grounds for finding extraordinary 

circumstances, but the order does not state that is the case. It is also possible that the 

district court considered the overall circumstances, including the truncated CINC 

proceedings, to be extraordinary, without considering any particular factor sufficient to 

lead to that conclusion. 

Whether extraordinary circumstances exist is a mixed question of law and fact. 

The district court makes factual findings about the circumstances, and it makes a legal 

conclusion about whether these circumstances are extraordinary. See, e.g., Gannon v. 

State, 303 Kan. 682, 699-700, 368 P.3d 1024 (2016). The appellate court reviews the 

factual findings to determine whether they are supported by clear and convincing 
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evidence, which is to say, whether the reviewing court is convinced that a rational factfinder could have found the determination to be highly probable. See K.S.A. 59-3091(h) 

(clear and convincing evidence necessary to support rejecting request to terminate 

custodial relationship); In re Adoption of B.B.M., 290 Kan. 236, 244, 224 P.3d 1168 

(2010). The question of law would be subject to unlimited review. See, e.g., State v. 

Kahler, 307 Kan. 374, 400, 410 P.3d 105 (2018), cert. granted 139 S. Ct. 1318 (2019). If 

the reviewing court finds no error in the lower court's determination that extraordinary 

circumstances exist, then determinations regarding children's best interests are reviewed 

for abuse of discretion. See In re R.S., 50 Kan. App. 2d at 1116.

Unfortunately, in the present case, this paradigm for review cannot be followed. 

While the district court made findings of fact and reached conclusions of law, it is 

impossible to disentangle the findings from the conclusions and to sort out which 

findings supported which conclusions.

In general, litigants must object to inadequate findings of fact and conclusions of 

law in order to give the trial court the opportunity to correct them. In the absence of an 

objection, omissions in findings will not be considered on appeal. When no objection is 

made, this court presumes the district court found all facts necessary to support its 

judgment, although this court may nevertheless order a remand if the lack of specific 

findings precludes meaningful review. McIntyre v. State, 305 Kan. 616, Syl. ¶ 1, 385 

P.3d 930 (2016); Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 

(2006). When it is impossible to discern from the appellate record the factors on which 

the district court relied to find extraordinary circumstances, however, this court must 

remand for additional factual findings and legal conclusions. Progressive Products, Inc. 

v. Swartz, 292 Kan. 947, 961-62, 258 P.3d 969 (2011). 
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Alicia and Sam did not object to the sufficiency of the findings on the record. But 

instead of remanding for more complete findings, the Court of Appeals remanded "with 

directions to terminate the guardianship and conservatorship in a reasonable and timely 

manner." 2018 WL 4517544, at *7. Such a remedy carries with it the consequence that 

children will be separated and returned to the custody of parents who have been found to 

be providing them with inadequate parental care and who maintained minimal support 

and contact with them, and the parents would successfully circumvent statutorily 

mandated procedures for developing permanency and reintegration plans. Significantly, 

the court in several of the CINC proceedings here expressly found that "remaining in the 

home or returning home would be contrary to the welfare of the child(ren)." The CINC 

proceedings were terminated without any revision of that finding apparent in the record. 

The remedy ordered by the Court of Appeals overrides that finding and potentially places 

the children in custodial settings contrary to their welfare.

CONCLUSION

We therefore conclude that the better resolution is to remand this case to the 

district court for findings and legal conclusions that suffice to allow appellate review. The 

court should make factual findings about the circumstances and state those findings in its 

order. From there, the court should make a legal conclusion about whether those 

circumstances are extraordinary. If extraordinary circumstances exist, then the court 

should specify the factors leading to the determination that the best interests of the 

children supports maintaining or terminating the custodial relationships.

We address one final point raised by the guardians. They argue that this court 

lacks statutory jurisdiction to entertain this appeal. They contend that, by terminating the 

CINC proceedings without making permanency orders, the district court must have 
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intended the guardianship to be a permanent placement. They then argue, without citing 

authority, that the denial of a motion to change permanent custody is not an appealable 

order under the Code for Care of Children. But this case was filed in probate court, and 

K.S.A. 2018 Supp. 59-2401a(b)(5) permits appeals from "any final order, judgment or 

decree entered in any proceeding pursuant to: . . . the act for obtaining a guardian or 

conservator, or both . . . ." We have no difficulty holding that this statutory language is 

broad enough to encompass an order denying a motion to terminate a guardianship.

However, the issue highlights the confused nature of the proceedings below. 

Alicia and Sam, the Court of Appeals, and, to some extent, the district court sought to 

take the care of the children out of the purview of the Code for Care of Children and 

place it in the jurisdiction of the Probate Code. This shift violated the stated purpose of 

the Code for Care of Children, which was to make "the safety and welfare of a child . . . 

paramount in all proceedings under the code." K.S.A. 2018 Supp. 38-2201(b)(1). The 

parties and the courts are now faced with the task of sorting out the proceedings that have 

taken place under these separate and distinct statutory schemes. It is anticipated that the 

district court will accomplish that task on remand.

Judgment of the Court of Appeals reversing the district court is reversed. We 

remand to the district court with directions as stated above.