dissenting:
I respectfully dissent. The probate court had jurisdiction to hear the mother’s and aunt’s petitions for removal of the guardian, as the majority concludes. The record, however, fully supports the probate court’s order denying the petitions. Neither the allegations in the petition nor the testimony at the hearing indicate that it is in the best interests of the children to be removed from custody of the guardian. Moreover, they present no grounds to justify either a remand for a home study or a suggestion that jurisdiction be transferred to juvenile court. Accordingly, I would affirm the trial court.
At the time of the guardian’s appointment, the guardianship statutes allowed such an appointment without regard to the status of parental rights. Minn.Stat. § 525.54 (1978). The petitioner for guardianship was required to state the names and addresses of the parents. Minn.Stat. § 525.542 (1978). Here the mother consented to the guardian’s appointment. That she had reason to consent is shown by evidence jn the record of her inability to parent not only these children but her other children as well.
*610Neither the facts of this case, therefore, nor the statutes themselves suggest a necessary conflict between probate court jurisdiction over guardianship and juvenile court jurisdiction over questions of parental rights. The majority would create such a conflict by terming guardianship of a minor a de facto termination of parental rights.
The majority states that the facts of the transfer of the children’s care are unclear. However, while no finding was made by the trial court, the testimony of the guardian’s daughter that the mother offered to sell the children for two beers was not rebutted or impeached by the mother.
The petitions for removal of the guardian both allege failures to comply with procedural requirements imposed on guardians. See Minn.Stat. §§ 525.58, subd. 1 (1984) (filing of annual account), subd. 2 (notice to a ward of the right to petition for restoration of capacity), 525.56, subd. 4(3) (1984) (representing the ward in court proceedings). None of these requirements were applicable here. More importantly, the evidence presented to support the petitions does not support this court’s decision to direct home study and suggest transfer of jurisdiction.
The statute requires the probate court to determine whether removal of the guardian would be “in the best interests of the ward[s].” Minn.Stat. § 525.6195(a) (1984). The mother’s withdrawal of consent did not alter this standard, or transform the proceeding into a review of the 1979 guardianship appointment.
The mother and aunt failed to present any evidence indicating the best interests of the children lay in transferring custody to the aunt. By limiting their petition to procedural grounds, they sought to evade the issue of the fitness of either mother or aunt to properly care for the children. When they objected to such evidence being presented by the guardian, the probate court properly noted that this issue was raised by the petition for appointment of the aunt as a successor guardian. Nearly all the evidence relating to the welfare of the children was presented by the guardian. Nevertheless, the majority here finds in the failure of the mother’s proof a basis for juvenile court intervention in the guardianship.
Testimony presented by the guardian showed that under her care the children are happy, engaged in social activities, attending church and doing well in school. As the majority notes, the guardian has provided the only stability and nurture these children have known. The mother has not seen the children in six years. She has three other children, none living with her. Two of her children have been adopted and the other, whom she admitted she could not care for adequately, is living with her sister, the second petitioner here. The mother recalled telling the guardian, at the time of the appointment in 1979, of her inability to care for the children, and her relief that the guardian was providing that care.
The probate court has broad discretion to select an appropriate guardian for a ward. In Re Guardianship of Fingerholtz, 357 N.W.2d 423, 426 (Minn.Ct.App.1984), pet. for rev. denied (Minn. Feb. 6, 1985). In general, the findings of the trial court must be affirmed unless clearly erroneous. Matter of Welfare of Solomon, 291 N.W.2d 364, 367 (Minn.1980) (termination of parental rights). The evidence here amply supported the trial court’s denial of the petitions for removal and appointment of the aunt as successor guardian.
The majority relies in part on the presumption of a natural parent’s fitness for custody. Although the record does not reflect a consideration for this presumption, this deficiency is plainly due to the mother’s reluctance to allow an inquiry into her neglect and abandonment of the children. The “sale” of the children is, by itself, sufficient to rebut the presumption of parental fitness.
When it comes to a comparison of alternative custodians, or guardians, of the children, however, the majority recognizes that custody was sought for the natural aunt rather than the mother. But, while there is *611authority for consideration of family members as the most appropriate guardians, see Schmidt v. Hebeisen, 347 N.W.2d 62, 64 (Minn.Ct.App.1984) (adult ward), there is no presumption that an aunt or other extended family member is fit to parent a child. The aunt cares for five children, the guardian six; each is receiving AFDC, although the guardian’s grant is only for her grandchild. There was no evidence supporting a preference for the aunt, requiring a transfer of custody and disruption in the lives of the children.
The majority expresses concern over the uncertain legal status in which the children are currently placed. They note that no proceedings have been brought either to reunite the children with their mother or for the guardian to adopt the children. However, the fact that the parties have not availed themselves of existing alternative remedies is irrelevant to our review of the probate court’s order.
The mother could seek a court order requiring visitation. See State v. Rensch, 230 Minn. 160, 164, 40 N.W.2d 881, 883 (1950) (appointment of guardian does not of itself divest the parent of the right to custody). She could petition in juvenile court alleging the children are neglected or dependent. Minn.Stat. § 260.131, subd. 1 (1984). More importantly, she could at any time bring a petition for removal of the guardian on other than procedural grounds, allowing a comparison of alternative custodians and a fuller consideration of the best interests of the children. Minn. Stat. § 525.6195(a) (1984).
This court’s concern over the welfare of the children is well-founded. I differ from the majority, however, in seeing no grounds for further intervention, or for invocation of juvenile court jurisdiction, in the removal petitions.
The record indicates that the guardian, who is receiving AFDC, is in contact with the welfare department, and is visited by a social worker. The social worker, and responsible welfare authorities, may determine whether proper care is being provided to the children. The record indicates that the guardian called her social worker the day after the children were placed in her care. I believe Ramsey County Social Services is the proper authority to determine the adequacy of the children’s care, including income level, and the necessity of a custody or home study, not this court. Particularly not on the basis of the petitions presented here.
The probate court’s decision denying the petitions for removal was fully supported by the available evidence. Indeed, there was no evidence, other than income level, to suggest that the present guardianship is not in the best interests of the children. While the facts behind the guardianship appointment are embarrassing, they do not divest the probate court of jurisdiction, nor impugn the care given by the guardian.
The majority here departs from the proper standard of review because of deficiencies in the original guardianship appointment. That appointment, however, is not at issue, nor should this court attempt to correct it at the expense of disrupting the lives of the children. While the mother has withdrawn her consent, this comes after six years. Cf. State v. Rensch, 230 Minn. at 161-62, 40 N.W.2d at 882 (withdrawal of consent after 2 months).
The standard to be applied by the trial court was the best interests of the children. The “sale” of the children would rebut the presumption of parental fitness, if at issue. Neither that presumption, nor the low income level of the guardian, which is shared by the mother and aunt, support the remand and custody study ordered.