Release of the outgoing professional beistand from the final report and final accounts upon change of beistand within an ongoing accounting period; mother's appeal dismissed

Facts

The parties are the mother (appellant) and the Child and Adult Protection Authority Nordbünden (KESB). The parents of the child [C.] , born in 2013, are not married. The KESB repeatedly reorganised personal contact between the child and the father; implementation problems arose repeatedly. Following a parenting capacity expert report, family therapy directives and a hearing on 28 August 2019, the KESB opened proceedings on the father's request to transfer custody, ordered a new expert report and suspended the right of access. The mother challenged these decisions successfully only in part; the Cantonal Court of Grisons dismissed her appeals by decision of 26 March 2020, and the Federal Supreme Court dismissed her appeal by judgment 5A_393/2020 of 17 August 2020.

The professional beistandschaft [U.] was left by the previous beistand [D.] as of 30 April 2020. By order of 2 July 2020, the KESB appointed [E.] as new beiständin with retroactive effect from 1 July 2020. The ongoing accounting period until 31 March 2022 continued to apply. [D.] was released from the obligation to submit a final report and final accounts; a decision on his discharge was to be made at the next periodic accounting.

The mother filed an appeal against this with the Cantonal Court of Grisons, which on 3 May 2021 entered into the appeal only in part and otherwise dismissed it; the complaints concerning general directives, earlier reports and the approval request of [F.] of 29 June 2020 were not addressed, as they were not the subject of the order of 2 July 2020. The request for legal aid was dismissed for lack of substantiation.

By civil law appeal of 9 June 2021, the mother requested the annulment of the cantonal decision and an instruction to the KESB to obtain the final report from the former beistand. She further applied for legal aid and appointment of counsel, and for service of the prior files. The Federal Supreme Court did not obtain any responses.

Principal question: Whether the release of the beistand from the final report and final accounts was contrary to federal law, in particular whether the Cantonal Court misjudged the function of the final report and thereby violated Art. 425 CC.

Considerations

Admissibility: The civil law appeal is directed against a final decision of a higher cantonal court (Art. 72 para. 2 let. b no. 6, Art. 75, Art. 90 FSCA) in a non-pecuniary matter; the mother has standing (Art. 76 para. 1 FSCA). The 30-day time limit for appeal (Art. 100 para. 1 in conjunction with Art. 42 para. 1 FSCA) has been observed.

Access to files: The request for service of the prior-instance files was rejected. The prior files must in principle be requested from the prior instance within the time limit for appeal; a request first made before the Federal Supreme Court does not entitle the appellant to a subsequent supplementation of the appeal, in particular where the appeal was filed on the last day of the time limit (judgment 9C_215/2020, not published in BGE 147 V 312).

Admissibility requirements and principle of stating grounds: Under Art. 42 para. 2 and Art. 106 FSCA, the appeal must set out in concise form how the contested decision violates the law. The appellant did not show how the Cantonal Court should have entered into the unaddressed aspects, which is why it did not enter into them. Nor was a procedural defect before the KESB substantiated. Only the complaint of a violation of Art. 425 CC due to a misjudgment of the function of the final report is admissible.

Legal basis: Under Art. 410 et seq. CC, the beistand renders accounts and reports; the authority reviews and approves (Art. 415 CC). Under Art. 425 para. 1 CC, the beistand submits the final report at the end of office and, where applicable, submits the final accounts; the authority may release him from this upon termination of the employment relationship (Art. 425 para. 1 sentence 2 CC). In discretionary decisions, the Federal Supreme Court intervenes only if the lower court has manifestly exercised its discretion incorrectly, i.e. takes into account extraneous considerations, disregards essential factors, or the decision is manifestly unfair (BGE 142 III 612 E. 4.5).

Function of the final and accounting reports: Accounting reports serve to review and steer the conduct of office and additionally have an informational function; the final report serves only information purposes and has no direct substantive legal…