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In re A.L.R.

Court of Appeals of Missouri, Western District, Second Division

July 26, 2016

IN THE MATTER OF A.L.R.; K.R., Respondent,
v.
A.L.S., Appellant.

         Appeal from the Circuit Court of Cooper County, Missouri The Honorable Keith M. Bail, Judge

          Before Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

          CYNTHIA L. MARTIN, JUDGE

         A.L.S. ("Mother") appeals from the trial court's judgment appointing Holly Rehmer and Joseph Rehmer (collectively "the Rehmers") as co-guardians over the person of A.L.R. ("Child") and as co-conservators over the estate of Child. Mother asserts that the trial court erred: (1) because it failed to apply a clear and convincing standard of proof to its determination that Mother was unable and unfit to serve as the natural guardian of Child; (2) because no substantial evidence supports the determination that Mother was unable and unfit to serve as the natural guardian of Child; (3) because the determination that Mother was unable and unfit to serve as the natural guardian of Child was against the weight of the evidence; and (4) in denying Mother's motion to continue the hearing scheduled to adjudicate the guardianship petition. Because clear and convincing evidence does not establish that Mother is unable or unfit as those terms are legally defined to serve as Child's presumptive natural guardian, we reverse.

         Factual and Procedural Background[1]

         Child was born on November 11, 2014, to Mother, then sixteen years old, and J.R.L.R. ("Father"). At the time of Child's birth, Mother and Father resided with Father's father, K.R. ("Grandfather"), with whom Mother and Father had been living since approximately February 2014. Father was murdered in early June 2015 by a man who had a sexual encounter with Mother.[2] Grandfather made Mother and Child leave his home on June 13, 2015.

         Mother and Child moved into the home of Julie Kesler ("Kesler") whose daughter was a friend of Mother's. While living with Kesler, Mother obtained a job working for Casey's General Store in Boonville.

         On July 2, 2015, Grandfather filed a petition for appointment of co-guardians and co-conservators ("Petition"). The Petition alleged that Child "is in need of Co-Guardians and Co-Conservators because she is a minor child and the mother is not currently capable of properly caring for the minor child or managing her financial affairs." In particular, the Petition asserted: "[Mother] is unfit and unable to properly care for [Child] in that [Mother] is only 17 years of age, has not graduated from school, and is not currently enrolled in school. [Mother] is unemployed, has no vehicle, and is without a permanent residence." The Petition alleged that "[i]t is in the best interests of [Child], a minor child, that Holly E. Rehmer and Joseph A. Rehmer, paternal cousins, be appointed her Co-Guardians and Co-Conservators."

         Mother and Child continued to live with Kesler until July 29, 2015, when Kesler asked Mother to leave following a disagreement between Mother and Kesler's daughter. Mother and Child temporarily lived with Joe and Tiffany Rhorer (collectively "the Rhorers") until she could arrange a transfer to the Casey's General Store in Fulton. Mother and Child then moved to Fulton to live with Mother's mother. At the time of the hearing on the Petition, Mother was still living with her mother in Fulton, but Mother had been approved to live in Callaway County public housing and was on the waiting list for an apartment.

         On August 10, 2015, Mother filed a motion seeking to continue the August 13, 2015 hearing on the Petition ("Motion for Continuance"). The Motion for Continuance asserted that "Father's death occurred on or about June 7, 2015, and considering the impact of this tragedy on the parties, insufficient time has passed to determine the veracity and weight of [Grandfather's] allegations." Grandfather opposed the Motion for Continuance, arguing that Mother "has failed to provide a stable home and appropriately care for" Child. Child's guardian ad litem expressed no objection to the Motion for Continuance because he had not yet had the opportunity "to make contact with [Mother] for visitation" and because he had "been advised that [Mother] is moving to a more permanent residence." The trial court denied the Motion for Continuance.

         During the August 13, 2015 hearing on the Petition, Grandfather presented testimony from six witnesses. In opposing the Petition, Mother testified and presented the testimony of a friend. The testimony presented at the hearing is discussed later in this Opinion.

         The guardian ad litem did not present evidence or testify. The guardian ad litem had not visited with Mother before the hearing, and based on the record, does not appear to have visited with the Child before the hearing.

         At the conclusion of the hearing, the trial court orally indicated that it intended to "issue[] letters of guardianship of person and letters of conservatorship of estate" to the Rehmers and ordered proposed findings be filed within fifteen days.

         On August 20, 2015, the trial court entered its judgment ("Judgment"), which concluded: "[Mother] is unable and unfit to properly care for the minor child. Further, because of the minor child's age and surrounding circumstances, she is in need of care and supervision and the appointment of a Guardian and Conservator is appropriate." The judgment appointed the Rehmers as co-guardians of Child and co-conservators of Child's estate. The Judgment made no provision for visitation between Mother and Child.

         Mother filed a motion for new trial or, in the alternative, a motion to terminate guardianship and conservatorship, which the trial court denied.

         Mother appeals.

         Analysis

         Mother presents four points on appeal. Her first point argues that the trial court committed legal error because it failed to use the clear and convincing evidence standard of proof to determine that Mother is unable and unfit to serve as the natural guardian of Child. Mother's second and third points respectively argue that the trial court erred in concluding that Mother was unable and unfit to serve as the natural guardian of Child because that determination is not supported by substantial evidence and is against the weight of the evidence. Mother's final point contends that the trial court abused its discretion in denying her Motion for Continuance.

         Mother's first three points on appeal collectively address whether the evidence, given the required standard of proof, and subject to our standard of review, supports the trial court's legal determination that Mother was unable and unfit to serve as the guardian for Child. We address those points collectively.

         Points One, Two, and Three

         Missouri's Guardianship Statutes Permit a Parent's Presumptive Role as the Natural Guardian of a Minor To Be Rebutted Where a Parent Is Unwilling, Unable, or Unfit To Serve as Guardian

         Missouri statutes provide for the appointment of guardians "to protect the well-being of individuals who are not able to care for themselves." In re Link, 713 S.W.2d 487, 493 (Mo. banc 1986). Missouri's guardianship statutes, which are housed in Chapter 475, [3] authorize guardianships for: (i) incapacitated persons; and (ii) minors.[4] We are only concerned in this case with minor guardianships.

         The term "guardian" is defined at section 475.010(7) as "one appointed by a court to have the care and custody of the person of a minor." The appointment of a guardian for the person of a minor is one of at least four ways child custody can be adjudicated. State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178, 180 (Mo. banc 1967) (observing that child custody may be adjudicated in: (1) a divorce proceeding pursuant to Chapter 452; (2) a habeas corpus proceeding; (3) a proceeding in the juvenile division of a circuit court pursuant to Chapter 211; and (4) a guardianship proceeding in the probate court pursuant to Chapter 475).

         Though Chapter 475 authorizes the appointment of a guardian over the person of a minor, it also recognizes that unless "otherwise provided for by law, the father and mother, with equal powers, rights and duties, while living, and in the case of the death of either parent the survivor, . . . is the natural guardian of their children, and has the custody and care of their persons and education." Section 475.025. Parents are thus the presumptive appropriate natural guardians for their minor children. Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. banc 1998). The appointment of a statutory guardian is not authorized, therefore, unless "no natural guardian is fulfilling the parental duties and obligations." Reece v. Reece, 890 S.W.2d 706, 710 (Mo. App. W.D. 1995).

         A guardian other than a parent may only be appointed to have the care and custody of the person of a minor as authorized by statute. Black v. Black, 824 S.W.2d 514, 515 (Mo. App. W.D. 1992) (holding that "'[t]he power to appoint guardians is purely statutory'" (quoting In re Dugan, 309 S.W.2d 145, 148-49 (Mo. App. 1957))). Letters of guardianship of the person of a minor may be granted:

(1) Where the minor has no parent living;
(2) Where the parents or the sole surviving parent of a minor are unwilling, unable or adjudged unfit to assume the duties of guardianship;
(3) Where the parents or the sole surviving parent have had their parental rights terminated under chapter 211.

         Section 475.030.4. In the first and third scenarios, the presumption in favor of parents as natural guardians is plainly negated by death or termination of parental rights. In the second scenario, the presumption in favor of parents as natural guardians may be overcome by evidence that a "parent is unfit, unable or unwilling to take charge of the child." See In re L.M., No. ED102342, 2016 WL 2339702, at *3 (Mo. App. E.D. May 3, 2016).

         Here, Mother is Child's sole surviving parent, and Mother's parental rights have not been terminated pursuant to Chapter 211. Mother thus enjoys a rebuttable presumption that she is the appropriate natural guardian and conservator for the person and estate[5] of Child pursuant to section 475.025. Notwithstanding this presumption, the trial court found that Mother was "unable and unfit to properly care for the [Child]" pursuant to section 475.030.4(2). The trial court further found that because of Child's "age and surrounding circumstances, she is in need of care and supervision and the appointment of a Guardian and Conservator is appropriate." As a result, Mother's custodial rights to Child and her inherent power to act as conservator over Child's estate have been severed, and can only be restored by the procedures set forth in Chapter 475.

         Clear and Convincing Evidence Is Required To Establish that a Parent is Unwilling, Unable, or Unfit To Serve as the Presumptive Guardian for a Minor

         Mother's appeal challenges the trial court's appointment of a guardian for Child.[6]Mother first point on appeal claims that the trial court failed to apply the proper standard of proof--clear and convincing evidence--to its determination that she was "unable and unfit" to care for Child pursuant to section 475.030.4(2). "The clear, cogent and convincing standard of proof is met when evidence 'instantly tilt[s] the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true.'" In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984) (quoting In re O'Brien, 600 S.W.2d 695, 697 (Mo. App. W.D. 1980)). Grandfather argues that the proper standard of proof for a determination pursuant to section 475.030.4(2) is a preponderance of the evidence. The preponderance of the evidence standard of proof is met when evidence "is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows the fact to be proved more probable than not." Vaught v. Vaughts, Inc./S. Mo. Constr., 938 S.W.2d 931, 941 (Mo. App. S.D. 1997), overruled on unrelated grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)).

         The Judgment (and indeed the entire record) is silent about the standard of proof utilized by the trial court to find that Mother was unable and unfit to serve as Child's natural guardian pursuant to section 475.030.4(2). Absent evidence to the contrary, "[w]e assume that the trial courts of this state know the law." Dycus v. Cross, 869 S.W.2d 745, 751 (Mo. banc 1994). Mother's first point on appeal requires us to presume that the trial court used a preponderance of the evidence standard of proof, even though ...


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