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In re A.L.R.

Supreme Court of Missouri, En Banc

March 14, 2017

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

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

          LAURA DENVIR STITH, JUDGE.

         A.L.S. (Mother) appeals the trial court's order issuing letters of guardianship and conservatorship of A.L.R. to certain paternal cousins. Mother argues this Court should hold that due process requires the burden of proof in guardianship proceedings involving a minor is proof by clear and convincing evidence that the parent is unable or unfit to be the child's guardian. She says the petitioner (Grandfather) did not present substantial evidence of her unfitness and the finding that she was unfit was against the weight of the evidence under this standard. In the alternative, Mother argues section 475.030.4[1] violates her due process rights if interpreted to require proof of unfitness by only a preponderance of the evidence. Finally, Mother argues the trial court erred in overruling her motion to continue the guardianship hearing.

         The burden of proof in a guardianship proceeding involving a minor under section 475.030.4 is proof by a preponderance of the evidence, not proof by clear and convincing evidence. Grandfather presented substantial evidence at trial sufficient to meet this standard, and the trial court's judgment was not against the weight of the evidence. This Court does not reach Mother's argument that use of a preponderance standard by the trial court violated her due process rights both because the record is silent as to whether the trial court used a preponderance standard and because Mother failed to raise her due process argument in the trial court and cannot raise it for the first time on appeal. Mother also has failed to show the trial court abused its discretion in denying her motion for continuance. For all of these reasons, the judgment is affirmed.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         J.R.L.R. is A.L.R.'s father. Grandfather is A.L.R.'s paternal grandfather. In February 2014, while still a minor, Mother moved into Grandfather's home to live with Father. It is unclear whether Mother became pregnant before or after moving in with Father. The two dropped out of high school. A.L.R. was born in November 2014, when Mother was 16 years old. Mother, Father, and A.L.R. continued to live with Grandfather.

         In June 2015, Father was murdered by a man who had had a sexual encounter with Mother. Mother testified the encounter was non-consensual, although she declined to press rape charges. The parties dispute whether Father had already asked Mother to move out prior to the murder, but it is undisputed that, two days after the funeral, Grandfather asked Mother to move out with A.L.R.

         Mother and A.L.R. moved in with Mother's friend J.K. from the middle of June until the end of July, during which time Mother was able to obtain a part-time job at Casey's General Store. J.K. provided supplies, clothes, babysitting, and food for A.L.R. On July 2, Grandfather filed a petition to establish a guardianship and conservatorship jointly in two paternal cousins, alleging Mother was unable or unfit to assume the duties of guardianship pursuant to section 475.030.4. A hearing was set for July 27 but was continued to August 13 after Mother sought a continuance, arguing she had just obtained counsel and needed more time to prepare for trial.

         In the meantime, Mother had an altercation with J.K.'s 17-year-old daughter. J.K. then told Mother to move out.[2] After staying four days with another friend, Mother and A.L.R. moved in with Mother's mother in a nearby city. Mother then sought another continuance, arguing she needed more time to be able to show she was not unable or unfit, especially given the recent tragic death of Father. Grandfather opposed the motion, repeating allegations in his petition that Mother was not providing a stable home and was not able to care for A.L.R.

         The parties appeared on the date of the scheduled hearing, August 13, 2015. The court heard arguments on Mother's motion for continuance but denied the motion. Grandfather called six witnesses and submitted photographic exhibits. Mother called herself and one friend. The guardian ad litem - having first met Mother and A.L.R. only at the earlier hearing and Mother not having met with her otherwise - did not take a position on the guardianship petition but asked a few questions of some of the witnesses on cross-examination.

         Following the hearing, the court issued a two-page judgment finding Mother "unable and unfit to properly care for the minor child" and ordered the issuance of letters of guardianship and conservatorship to the two cousins as co-guardians. Although the judgment was silent as to whether the court utilized a clear and convincing or a preponderance standard in determining Mother was unfit, Mother filed a motion for a new trial arguing for the first time that a clear and convincing standard applied, which Grandfather had failed to meet. The court overruled the motion after a hearing. Mother appealed, claiming the trial court had utilized the wrong burden of proof and arguing, for the first time, that due process requires proof of unfitness by clear and convincing evidence, and that, if section 475.030.4 requires only proof by a preponderance of the evidence, then it is unconstitutional.

         II. STANDARD OF REVIEW

         As in other bench-tried cases, this Court will affirm the judgment unless it incorrectly declares or applies the law, is not supported by substantial evidence, or is against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The interpretation of a statute is a question of law which this Court determines de novo. Nelson v. Crane, 187 S.W.3d 868, 869 (Mo. banc 2006). The primary goal in statutory interpretation is to discern the intent of the legislature from the language in the statute. Id. at 869-70.

         III. SECTION 475.030.4 REQUIRES PROOF OF INABILITY OR UNFITNESS BY A PREPONDERANCE OF THE EVIDENCE, NOT ...


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