IN THE MATTER OF A.L.R.
A.L.S., Appellant. K.R., Respondent,
from the Circuit Court of Cooper County, Missouri Honorable
Keith M. Bail, Judge
DENVIR STITH, JUDGE.
(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 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
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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.
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
meantime, Mother had an altercation with J.K.'s
17-year-old daughter. J.K. then told Mother to move
out. 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.
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.
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.
STANDARD OF REVIEW
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.
SECTION 475.030.4 REQUIRES PROOF OF INABILITY OR UNFITNESS BY
A PREPONDERANCE OF THE EVIDENCE, NOT ...