Court of Appeals of Missouri, Eastern District, Second Division
IN RE: THE MATTER OF: A.A.M. BY NEXT FRIEND J.D.S. and J.D.S., INDIVIDUALLY, Petitioners/Respondents.
from the Circuit Court of Jefferson County Honorable Troy
B. SULLIVAN, P.J.
and Mary Verner (the Verners) appeal from the trial
court's judgment declaring J.D.S. (Father) the biological
father of A.A.M. (Child) and awarding physical custody of
Child to Father and legal custody to Father and Father's
mother (Grandmother) on Father's Petition for Declaration
of Paternity. We affirm.
and Procedural Background
was born on April 3, 2012. At the time of Child's birth,
Mother was married to K.M., the putative father. On or about
May 17, 2012, Child was removed from Mother's home and
taken into protective custody in cause number 12JE-JU00301
(juvenile action). Child was placed in the temporary legal
and physical custody of the Division of Family Services
(Division), who placed Child with Janice Vail (Vail), one of
Mother's aunts. The Verners, who are Child's maternal
great-aunt and great-uncle, visited Child during her
placement with Vail and initiated steps to adopt Child.
March 2013, Father was named as Child's new putative
father and on April 1, 2013, after paternity testing, was
determined to be Child's biological father. In June 2013,
Father began visitation with Child.
5, 2013, the Verners filed a guardianship petition in
13JE-PR00270 (guardianship action) alleging Mother and Father
were unfit, unable, or unwilling to assume the duties of
19, 2013, Father filed a Petition for Declaration of
Paternity (paternity action) in the underlying case seeking
to establish his paternity and an order granting him sole
legal and physical custody of Child. The attorney serving as
Child's guardian ad litem in the juvenile case was
appointed for Child in the paternity action. On August 30,
2013, in the juvenile action, the Division placed Child in
Father's physical custody and Child began residing with
October 2, 2013, the Verners filed their initial motion to
intervene in the paternity action. The Verners alleged Father
was disabled due to an automobile accident that left him with
brain damage affecting his mental capacity, memory, mood,
behavior and ability to function in daily life. The motion
contained general allegations pursuant to Section
452.375.5 that Mother and Father were unfit;
unsuitable; or unable to be custodians of Child and,
alternatively, the welfare of Child demanded and it was in
the best interest of Child for the Verners to be permitted
the right to intervene in the paternity action and the court
grant them physical and legal custody of Child or visitation
rights to Child. The motion further sought to consolidate the
three pending matters - the juvenile case; the guardianship
case; and the paternity action - and requested the court
order psychological testing and a custody evaluation prior to
custody or visitation being awarded to any party. On October
30, 2013, the trial court held a hearing on the Verners'
Motion to Intervene in the paternity action and denied the
December 2, 2013, the Verners filed a motion to reconsider
their motion to intervene asserting Section 452.375.5 permits
any person seeking third-party custody or visitation to
petition the court to intervene. On December 5, 2013, the
trial judge recused herself on her own motion and the case
was assigned to another judge for further proceedings. On
January 27, 2014, the trial court granted the Verners'
motion to reconsider and, after a hearing, denied their
motion to intervene.
7, 2014, the court in the guardianship action granted the
Verners' motion for psychological testing and ordered
Father to undergo psychological and neuropsychological
evaluations to be paid for by the Verners.
December 11, 2014, the Verners filed an Amended Motion to
Intervene and for Third-Party Custody. The Verners again
alleged pursuant to Section 452.375.5 that Mother and Father
were unfit; unsuitable; or unable to be custodians, and the
welfare of Child demanded and it was in the best interest of
Child that the Verners be granted custody or visitation with
Child. The Verners requested consolidation of the pending
cases and that the paternity court delay entry of a final
judgment until after the juvenile case was complete.
December 12, 2014, the juvenile case was dismissed. That day,
the trial court in the paternity action issued a Temporary
Order and Judgment of Paternity finding Father was
Child's biological father and it was in the best interest
and well-being of Child that her legal and physical custody
be awarded to Father and that Mother receive supervised
April 29, 2015, the guardianship and paternity actions were
consolidated. On June 19, 2015, in the guardianship action,
the Verners filed an Amended Motion to Release Full
Neuropsychological and Psychological Evaluation seeking to
have the experts' reports regarding Father released to
them. The court denied the Verners' request for the full
reports, releasing the experts' reports only to the
guardian ad litem and Father's attorney and providing
only the experts' conclusions to the Verners.
August 19, 2015, the trial court denied the Verners'
Amended Motion to Intervene in the paternity action.
September 28, 2015, the Verners filed a Petition for
Disqualification of Judge seeking to disqualify the trial
court judge on the consolidated guardianship and paternity
actions asserting the court's refusal to release the full
contents of the medical reports regarding Father to them was
prejudicial and denied them due process, and the court's
comments demonstrated the court had prejudged the case.
October 5, 2015, the court granted the Verners' Petition
for Disqualification in the guardianship proceeding and
denied the petition in the paternity action because the
Verners were not a party to the case.
November 5, 2015, Grandmother filed a Motion to Intervene in
the paternity action and a request for joint legal custody of
child, which was granted. Also that day, the trial court
entered its Judgment and Declaration of Paternity. The court
found Father had limited physical ability due to injuries
suffered from a car accident in 1992; however, based upon the
court's observations; the evidence presented; and the
guardian ad litem's investigation, the court found Father
had no limitations affecting his ability to parent Child
rendering him unwilling, unfit, or unable to parent Child.
The court found Grandmother was willing, fit, and able to
share legal custody decision making with Father, if
necessary. The court found the best interest of Child
required Father and Grandmother share joint legal custody and
Father be awarded sole physical custody. The court found
Father was willing, fit, and able to parent without the need
to grant Grandmother or any other person joint physical