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In re A.A.M.

Court of Appeals of Missouri, Eastern District, Second Division

June 20, 2017

IN RE: THE MATTER OF: A.A.M. BY NEXT FRIEND J.D.S. and J.D.S., INDIVIDUALLY, Petitioners/Respondents.

         Appeal from the Circuit Court of Jefferson County Honorable Troy Cardona

          SHERRI B. SULLIVAN, P.J.

         Introduction

         John 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.[1] We affirm.

         Factual and Procedural Background

         Child 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.

         In 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.

         On June 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 guardianship.

         On July 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 Father.

         On 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[2] 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 motion.

         On 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.

         On May 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.

         On 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.

         On 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 visitation.

         On 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.

         On August 19, 2015, the trial court denied the Verners' Amended Motion to Intervene in the paternity action.

         On 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.

          On 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.

         On 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 custody rights.

         This appeal follows.

         Points ...


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