Court of Appeals of Missouri, Eastern District, Second Division
STATE OF MISSOURI, EX REL., S.F.F. MINOR BY HER NEXT FRIEND, S.L.B. N/K/A S.L.F. AND S.L.F., INDIVIDUALLY, Appellants,
from the Circuit Court of Jefferson County Honorable Nathan
now known as S.L.F. ("Mother"), appeals from a
judgment of modification entered by the trial court, finding,
inter alia, that there have been changes in
circumstances so substantial and continuing as to make the
terms of the judgment of paternity not in the best interests
of the minor child, S.F.F. ("Daughter"), and
modified the judgment of paternity by purporting to adopt
Respondent's proposed parenting plan and award S.C.G.
("Father") sole legal custody of Daughter. We
reverse and remand.
born in October 2011, is the daughter of Mother and Father.
On September 26, 2013, a Judgment and Decree of Paternity was
entered upon agreement without a trial, inter alia,
awarding Mother sole legal and sole physical custody of
Daughter; awarding Father alternate weekends with Daughter
following a nine-month graduated visitation schedule; and
ordering Father to pay $450 per month in child support and
provide health insurance for the child.
filed a Motion to Modify Judgment and Decree of Paternity on
August 5, 2015, alleging changed circumstances such as
Mother's refusal to honor Father's custody rights and
allowing Daughter to decide whether she will go with Father.
Father requested joint legal and joint physical custody and
changing the child's surname to Father's, which he
alleged were requests made in the child's best interest.
guardian ad litem ("GAL") entered her appearance in
the case on October 30, 2015. On November 6, 2015, Mother
filed a Counter-Motion to Modify Judgment and Decree of
Paternity, arguing that Father's current visitation
endangers Daughter's physical health and/or impaired her
emotional development based on allegations of sexual abuse.
Mother filed a Verified Motion for Temporary Restraining
Order with Notice and Notice on Hearing for Application for
Preliminary Injunction on November 17, 2015. Although Father
filed a response, the parties entered a Consent Temporary
Restraining Order on November 18, 2015, to supersede the
existing custody orders: Father was ordered to have
therapeutic visits with Daughter of up to two hours per week
through COMTREA; the parties were ordered to contact
COMTREA to arrange their orientations; the charges for paid
visits were to be paid initially by Father and could be
reallocated later; the trial setting of December 17, 2015,
was vacated and the case was set on the January 11, 2016 call
docket; and Mother was ordered to post bond in the amount of
$25. An Amended Consent Temporary Restraining Order
("TRO") provided that Father's therapeutic
visits with Daughter would be extended to two hours per week
supervised and transferred from SAEP to the PAVERS program, which is
27, 2016, Father filed an Amended Motion to Modify Judgment
and Decree of Paternity, requesting sole legal and sole
physical custody of Daughter, alleging that "shortly
after [Father] was awarded overnight visitation, [Mother]
contacted law enforcement indicating that [Father] had abused
his daughter;" "[t]hat [Mother] made allegations of
a sexual nature against [Father];" "[t]hat said
allegations have been unsubstantiated by [the Division of
Family Services] after interview, [Child Advocacy Center],
and investigation." Father added in his amended motion
that within one week of the allegations being
unsubstantiated, a new hotline call was made to the State,
amending the facts of the original allegation to include more
significant abuse, despite Daughter's clear description
of the alleged abuse at the time in the Child Advocacy Center
("CAC") and her repeated description of the event
to her counselor. The motion also alleged that in December
2015, Daughter specifically told her therapist that Mother
told her to say she did not want to see her dad, that Mother
has caused Daughter to miss supervised visits with Father,
that she alienates Daughter from Father, and she has no
intent to co-parent with Father. Furthermore, Father alleged
that Mother has a history of mental health problems,
substance abuse, and lost custody of another child to that
child's father, and that Father even observed her
drinking (or impaired) in the presence of Daughter.
15, 2016, Father filed a Motion for Temporary Restraining
Order and Application for Preliminary Injunction, with
similar allegations as the Amended Motion to Modify Judgment
and Decree of Paternity, adding that Mother's second set
of allegations were unsubstantiated by the Division of Family
Services, and that Mother then called the State hotline a
third time. Father alleged that Daughter was gradually
becoming more withdrawn and less affectionate toward Father
during his visits, and immediate and irreparable harm could
come to Daughter if Mother's alienation did not stop.
27, 2016, the parties and GAL entered into a Consent Order
Amending Temporary Restraining Order, which modified the TRO
in the following ways:
1) Father was given unsupervised visitation on every weekend
in July for the specified 24-hour period of time; the TRO
hearing and hearing on Preliminary Injunction was set for
July 27, 2016 at 1 p.m.
2) Exchanges were to take place at the Pevely Police Station.
3) For all transfers, each parent would remain in their car
and have no interaction. Another person of their choosing
should accompany them and these persons were to exchange
Daughter inside the station.
4) For the first two visits, no telephone contact between
Mother and Daughter would occur. Thereafter both parents
could call to speak with Daughter once each day that she was
with the other parent.
5) The parties were to sign up for talkingparents.com within
three days and utilize that site to communicate unless there
was an emergency.
6) At Father's request, he would also continue his
two-hour visits on Wednesdays through the PAVERS program at
27, 2016, Mother, Father, and the GAL entered into a consent
order and the trial court further agreed to amend the TRO so
that Father would have custody of Daughter every weekend,
from Friday evening until Sunday evening except during his
National Guard weekends, and have two-hour PAVERS visits
every other Wednesday, alternating with overnight visits
every other Wednesday evening until Thursday morning.
matter was tried on September 27 and 29, 2016, at which time
evidence was adduced from both parties.
and Father were given until October 28, 2016, to submit their
proposed findings of fact. Father filed his on October 14,
2016, and Mother filed hers on October 26, 2016. The trial
court entered the judgment on November 14, 2016, simply
signing Father's Proposed Judgment of Modification of
Paternity, Findings of Fact and Conclusions of Law, and
making two minor corrections in the first paragraph of the
document (hereinafter, the "Judgment"). In the
Judgment, the court finds "there have been changes in
circumstances so substantial and continuing as to make the
terms of the [September 26, 2013] Judgment not in the best
interests of the child, and modification of the order is in
the best interests of the child." The trial court found
that Father's proposed parenting plan, Exhibit 5, is in
the best interests of the child, in addition to Mother having
limited visitation and Father having sole legal custody
"due to Mother's continued alienating behaviors, and
her untreated mental health diagnoses."
filed a motion for new trial on December 9, 2016, which was
denied on January 5, 2017. Mother filed her Notice of Appeal