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In re Estate of R.M.T.

Court of Appeals of Missouri, Western District, First Division

June 25, 2019

JOSEPH W. MEYERS, Appellant.

          Appeal from the Circuit Court of Caldwell County, Missouri The Honorable Jason A. Kanoy, Judge

          Before Victor C. Howard, Presiding Judge, Lisa White Hardwick, Judge and Gary D. Witt, Judge


          Gary D. Witt, Judge

         Appellant Joseph Meyers ("Father") appeals the order of the probate division of the Circuit Court of Caldwell County, appointing Bonita Tipton ("Grandmother") guardian of R.M.T ("Child"). On appeal, Father argues that the circuit court erred in determining that he was unwilling, unable, or unfit to assume the duties of guardianship over Child. We affirm.

          Factual Background

         Child was born on September 24, 2007, to Father and Barbara Tipton ("Mother"). Grandmother is Child's maternal grandmother. In 2017, Mother was granted sole legal and physical custody of Child and Father was ordered to pay child support ("2017 Modification"). Mother had issues with drugs and at one point had been incarcerated due to these issues. Child began living with Grandmother in Hamilton, Mo. on February 15, 2018. On April 18, 2018, Grandmother filed a petition seeking to be appointed as guardian of Child ("Petition"). At the time of the guardianship hearing, Mother was not incarcerated and resided in Chillicothe, Mo. even though Child was residing with Grandmother. Mother consented to the appointment. Father filed an answer opposing the appointment.

         The trial was held on September 28, 2018.[1] Grandmother testified that Father had not had visitation with Child since August 14, 2016. At that time, Child had stayed with Father for approximately six weeks. Grandmother alleged that when she and Mother met Father to pick-up Child, Father's wife ("Step-Mother") grabbed Child by the arm, which Child had recently broken, spun Child by the arm, and told her to get back into Father's vehicle. Child broke free and returned to Grandmother's vehicle and the three drove to the police station and Mother and Child went in to file a report. Grandmother alleged that Child had shared that she was rarely allowed to call home and that, when she did, Step- Mother was always present listening. Child was allegedly forced to eat spilled food off the floor and at one point had been locked out of the house. Father denied any knowledge of these incidents. Grandmother testified that she felt that Father was unfit because he did not protect Child from Step-Mother.

         Grandmother also testified that between the summer of 2016 and the 2017 Modification, Father was supposed to have visitation every third weekend of the month but he failed to exercise this right. Following the 2017 Modification, visitation was dependent upon the agreement of the parties but Father did not attempt any visitation until two weeks before the hearing on the guardianship. Father and Child spoke on "Facebook or messaging" and on one occasion arranged for him to come visit but ultimately Father did not come nor did he communicate why he did not attend. Child was emotionally upset by him failing to show up.

         Father had been paying child support to Mother although it is unclear from the legal file when that began. Father testified that he was not aware that Child was residing with Grandmother and that, despite attempts to locate her, he only became aware of her whereabouts after he was served with the Petition. Father maintained that the 2016 visit with Child had been good and there were no issues between Child and Step-Mother. Father alleged that at the 2017 Modification hearing he "didn't have a lawyer. . . . I was not allowed to represent myself to find out anything or ask any questions or nothing. I was told that I can't say anything." Father also justified his failure to attend the recent visitation by saying "How do I know when I come up here to see her if that [sic] I'm going to be driving all the way up here and no one shows up?"

          Step-Mother also testified that Mother was the aggressor in the 2016 altercation. Further, Step-Mother testified that she and Child "get along . . . just great."

         Mother did not attend the hearing.

         Following the hearing, the court granted Grandmother guardianship finding in relevant part:

Court finds natural mother has consented to appointment of guardian. Court finds natural father has abandoned minor child and is, therefore, unwilling to provide care for minor child. Court, therefore, finds minor child in need of guardian. Court finds ...

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