B.S.-S. v. Callahan

• Decision Date: 30 June 2020
• Docket Number: WD 83294
• Citation: 604 S.W.3d 342
• Parties: In re the Matter of B.S.-S., a Minor Child BY His NEXT FRIEND, Gabriel S. SNOWDEN, and Gabriel S. Snowden, Individually, Respondent, v. Rebecca Ann CALLAHAN, Appellant.
• Court: Missouri Court of Appeals

604 S.W.3d 342

In re the Matter of B.S.-S., a Minor Child BY His NEXT FRIEND, Gabriel S. SNOWDEN, and Gabriel S. Snowden, Individually, Respondent,

v.Rebecca Ann CALLAHAN, Appellant.

WD 83294

Missouri Court of Appeals, Western District.

OPINION FILED: June 30, 2020

Antony Jones, Overland Park, KS, Counsel for Appellant.

Erin Mayfield, Blue Springs, MO, Counsel for Respondent.

Before Division One: Lisa White Hardwick, P.J., Cynthia L. Martin, and Thomas N. Chapman, JJ.

Thomas N. Chapman, Judge

Rebecca Callahan appeals the judgment of the Circuit Court of Clay County, Missouri, granting Gabriel Snowden's "Motion to Modify Judgment Declaring Paternity, Parenting Time and Child Support." She argues that the circuit court erred in striking her pleadings and prohibiting her from offering evidence at the modification trial. She argues further that the circuit court erred in admitting certain medical records as exhibits at the trial. Finding no error, we affirm.

Facts & Procedural Background

B.S.-S. is the minor child of Benjamin Snowden (Father) and Rebecca Callahan (Mother). In January 2017, the Circuit Court of Clay County, Missouri entered a Judgment of Paternity, Parenting Time and Child Support (original judgment),¹ declaring Father to be the natural parent of B.S.-S. and granting joint legal and physical custody of the minor child to Father and Mother. Father was also ordered to pay child support in the amount of $475.00 per month and to provide health insurance for B.S.-S.

In March 2018, Father filed a "Motion to Modify Judgment Declaring Paternity, Parenting Time and Child Support." In his motion, he alleged that Mother had refused to allow Father his court-ordered parenting time, that Mother was a drug user and was residing in a drug house, and that Mother had falsely accused him of abusing B.S.-S. He requested sole legal and physical custody of the parties’ child and asked the court to order Mother to pay child support. The same day, Father also filed a Motion for Family Access Order, indicating that Mother had persistently refused to allow him parenting time in contravention of the original judgment.² In May 2018, Mother filed a Motion for Temporary Custody and Supervised Visitation Pendente Lite, an answer to Father's modification motion as well as a counter-motion to modify, and a motion for appointment of a guardian ad litem (GAL). In her counter-motion to modify, Mother alleged that Father had been investigated for abusing B.S.-S., that he had made only minimal efforts to see the child, and requested sole legal and physical custody. The circuit court subsequently appointed a GAL for B.S.-S.

Citing concerns about Mother's past history with illegal drug use, Father filed a motion seeking an order from the court requiring her to undergo drug testing in August 2018. He alleged that in coordination with the GAL, Mother had previously agreed to submit herself to testing without an order from the circuit court but had failed to do so. The circuit court entered an order requiring Mother to "present herself to Test Smartly within 48 hours of this Order for a 9 panel nail testing for illegal drugs, prescription drugs, alcohol and controlled substances." The order further provided that if Mother failed to present herself for drug testing, the circuit court would "presume that the test results would be adverse to her."

In September 2018, Father filed a motion for sanctions and to strike Mother's pleadings due to her failure to comply with the circuit court's order for drug testing. In the motion, Father alleged that Mother had appeared at the Test Smartly facility for testing but that a sample could not be taken at that time because her fingernails and toenails were not of sufficient length. Father contended further that Mother had not attempted to arrange another test after her initial appearance at the testing facility. Father argued that Mother's failure to comply with the order for drug testing had hindered his trial preparation and asked the court to strike Mother's pleadings and preclude her from presenting evidence at the modification trial.

The case proceeded to trial in January 2019. At trial, the circuit court began by taking up Father's motion for sanctions. The GAL joined in Father's motion to strike Mother's pleadings. In support of his motion, Father presented the testimony of Covet Padara, the coordinator of the Test Smartly facility. Padara testified that when Mother initially presented to the facility, her fingernails and toenails were not long enough to take a sample. Padara testified that he instructed Mother to return when her nails had grown and were not painted. Mother subsequently returned to the laboratory, but her nails were once again too short to conduct the test and they were also painted despite Padara's instruction. Mother was not present for Padara's testimony and the transcript reflects that she arrived late for trial, immediately after her counsel finished arguing against the motion. After receiving Padara's testimony and hearing the arguments of counsel, the circuit court ruled as follows:

THE COURT: All right, if there's nothing further, I'm going to rule. Court has taken up the motion for sanctions. The Court does rule on this motion pursuant to the rule on this motion pursuant to Rule 67.03, Rules of Civil Procedures. The Court Order to appear for drug testing is a very serious matter. It's not only a matter of discovery; it's a matter of respecting the Court Order, especially when something as serious as the best interest of a trial [sic] may be involved. Failure to do so over a long period of time based on the evidence that I have, that failure to do so was without just cause. The Court hereby grants the Motion for Sanctions. [Mother's] pleadings are stricken. And adverse influence [sic] may be drawn from the failure to submit to drug testing within compliance of the Court Order, and [Mother] is prohibited from introducing evidence at trial.

With that, [Mother] is capable of -- counsel may cross examine and make objections on evidentiary matters in [Father's] case. But outside of that, the Court will prohibit introducing evidence in her case-in-chief and on a claim defense [sic].

Father then testified in support of his motion to modify. He stated that although the circuit court had awarded the parties joint legal custody, he had not been consulted regarding important medical, educational, and childcare decisions involving B.S.-S. Father also testified regarding Mother's medical records and records pertaining to an investigation conducted by the Clay County Children's Division.³ These records indicated that Mother was using drugs during and after she had been pregnant with B.S.-S. Father also indicated that the Children's Division investigated an allegation of abuse that Mother had made against Father concerning bruises she had noticed on B.S.-S.’s backside, legs, and head. Father was later notified that the Children's Division terminated the investigation after concluding that the allegation was "unsubstantiated."

Father stated that the original judgment provided for a fifty-fifty parenting time schedule. A series of text messages between Father and Mother were admitted as exhibits at the modification trial. Father's testimony indicated that between November 2017 and February 2018, he repeatedly sent text messages to Mother to arrange to pick up B.S.-S. for Father's court-ordered parenting time, but that Mother failed to respond. Father also learned that Mother had relocated to an unknown residence without telling him. He hired two private investigators to find out where Mother was residing with B.S.-S., but they were unable to locate her. Father then sent a letter to Mother's last known address with a notation reading "return service requested." The letter was returned to him with Mother's then-current address. After discovering her new address, he filed and served Mother with a Motion for Family Access Order. Mother continued to prevent Father from seeing the parties’ child until October 2018, when Father sought a temporary restraining order asking the court to place B.S.-S. in his physical custody and prevent Mother from having any unsupervised contact with the child until "further Order of the Court[.]" At this time, Father learned that Mother had been evicted from her apartment and that she had again relocated with the parties’ child without informing him. Upon filing for a temporary restraining order, Father was granted a supervised visit with B.S.-S. after nearly fourteen months of being denied parenting time by Mother.⁴

Father presented his proposed parenting plan as an exhibit at the modification trial. In his plan, he requested that he be granted sole legal and physical custody of B.S.-S. and proposed that Mother be allowed supervised visitation for two hours every week. He sought an order designating his address as the child's residential address for educational and mailing purposes. The GAL submitted a proposed parenting plan as well. In her plan, the GAL proposed that Father be awarded sole legal and physical custody of the parties’ child and that Mother be granted supervised visitation with B.S.-S. for four hours on alternating Sundays and every Wednesday for three hours. Both plans provided parenting time for Mother during holidays in alternating years. Father also submitted a Form 14, requesting that Mother be ordered to pay child support in the amount of $454.00 per month. Father asked that that court order him to continue to provide B.S.-S. with health insurance (as was the arrangement under the original judgment).

In March 2019, the circuit court entered its judgment of modification. In the judgment, the circuit court began by addressing Mother's drug use and her failure to comply with its order for drug testing. The court observed that Mother was fully apprised that her failure to submit herself for testing would result in an adverse inference that she would have...