A.D. v. N.R. (In re Estate of L.G.T.)

• Decision Date: 05 May 2014
• Docket Number: No. SD 32692.,SD 32692.
• Citation: 442 S.W.3d 96
• Parties: ESTATE OF L.G.T., A Minor, A.D., Respondent–Appellant, v. N.R., Petitioner–Respondent.
• Court: Missouri Court of Appeals

442 S.W.3d 96

ESTATE OF L.G.T., A MinorA.D., Respondent–Appellant

v.N.R., Petitioner–Respondent.

No. SD 32692.

Missouri Court of Appeals, Southern District, Division Two.

May 5, 2014.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 28, 2014.

Application for Transfer Denied Aug. 19, 2014.

Thad M. Brady, Jackson, MO, Attorney for Appellant.

Mark L. Richardson, Poplar Bluff, MO, Attorney for Respondent.

Opinion

DON E. BURRELL, J.

This is an appeal of a probate judgment granting letters of guardianship and conservatorship (“guardianship”¹ ) to N.R. (“Grandmother”), the paternal grandmother of the minor child at issue, L.G.T. (“Child”), over the objection of A.D., Child's natural mother (“Mother”).

Mother's first point contends the trial court erred as a matter of law “by continuing the August 20, 2012 guardianship hearing and ordering the collection of additional evidence ... in that the trial court acted on its own initiative, and not at the request of any party[.]” Mother asserts “that such action had the effect of removing the burden of proof from [Grandmother] and shifting the burden onto the trial court[.]” Her second point contends:

The trial court erred by finding [Mother] unfit, because such finding is not supported by the evidence and is against the weight of the evidence, in that the trial court failed to consider credible, uncontradicted evidence, considered inadmissible evidence and evidence that was not relevant to [Mother]'s fitness, and that the evidence and circumstances viewed as a whole demonstrated [that Mother] was fit to be guardian over [Child].

Because Mother's first point was not preserved for appellate review, and her second lacks merit, we affirm the judgment of the trial court.

Applicable Principles of Review and Governing Law

“The trial court's judgment in guardianship proceedings is to be affirmed unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.” In re M.B.R, 404 S.W.3d 389, 392 (Mo.App.S.D.2013). We review questions of law de novo, but in reviewing questions of fact, we defer to the fact-finder. White v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010). As a result, “[w]e view the evidence and any reasonable inferences therefrom in the light most favorable to the court's decision and disregard all contrary evidence and inferences.” In re C.C.S., 393 S.W.3d 105, 108 (Mo.App.W.D.2013).

When evidence is contested by disputing a fact in any manner, this Court defers to the trial court's determination of credibility. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002) ; Rule 84.13(d)(3).^{[ 2 ]} A trial court is free to disbelieve any, all, or none of that evidence. York [v. Dir. of Revenue ], 186 S.W.3d [267,] 272 [ (Mo. banc 2006) ]. Appellate courts defer to the trial court on factual issues “because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 652 (Mo. banc 2009) (internal citations omitted). The appellate court's role is not to re-evaluate testimony through its own perspective. Id. at 653.

White, 321 S.W.3d at 308–09. “[A] party can contest the evidence in many ways, such as by putting forth contrary evidence, cross-examining a witness, challenging the credibility of a witness, pointing out inconsistencies in evidence, or arguing the meaning of the evidence.” Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012).

“[W]ith respect to evidentiary rulings, the trial court ‘enjoys considerable discretion in the admission or exclusion of evidence, and, absent clear abuse of discretion, its action will not be grounds for reversal.’ ” Moore v. Ford Motor Co., 332 S.W.3d 749, 756 (Mo. banc 2011) (quoting State v. Mayes, 63 S.W.3d 615, 629 (Mo. banc 2001) ).

Three statutes govern appointing a guardian for a minor child. Section 475.025 RSMo 1994 states that a father and mother are the natural guardians of a minor child. Section 475.030 authorizes the granting of guardianship letters in three instances: (1) when a minor's parents are deceased; (2) “[w]here the parents or the sole surviving parent of a minor are unwilling, unable, or adjudged unfit to assume the duties of guardianship,” or (3) where the minor's parents' parental rights have been terminated. Section 475.045 gives the parents first priority in appointment as guardian or conservator of a minor, except as otherwise provided in section 475.030.

Reading these statutes together, “letters of guardianship for a minor should not issue unless there is no parent available, willing or able to fulfill the parental role in caring for a child and providing for that child's needs as natural guardian.” Estate of Casteel v. Guardian ad Litem, 17 S.W.3d 585, 588 (Mo.App.2000) (citing Reece v. Reece, 890 S.W.2d 706, 710 (Mo.App.1995) ).

Moreover, these statutes create a rebuttable presumption that a natural parent is the appropriate custodian for a minor child. Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. banc 1998). This presumption may be overcome by evidence that a parent is unwilling, unable, or unfit to take charge of the child. Id.

Flynn v. Flynn, 34 S.W.3d 209, 211 (Mo.App.E.D.2000). “Consequently, if there is sufficient evidence here that [Mother] was unfit, unwilling, or unable to take charge of [Child], then any presumption in favor of [her] is gone and the trial court properly appointed [Grandmother] as guardian.” In re T.A.P., 953 S.W.2d 638, 642 (Mo.App.S.D.1997).

Facts and Procedural Background ³

The Initial Hearing

On August 20, 2012, the trial court heard the following evidence in a hearing that addressed both Grandmother's petition for guardianship and Mother's related petition for a child order of protection against Grandmother (“the first hearing”).

Child was born in Arizona in 2007. Child's biological father (“Father”) died the following year. Mother testified that when Child was born, Child required special care in the hospital to feed her and give her oxygen because she appeared “lifeless.” After her release from the hospital, Child was placed in a program Mother referred to as “AZ–EIP[.]” Under this program, “a nurse c [a]me to the house to monitor [Child's] development every six to eight weeks.”

Grandmother testified that “ever since [Child] was born [there had] definitely been problems” with her development. Grandmother was concerned about Child's physical condition because “she just was very weak and didn't move like other children[.]” Grandmother spoke to Mother about her concerns, but Mother assured Grandmother that Child would “be fine.”⁴ Grandmother did not think that Mother had sought treatment or a diagnosis for Child in Arizona, and Grandmother was concerned about what she considered to be Mother's denial of Child's problems.

After Child's father died, Child went to visit Grandmother several times. The parties then decided that Child would visit Grandmother for the summer of 2011 while Mother “relocated to Phoenix” from Kingman, Arizona. Grandmother used this extended visit “as an opportunity to seek some professional help” for Child. Mother agreed to Grandmother taking Child to medical appointments, and she cooperated with “the health care decisions” regarding Child.

Child was scheduled to have a dental appointment in Arizona that summer, but the appointment conflicted with Child being placed in Grandmother's care, so Grandmother took Child to a pediatric dentist, who diagnosed Child with having “eight or nine” cavities. Child also “had broken a tooth in the front [.]” Grandmother had the necessary dental work performed in Missouri, and Grandmother paid for it. Grandmother had previously talked with Mother about the need to brush Child's teeth because Grandmother had taken Child to the dentist on an earlier visit, and Child also had eight or nine different cavities at that time. After Child received the fillings while staying with Grandmother in June 2011, Child thereafter had a “six-month check-up ... and she had no cavities[.]”

Grandmother also took Child for a physical evaluation, and she followed that with a trip to have Child examined by “a pediatric neurologist in St. Louis.” According to Mother, Child's insurance “[t]hrough the state plan” had “lapsed” because Mother was “making too much money[.]” Grandmother offered to fly Mother to Missouri to be present for one of the diagnostic procedures that involved sedation of Child, but Mother declined, saying either that she was busy with work or that her teenage son (“Brother”) “was in the middle of another crisis.”

Dr. Brandy Dallas testified that she had provided Child with physical therapy twice a week at the Kenny Rogers Children's Center (“KRCC”) since July 2011, when Grandmother sought her services. Dr. Dallas made a referral for neurological testing, and it was her understanding “that [the] neurologist gave [Child] the diagnosis of centronuclear myopathy

after a series of blood tests and muscle biopsies [.]” Child also received speech therapy twice a week at KRCC, and Child participated in a home program that continued working on the skills addressed at KRCC.

A “Dynamic Realignment Orthosis

” (“DRO”) “was custom made for [Child,]” and Child wore it every day to help support her muscles and her breathing. The DRO cost “about twelve hundred dollars.” Before obtaining the DRO, two other garments were tried, each of which cost “in excess of a thousand dollars [.]” Grandmother paid for all of the garments “out of her pocket[.]” Dr. Dallas said that Child would require a new DRO when she physically outgrew the current one.

Child's therapy program was “[h]ighly specialized[,]” and it was unlike a typical therapy program someone would undergo for something like a broken leg

. Dr. Dallas had “definitely” seen progress in Child's treatment to the point...