In re J.L.B.

• Decision Date: 10 March 2009
• Docket Number: No. SD 28762.,No. SD 28760.,No. SD 28761.,SD 28760.,SD 28761.,SD 28762.
• Citation: 280 S.W.3d 147
• Parties: In the Matter of J.L.B., M.K.B. and M.L.B. S.B. and J.B., Appellants, v. J.L., Respondent.
• Court: Missouri Court of Appeals

280 S.W.3d 147

In the Matter of J.L.B., M.K.B. and M.L.B. S.B. and J.B., Appellants, v. J.L., Respondent.

No. SD 28760.

No. SD 28761.

No. SD 28762.

Missouri Court of Appeals, Southern District, Division One.

March 10, 2009.

Motion for Rehearing or Transfer Denied April 2, 2009.

Application for Transfer Denied May 5, 2009.

Karen L. Hobbs, Chandler, AZ, for Appellants.

J. Christopher Allen, Allen & Rector, Lebanon, for Respondent.

ROBERT S. BARNEY, Judge.

Appellant S.B. ("Mother") and Appellant J.B. ("Father") (collectively "Appellants"), the natural parents of J.L.B., M.K.B., and M.L.B. (collectively "the children"), appeal the judgment of the probate court which had ceded jurisdiction pursuant to the provisions of the Uniform Child Custody Jurisdiction Act ("UCCJA"), section 452.450 et seq., to the State of Utah in an ongoing guardianship matter in which guardianship of the children¹ had been previously granted to their maternal aunt, Respondent J.L. ("Guardian"). Appellants assert four points relied on.

In late September of 2002, J.L.B. alleged she had been sexually abused by Father. The Children's Division of the Department of Social Services ("the Children's Division") became involved with the family and began an investigation. At the conclusion of the investigation, the Children's Division found probable cause to believe that sexual abuse by Father had occurred and substantiated J.L.B.'s allegations. As a result of these findings and the determination by the Juvenile Office of Laclede County, Missouri ("the juvenile office") of "Mother's unwillingness to protect" her daughters, on November 25 2002, the Juvenile Office filed a petition for Order of Protection for J.L.B. and M.K.B. with the Juvenile Division of the Circuit Court of Laclede County ("the juvenile court").² Some time in November of 2002, J.L.B. and M.K.B. were placed by the juvenile court in the care of their maternal grandmother, J.C. ("Grandmother"). Thereafter, on December 17, 2002, a Full Order of Protection was entered against Appellants by the juvenile court and J.L.B. and M.K.B. continued in Grandmother's care.

On May 21, 2003, the juvenile court adjudicated Father "to have had inappropriate sexual contact with ..." J.L.B. Thereafter, as best we discern, on June 9, 2003, a representative from the Children's Division filed her report recommending guardianship for J.L.B. and M.K.B. On June 18, 2003, the docket sheet of the juvenile court reflected that an order was entered by the juvenile court placing physical custody of the children with Grandmother with "supervision by DFS until the guardianship is complete." (Emphasis added.) The record also reveals that on this same date Guardian filed her "Petition for Appointment of Guardian of Minors" in the Probate Division of the Circuit Court of Laclede County ("the probate court") followed on August 4, 2003, by Grandmother's filing of her "Counter Petition for Appointment of Guardian of [Minors]."

The extensive hearing held in the probate court on the guardianship petitions on April 30, 2004, was attended by Grandmother and Guardian.³ The probate court subsequently entered its "Judgment of Minor Guardianship" on May 10, 2004, as to J.L.B. and M.K.B. In its Judgment, the probate court set out Appellants "are unwilling, unable, unfit and have been adjudged unfit to assume the duties of guardianship ...," and observed that Father had "been specifically adjudicated as having sexually abused the minor child J.L.B." The probate court found Guardian was "ready and able to assume the duties of guardianship over [J.L.B.] and [M.K.B.] and it is in the best interests of the minor children for [Guardian] to assume the role of guardianship immediately." Further, in that Guardian was a resident of the State of Utah, the probate court permitted her to relocate the children to her home in Utah, subject to visitation periods with Grandmother. The probate court then issued "Letters of Guardianship" and physical and legal custody of J.L.B. and M.K.B. was transferred to Guardian.

While the juvenile cases and the probate cases were pending in relation to J.L.B. and M.K.B., Mother gave birth to M.L.B. in October of 2003. A juvenile case was never opened in relation to M.L.B.'s care. On May 4, 2004, Guardian filed a "Petition for Appointment of Guardian" as to M.L.B. with the probate court. Grandmother also filed a petition for guardianship of M.L.B. A hearing was held on December 10, 2004, and December 14, 2004, relating to these petitions. Mother and Father were in attendance but were not represented by counsel.⁴ In its subsequent judgment, the probate court found Father "is unwilling, unable and unfit to assume the duties of guardianship" of M.L.B. and that Mother "while willing, is unable and unfit to assume the duties of the guardianship of [M.L.B.]." The probate court then granted guardianship of M.L.B. to Guardian and issued Letters of Guardianship. The record reveals that M.L.B. was then permitted to join his siblings in Utah.

Throughout 2005 and 2006 various motions were filed by Grandmother, Guardian, and Appellants⁵ relating to visitation and child support as well as a motion by Guardian to transfer jurisdiction of this matter to Utah where she resided.⁶ A motions hearing was held on March 7, 2006, and the probate court took "the Motion to Transfer Cases to the State of Utah under advisement until such time as the [probate] [c]ourt has had an opportunity to speak with the Judge in Utah." The following day the probate court made the following docket entry:

Court speaks with [Utah] Judge Rodney Page regarding jurisdiction. Judge Page advises Court that there are adoption proceedings pending in his Court and that the cases will proceed.

Judge Rodney Page will keep this Court informed and will address jurisdictional issues with the Court as they arrive. Motion to transfer case to State of Utah is overruled at this time.

Thereafter, additional motions were filed regarding, among other things, attorney fees for the guardian ad litem, visitation issues, and enforcement of the UCCJA. On March 2, 2007, the probate court made the following docket entry:

The Court is contacted, on 3/[1], by the Hon. Rodney Page Judge, of the 2nd District Court, Davis County, Utah as a follow up to the discussion previously had on 3/8/06 regarding the adoption proceedings of the [children] pending before him in the State of Utah, and jurisdictional issues in this case.

After discussing this case with Judge Page and reviewing the file, this Court finds the more appropriate forum for jurisdiction is in the State of Utah. Therefore, this Court cedes jurisdiction under the UCCJA to the State of Utah as to the minor child[ren].

In late March of 2007, Appellants filed the following motions: a "Motion for Rehearing and Retention of Jurisdiction;" a "Motion to Invite Comments of Missouri Doctors;" motions for visitation as to each child; a "Motion for Change of Guardian to a Missouri Resident;" and a "Motion to Retain Jurisdiction in Missouri." The probate court held a hearing on these motions on April 13, 2007, and, following argument by counsel, found:

Missouri does have jurisdiction, the state of Utah has jurisdiction, and when you have those competing jurisdictions, there's a procedure that's laid out in the UCCJA to rectify that issue. And that's the process that Judge Page and I engaged in twice. ...

I have not heard anything that would alter my decision that was made in conference with Judge Page ceding jurisdiction to the state of Utah for them to proceed on the adoption proceedings.

If that adoption proceeding should fail or otherwise be disposed of, this Court may assert jurisdiction at a later time. But right now, there's — and that would be — the next step, I would say, would be for [Appellants] to try to file a motion to terminate the guardianship and that it's no longer needed. But right now, the issue that they're going to have to litigate is in the state of Utah. And it's my understanding that their interests were represented at the jurisdictional hearing in the state of Utah.

Accordingly, the probate court overruled Appellants' motion regarding jurisdiction and declined to "entertain other motions for lack of jurisdiction." This appeal followed.⁷

This Court affirms a probate court's judgment in guardianship proceedings unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In re Benson, 124 S.W.3d 79, 83 (Mo.App.2004). As a result, we must affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. We must consider the evidence and all reasonable inferences in a light most favorable to the probate court's judgment, disregarding any evidence or inferences to the contrary. Id. "Although we give deference to the [probate] court's factual determinations, our review of any error in applying the law is de novo." Pulley v. Sandgren, 197 S.W.3d 162, 165 (Mo.App. 2006).

In their first point relied on, Appellants assert the probate court erred in establishing guardianships over the children

because the probate court was without subject matter jurisdiction since the exclusive jurisdiction of the juvenile court over proceedings involving children alleged to be in need of care excludes courts of general jurisdiction from exercising jurisdiction over children who come within the provisions of the juvenile code, in that J.L.B. and M.K.B. came within the provisions of the juvenile code by the findings of the juvenile court, and M.L.B. had been brought within the provisions of the juvenile code and under the jurisdiction of the juvenile court by his situation; lacking subject matter jurisdiction the orders of the probate court are null and void.[⁸]

"Subject matter jurisdiction, in contrast to personal jurisdiction, is not...