J.L.H., In Interest of

Decision Date11 January 1983
Docket NumberNo. WD,WD
Citation647 S.W.2d 852
PartiesIn re In the Interest of J.L.H., a Minor. Felicitas MORENO, Appellant, v. JUVENILE OFFICER, Respondent. 33493.
CourtMissouri Court of Appeals

John P. Ryan, Jr., Kansas City, for appellant.

Alan B. Slayton, Independence, for respondents James L. Jones and Barbara Jones.

Evalyn R. Lee, Kansas City, for respondent Juvenile Officer of Jackson County, Mo.

Candace Zierdt, Legal Aid of Western Missouri, Kansas City, Guardian Ad Litem for J.L.H., respondent.

Before NUGENT, P.J., and TURNAGE and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

On July 17, 1981, J.L.H. then approximately 2 1/2 years old, lost both his parents when the skywalks in the Hyatt Regency Hotel, Kansas City, Missouri, collapsed. James and Barbara Jones have had custody of J.L.H. since July 20, 1981. In early December, 1981 a hearing was held in the Juvenile Court of Jackson County where the Jones', unrelated to J.L.H., sought custody as did the child's maternal grandmother Felicitas Moreno. The court's order was to continue custody with the Jones and the grandmother appealed to this court.

The child's father, Tom Henson, a caucasian was age 46 at the time of his death. He was apparently a Baptist. He had been married previously, that marriage had produced five children, all emancipated, four of whom lived in Kansas City at the time of his death.

The child's mother Romilia Henson was 28, a Catholic from Del Rio, Texas. She was a Mexican-American who came to Kansas City when she married Tom Henson. There was no evidence she had practiced her religion after her marriage.

Mrs. Moreno, the maternal grandmother, is 49, was born in Mexico and is still a Mexican citizen although living in Del Rio, Texas since 1962. She has a permanent passport. She is divorced, a Catholic, has little formal education and does not speak English. Living with her is a 15 year old adopted daughter, Olga. She owns her own home in a lower economic area of Del Rio (just across the United States-Mexican border). She works in a motel on a 40 hour a week basis for $2.95 an hour. She receives $60 a month from her former husband for Olga.

Mr. Jones is 35 and works for a construction company. His salary is $500 a week. Mrs. Jones, age 32 has been married to her husband for approximately 7 years. They have a 4 year old daughter. They live in a log cabin style home in a wooded area of Independence, Missouri. Both attended college. Mrs. Jones has a teaching certificate. She does not work. The Joneses are active members of the Reorganized Church of Latter Day Saints (RLDS).

J.L.H. is rather large for his age and is apparently in good health. He has lived his entire life in the Kansas City metropolitan area. With his mother he visited Mrs. Moreno three times in Del Rio. The day before his parents died J.L.H. and his mother had been to an RLDS church social and J.L.H. became enamored with and followed around a lady at that function. That lady is Mrs. Jones. The child speaks English, he does not speak Spanish. He was baptized a Catholic during a visit to Del Rio. Except for one, all his half brothers and sisters live in the Kansas City area.

The Joneses had initiated guardianship proceedings following the Henson's death, but when the juvenile officer filed a petition for detention (and to determine custody) under Chapter 211.011 RSMo 1978 1 et seq. the Joneses then sought custody as did the grandmother.

The social study from the Missouri Division of Family Services on the Joneses' home recommended that home for J.L.H.'s custody since he had "bonded" to the atmosphere there, i.e., he refers to Mrs. Jones as mother and gets along well with the Joneses' four year old daughter. The report also indicated the Joneses for custody since the child spoke only English; it also noted they are in good health. Mrs. Jones has a sister who teaches Spanish. Mrs. Jones is home every day except one when she teaches school. The Missouri authorities did not interview Mrs. Moreno when she was in Kansas City for the reason she did not speak English.

The Texas Department of Human Resources interviewed and recommended the grandmother. The evidence showed Mrs. Moreno works in the kitchen and laundry of a motel. Two days a week her hours are 7:00 a.m. to 3:00 p.m. and three days a week from 3:30 p.m. to 11:00 p.m. Her sister-in-law would be available for babysitting duty. She has worked at the motel for 8 months. Prior to that she had gone to Denver taking Olga out of school in Del Rio and enrolling her in a school in Denver while Mrs. Moreno took a factory job there. That employment ended 3 months later in March of 1981 when she returned to Del Rio. In 1980 she had no formal job but made blankets in her home. She has been divorced and single since 1972. She has $150 in savings. Her only contact with J.L.H. had been the three times his mother brought him to visit her. She had used an interpreter to talk to him on long distance calls. Del Rio, Texas is one half Mexican-American.

Appellant Mrs. Moreno's first point of error contends that the trial court erred in placing J.L.H. with the Joneses because the custody of the child was not committed to a person or persons of the same religious faith as the parents of the child and such placement order is in violation of Section 211.221.

The mother of J.L.H. was Catholic, his father a Baptist, J.L.H. was baptized as a Catholic, the Jones family are members of the Reorganized Church of Latter Day Saints. Appellant is Catholic. Section 211.221 states:

Religion considered in placing child. In placing a child in or committing a child to the custody of an individual or of a private agency or institution the court shall whenever practicable select either a person, or an agency or institution governed by persons of the same religious faith as that of the parents of such child, or in case of a difference in the religious faith of the parents, then of the religious faith of the child or if the religious faith of the child is not ascertainable, then of the faith of either of the parents. (Emphasis added.)

Appellant's other point declares the trial court's custody order was not in the best interest of J.L.H. primarily because J.L.H. was not placed with his grandmother, his only blood relative and was against the weight of the evidence. Both her points will be considered together.

The trial court determined from the evidence presented that the Joneses' home offered a more stable home environment, a better economic environment, a two-parent household as opposed to a single-parent home); a sibling close in age to J.L.H. with whom J.L.H. has developed a close "bonding" over the past year and one half; persons with whom J.L.H. has developed a close "bonding"; a mother who stays at home with J.L.H. and who provides him with supervision and training as opposed to a mother (appellant grandmother) who would admittedly have to "farm out" the child to relatives for a good portion of each day, and who does not speak the language in which J.L.H. responds to direction and guidance.

With regard to the ethnic background of the child ( 1/2 Mexican-American, 1/2 Caucasian) the court felt the placing of custody with the Joneses "balanced" things out. The court reasoned the same way on the religious issue--since the parents were of two different religions both of which were of the Christian faith, the placement in the Joneses' home was not considered out of order. The court also gave weight to the Joneses being younger in age than the grandmother. It felt the child has adjusted well to the Joneses, was used to the Kansas City area, and would have his half brothers and sisters close by. The order committed custody of J.L.H. to the Joneses with reasonable rights of visitation to the grandmother, her family and the child's half brothers and sisters. It noted the situation and environment of the Joneses and the grandmother was not equal and therefore it was not practicable nor in the child's best interest to place him with the grandmother.

The review of the judgment in a court tried case is governed by Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and should be set aside only if there is no substantial evidence to support it, was against the weight of the evidence, or erroneously declared or applied the law. The trial court is in a better position to judge the sincerity and character of the witnesses, E------ (S------) v. E------, 507 S.W.2d 681, 684 (Mo.App.1974), and there is a presumption the trial court studied the custody matter carefully, found in the best interest of the child and its judgment will not be disturbed unless the welfare of the child requires some other disposition, Fastnacht v. Fastnacht, 616 S.W.2d 98, 100 (Mo.App.1981); Wells v. Wells, 623 S.W.2d 19, 22 (Mo.App.1981).

Two of the half sisters had originally filed for guardianship of J.L.H. following the accident. That pursuit was dropped, and in fact, several of J.L.H.'s half brothers and sisters testified in favor of the granting of custody to the Joneses. At the custody hearing the grandmother was represented as were the Joneses. Also present was an attorney for the juvenile officer and an attorney from Legal Aid of Western Missouri appointed as guardian ad litem for J.L.H. The juvenile officer and guardian ad litem did not appeal the trial court's order. The Joneses have filed a motion to dismiss the Moreno appeal on jurisdictional grounds for its not being in compliance with § 211.261 RSMo 1978. This section identifies the individuals entitled to take appeals on behalf of the child under the juvenile code. 2 The Notice of Appeal filed by Mrs. Moreno does not state she is taking the appeal on the part of or on behalf of the child. Appeals in juvenile proceedings, as in other cases, are purely statutory in...

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