R.K.W., In Interest of, WD

• Citation: 689 S.W.2d 647
• Decision Date: 29 January 1985
• Docket Number: No. WD,WD
• Parties: In the Interest of R.K.W. 35885.
• Court: Court of Appeal of Missouri (US)

Page 647

689 S.W.2d 647

In the Interest of R.K.W.

No. WD 35885.

Missouri Court of Appeals,

Western District.

Jan. 29, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

April 2, 1985.

Application to Transfer Denied

May 29, 1985.

Leonard K. Breon, Breon & Leffler, Warrensburg, for appellant.

Joseph P. Dandurand, Rahm, Rahm & Dandurand, P.C., Warrensburg, for respondent.

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

LOWENSTEIN, Presiding Judge.

Following amendment in the notice, the parties on appeal of this child custody case are as follows: the minor child (R.K.W.) through Francis Marr (who had been legal custodian) is appellant, while respondents, the Pulliams, are the couple to whom the child was subsequently transferred and whom he has been with since March 23, 1984. ¹ Rights of the natural parents were terminated in the midst of these custody shifts.

A brief overview is here in order. The child is now four (born April 13, 1981). Since age 4 months he had been with Mrs. Marr. In January 1984, transfer of custody was made from Marr to the Division of Family Services (DFS). In March 1984, transfer of custody was to the Pulliams. Prior to this appeal the Pulliams have never been in court, and for that matter, Marr was not in court until after the March transfer to the Pulliams.

Although the best interest of the child is the paramount question, unfortunately, as between the Marrs and the Pulliams, neither of which has been at fault, one family must end up broken hearted over this matter.

The following facts are taken from the legal file and the transcript of the hearing of March 28th which was requested by the Marrs to reconsider the March 14th change of custody order. In this opinion "JO" refers to the county juvenile officer and "GAL" refers to R.K.W.'s guardian ad litem.

April 1981--Child born.

August, 1981--Mother takes child to home of Francis Marr and her parents.

January 26, 1982--JO files petition to get custody since the mother left child at the house of Marr and her parents.

February 8, 1982--Francis Marr divorced.

March 2, 1982--Court order that in the best interest of child to be with Francis, under supervision of JO and DFS.

March 12, 1982--Terry Marr and Francis marry.

September 13, 1983--Court order continuing custody in accordance with previous order.

October 26, 1983--JO petition to terminate parental rights (child now age 2). Petition states custody with Francis Marr. Asked court "that legal custody of said child be transferred to Terry and Francis Marr for purpose of adoption."

January 6, 1984--DFS letter to court saying natural mother wants Marrs to adopt--home study to be made on Marrs.

January 10, 1984--Order stating Francis has had child since age 4 months. Natural parents terminated. Court transferred child to DFS to place with "foster family" for adoption. Court wants two more home studies submitted. (Hearing attended only by JO and GAL)--deputy JO told judge "prospective adoptive parents and child in lobby ... if the judge should need them."

January 24, 1984--DFS recommends Marrs for adoption, with some reservations, and notes the child regards Marrs as parents. Two other studies submitted for consideration.

January 27, 1984--Report on Marrs to the court. DFS had noted Francis had been reported on the hotline for neglect while babysitting. Reports were investigated and dismissed. DFS also stated Terry played in band on some nights.

March 14, 1984--Court order transferring child from Marr's foster placement to Pulliam for future adoption. No notice to Marr--she was not present. No hearing had been conducted.

March 16, 1984--DFS tells Marr's court has removed them.

March 23, 1984--Child taken to Pulliams.

March 27, 1984--Marrs file motion to restore custody to them and set aside order of March 14, 1984.

March 28, 1984--After hearing at which GAL present court reaffirms 3/14 order as in best interest of child.

April 23, 1984--This appeal is filed.

Letters and motions in the court file clearly indicate a longstanding interest by the Marrs to adopt. By the orders of January 10th and March 14th the Pulliams now are in custody prepatory to adoption.

The procedural history of this case is complicated by the court's apparent confusion as to Francis Marr's true status. The March 14 order refers to the child's "foster placement" when in fact the Marrs had never been licensed as a foster family.

The March 28th hearing basically allowed the Marrs to present evidence that it would be in the child's best interest to return his custody to them, and then allow them to proceed toward adoption. The natural mother, the grandfather and two other disinterested persons testified in favor of the Marrs. Francis Marr acknowledged she had received no public assistance for the child. She said DFS had never complained about her keeping the boy, and had asked her and her husband to become foster parents. She had told DFS they wanted to adopt and DFS had been supportive. She was not told of the March 14 hearing and had been led to believe by DFS their application for adoption had been sent in and was before the judge. On March 16 she was told the child was to be removed, and she later learned no petition for their adoption had ever been filed. Her husband Terry testified that he had been in contempt for non-payment of child support to his children, but that he had paid the $2700 due and now had regular employment as well as working part-time at night. At the time of the hearing they were living with his mother.

The DFS worker, Murray, had worked on this case for eight months. She said the court had requested three home studies which she filed in the latter part of January. She said there was a strong attachment between the child and the Marrs and the child considered them as "psychological parents and any change would be a real disruption for him." She recommended that the Marrs be favorably considered as an "adoptive resource" for the child. The worker said it was now difficult for her to make a recommendation since the child was doing well in the new home. He had been in the new home since March 23rd. She had not seen him in the new home. She felt he would do fine in either place.

The court on March 28 told the Marrs that they had not been replaced because they had done something wrong but that the new home would be better. The court told the Marrs the two factors that had worked against them were the fact the natural mother knew their whereabouts and Terry's delinquent support of his children.

Where custody or a change arises within the context of dissolution, the criteria for determination are expressed in § 452.375 (Supp.1982). In § 452.380 temporary custody may be awarded after a hearing. Custody proceedings are to have priority, § 452.395. A court may order the deputy JO or welfare office to exercise continuing jurisdiction over the case, § 452.405. To effectuate a change the judge must act upon evidence adduced, and must conduct a hearing and act upon presentation of facts from which it may be determined whether a change would be in the best interests of the child. Riley v. Riley, 643 S.W.2d 298, 300 (Mo.App.1982). See also Section 452.410. As pointed out in Leimer v. Leimer, 670 S.W.2d 571, 573 (Mo.App.1984), a change of custody between the parents was set aside as not being supported by substantial evidence. Rule 73.01. The Leimer court noted the record was "nearly devoid of evidence that would bear on determining the children's best interests." Id. at 573 (footnote omitted). As a further caution the eastern district said it was unwise to transfer custody frequently and even at all unless a preponderance of the evidence so required. Id. at 574.

Also under the Uniform Custody Jurisdiction Act, § 452.440 et seq., there are

provisions for persons having physical custody or custody rights to be given notice and to be made a party. Section 452.485.

If a change of custody following a marriage requires a hearing and reception of evidence, so too should there be such a requirement in a case like this one where custody under court order has been granted to a person. The best interest of the child can only be determined after receiving evidence. Here there was no hearing, no evidence, no record to support a change from Marr to DFS and ultimately to the Pulliams. Fundamental fairness would demand, if nothing else, notice and hearing to one under lawful custody with intent to adopt the child in their home. Also analogous to this situation is the Comment to Rule 120.01 dealing with appeals in juvenile detention matters, which says: "This rule is not intended to suggest that without a hearing the court may modify a judgment so as to impose additional restraints upon the juvenile or upon the custodian, or to deprive the custodian of custody, or to commit the juvenile to the division of youth services."

The Marrs did not have a "Foster Home" as described in § 210.481 et seq. No license was applied for by the Marrs or issued by DFS to operate a foster home under § 210.486. None of the previous orders here properly denominated the character of the placement as being in a foster home run by the Marrs. The foster care law requires a review of each placement every six months, §§ 210.710 and .730; a "dispositional hearing" eighteen months after initial placement, § 210.720. The time table in this case appears as if compliance with this law was being attempted. However, sections 210.760(3) and (4) require a minimum of five days notice (in writing and containing the reasons) to the foster parents before removing a child.

The January 10th order seemed to contemplate foster care placement by DFS after the award, but that was never done. Foster parents have physical custody but DFS has legal custody. Matter of Trapp, 593 S.W.2d 193, 204-05 (Mo. banc 1980). At no time before or after January 10th was the custody of the Marrs under or in compliance with the foster care...