R.W. v. H.P.A. (In re E.R.V.A.)

Decision Date30 March 2021
Docket NumberWD 84222
Parties IN RE: E.R.V.A., Minor; R.W. & K.W., Respondents, v. H.P.A. & A.M.A., Appellants.
CourtMissouri Court of Appeals

Julia R. Filley, for Minor.

Kimberly S. Brown, for Respondents.

Frank R. Flaspohler, Fayette, for Appellants.

Valerie Foland, Co-counsel for Appellants.

Division Two: W. Douglas Thomson, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

EDWARD R. ARDINI, JR., JUDGE

A.M.A. ("Mother") and H.P.A. ("Father") appeal from the judgment entered by the Circuit Court of Dekalb County finding Mother and Father unwilling, unable and unfit to assume their parental duties and ordering that letters of guardianship issue for their minor child E.R.V.A. We affirm.

Factual and Procedural Background

On January 3, 2017, E.R.V.A.’s paternal aunt and uncle ("Petitioners") filed a petition seeking a guardianship and conservatorship of E.R.V.A.1 Father, who was in prison, executed a waiver of notice or summons and consent to entry of guardianship and conservatorship. Mother, whose whereabouts were unknown, was served by publication. On June 8, 2017, the probate court conducted a hearing on the petition and, on June 13, 2017, judgment was entered appointing Petitioners as co-guardians and co-conservators for E.R.V.A.

Nearly a year later, Mother and Father (collectively, "Parents") filed a motion to set aside the judgment, arguing the probate court lacked personal jurisdiction over Mother due to insufficiencies in the affidavit submitted in support of the request for service by publication. The probate court granted the motion.2 Parents thereafter filed a motion to dismiss, arguing that the guardianship statute was unconstitutional. The motion to dismiss was denied by docket entry and the probate court proceeded to conduct a trial, held over four days, during which the following evidence was presented:

E.R.V.A. was born on May 21, 2015, and lived with Parents in a home in Gallatin, Missouri, that had been purchased by Father's parents. In 2016, the home fell into a state of disrepair and was described as "marginally habitable." Parents frequently requested Petitioners and Father's parents to babysit E.R.V.A. so that they could have "date nights;" however, in many instances, Parents would remain absent for multiple days without communication. On those occasions, Parents would not provide sufficient diapers, clothing, or food for E.R.V.A.

In September of 2016, a search warrant was executed at Parents’ home that resulted in Father being charged with and later convicted of possession of a controlled substance.3 Father served one year in prison before being released on parole.

Around the period of Father's incarceration, Mother left E.R.V.A. and her sister in the care of Father's parents, and Mother formally delegated some of her parental rights by way of a power of attorney dated November 14, 2016, to her father-in-law, who, along with his wife, shared a duplex style residence with Petitioners. At some point, Petitioners assumed the responsibility of caring for E.R.V.A. and her sister.

Parents displayed poor parenting skills when E.R.V.A. was in their custody. E.R.V.A. received no prenatal care, was described as "small and thin" and, at the time of trial, continued to display characteristics consistent with severe malnourishment. She had not been properly vaccinated, had suffered from a severe diaper rash that had remained untreated for days, and her playpen at the Gallatin residence was urine soaked. In addition, E.R.V.A. was found to be developmentally delayed. Moreover, although Mother would be the primary caregiver while Father was at work should E.R.V.A. be returned to Parents’ custody, Mother had expressed to Petitioners and her in-laws that she did not want E.R.V.A. or her younger sister "permanently" or "anymore."

Parents’ relationship became strained during Father's incarceration, however, the two reunited upon his release and moved to the Lake of the Ozarks. Parents started a successful construction/home improvement business and purchased multiple properties in that area, including a primary residence. Parents set up a bedroom and play room in the home for E.R.V.A. and her sister, but not all of the toys and clothing were age appropriate.

Father admitted to a substantial criminal history involving drugs, thefts, and assaultive behavior.4 Father suffers from an addiction to controlled substances, including methamphetamine, dating back to his teenage years. After the birth of E.R.V.A.’s sister, Father consumed pain medication that had been prescribed to Mother. In addition, Father suffers from mental health issues and has been diagnosed with ADHD for which he has been prescribed medication. Other than a four-hour educational drug course, he had not received any counseling or treatment for substance abuse since his release from incarceration.

Mother has similarly abused controlled substances but has not received counseling or treatment for this problem. She used methamphetamine during Father's incarceration, left illegal drugs in the children's diaper bag and enabled Father's addiction by providing him with pills prescribed to her. On January 6, 2020, while this guardianship action was pending, Mother entered an Alford5 plea to felony possession of a controlled substance and received probation. Mother claimed that she did not remember the events that led to her arrest, but eventually acknowledged that drugs and paraphernalia were found in her vagina by law enforcement after she, Father, and another man had been stopped for a traffic violation. In addition, Mother does not have a driver's license but continues to unlawfully operate automobiles. Mother has struggled with depression and received inpatient psychiatric care after attempting suicide and remained under the treatment of a psychiatrist at the time of the trial.

During the pendency of this guardianship action, Parents attended therapeutic visits with E.R.V.A. and her sister. Parents occasionally brought gifts, but had only provided $127.00 in monetary support to Petitioners to assist in their care of E.R.V.A. and her sister.

The probate court granted letters of guardianship6 to Petitioners:

[B]y a preponderance of the evidence, the court has determined Petitioners overcame the presumption that Parents should serve as natural guardians by showing: Mother is unwilling (no support; does not want to be a primary caregiver), unable (poor parenting skills; substance abuse; mental health), and unfit (substance abuse; disregard for the law; poor parenting skills); Father is unwilling (no support), unable (poor parenting skills; substance abuse; intention to make Mother caregiver in his absence), and unfit (substance abuse; disregard for the law; poor parenting skills).

Parents appeal.

Discussion

Parents raise two points on appeal, challenging the constitutionality of section 475.030, RSMo,7 and arguing the probate court applied the wrong standard of proof. In Point I, Parents argue that section 475.030.4(2), RSMo, violates principles of due process guaranteed by the federal and state constitutions in that "it allows a court to indefinitely sever the parent-child relationship without necessary safeguards." In Point II, Parents claim that the probate court erred by failing to hold Petitioners to a "clear and convincing standard of proof," asserting that a "minor guardianship affects the fundamental liberties protected by the federal and state constitutions and such interference must be supported by a higher standard of proof."

Jurisdiction

Generally, the Missouri Supreme Court has exclusive jurisdiction over a challenge to the constitutionality of a statute. Mo. Const. art. V, § 3 ; Lewis v. Dep't of Soc. Servs. , 61 S.W.3d 248, 253 (Mo. App. W.D. 2001). However, the Supreme Court's "exclusive appellate jurisdiction is not invoked simply because a case involves a constitutional issue." McNeal v. McNeal-Sydnor , 472 S.W.3d 194, 195 (Mo. banc 2015). Instead, such exclusive jurisdiction is only invoked when "a party asserts that a state statute directly violates the constitution either facially or as applied[;]" and when the "constitutional issue [is] real and substantial, not merely colorable." Id. (citing Alumax Foils, Inc. v. City of St. Louis , 939 S.W.2d 907, 912 (Mo. banc 1997) ; Mayes v. St. Luke's Hosp. of Kansas City , 430 S.W.3d 260, 270 (Mo. banc 2014) ).

" ‘In determining whether a constitutional claim is real and substantial or merely colorable, [the reviewing c]ourt makes a preliminary inquiry as to whether [the claim] presents a contested matter of right that involves fair doubt and reasonable room for disagreement.’ "

Matter of Brown v. State , 519 S.W.3d 848, 853 (Mo. App. W.D. 2017) (quoting Mo. Hwy. and Transp. Comm'n v. Merritt , 204 S.W.3d 278, 285 (Mo. App. E.D. 2006) (alterations in Brown )). " ‘If this initial inquiry shows that the claim is so legally or factually insubstantial as to be plainly without merit, the claim may be deemed merely colorable.’ " Id. (quoting Merritt , 204 S.W.3d at 285 ). In addition, "[a] claim challenging the validity of a statute is ‘merely colorable’ if it has already ‘been addressed by either the United States Supreme Court or the Missouri Supreme Court[.] " Derby v. State , 557 S.W.3d 355, 363 (Mo. App. W.D. 2018) (quoting Matter of J.D.B. , 541 S.W.3d 662, 666 (Mo. App. E.D. 2017) ). Parents’ claims are merely colorable; therefore, this Court has jurisdiction.8

Standard of Review

"The circuit court's interpretation of the [c]onstitution is reviewed de novo. " Mo. Veterinary Med. Bd. v. Gray , 397 S.W.3d 479, 481 (Mo. App. W.D. 2013) (citing City of Arnold v. Tourkakis , 249 S.W.3d 202, 204 (Mo. banc 2008) ). "The constitutional validity and construction of state statutes are also reviewed de novo. " Id. (citing Sch. Dist. of...

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