S.M., In re

Decision Date07 January 1997
Docket NumberNo. WD,WD
Citation938 S.W.2d 910
PartiesIn re S.M. and A.M., Respondents, T.H. and S.P., Respondents, v. A.S., Appellant. 50666.
CourtMissouri Court of Appeals

Michael S. Ketchmark, Larson & Larson, Kansas City, for appellant.

Kim S. Summers, Dysart Taylor Penner Lay & Lewandowski, Kansas City, for Guardian Ad Litem.

James A. Durbin, Swanson Midgley Gangwere, Kitchin & McLarney, Kansas City, for respondents T.H. and S.P.

Before EDWIN H. SMITH, P.J., BRECKENRIDGE and ELLIS, JJ.

BRECKENRIDGE, Judge.

Joela and Frank are orphaned refugees from the African nation of Burundi. 1 They immigrated to the United States in 1991 with an aunt and a cousin, and lived with those relatives as a family until the aunt's death. After the aunt's death, two competing petitions were filed requesting appointment as guardians and conservators of the children. One was filed by the children's Rwandan uncle, Abel. The other was filed by an unrelated American couple, Tom and Sally, who had befriended the family. The trial court sustained the petition of the American couple and appointed them co-guardians and co-conservators of the children. Abel appeals.

The first issue raised by Abel is whether Missouri has jurisdiction of this proceeding. Abel claims that Missouri was not the children's "home state" under the Uniform Child Custody Jurisdiction Act, § 452.440-452.550, RSMo 1994, 2 because the children stayed in Kansas with Tom and Sally during the times their aunt was out of the country and in the hospital. As the children's time in Kansas was only a temporary absence from the state, Missouri was the home state of the children and the court had jurisdiction.

On the merits, the primary issue is whether the trial court misapplied the law or entered a judgment against the weight of the evidence when it granted guardianship and conservatorship of Joela and Frank to the American couple who are also guardians of the children's cousin, rather than to the children's Rwandan uncle and his wife, who currently live as refugees in Stockholm, Sweden. The children's closest interpersonal bond was with their cousin, rather than their uncle, and, contrary to his claim, the uncle did not prove he was entitled to be appointed guardian because he was already the children's guardian under Burundi law. Therefore, the court did not misapply the law or rule against the weight of the evidence when it appointed guardians who would provide a home where the children could continue to live with their cousin. Accordingly, the judgment of the trial court is affirmed.

On appeal, this court is compelled to consider the evidence and any reasonable inferences therefrom in the light most favorable to the trial court's judgment, and to disregard any evidence to the contrary. Matter of Mitchell, 914 S.W.2d 844, 847 (Mo.App.1996).

This case involves the guardianship of two siblings, Frank, a male minor, and Joela, a female minor. The record pertaining to the children's ages is contradictory, but it appears that Frank was ten to eleven years old at the time of trial, and in the sixth grade. Joela was seven to nine years old at that time, and in the third grade.

An examination of Frank and Joela's family history is essential to meaningful review of the trial court's judgment. The children's mother was Rwandan. Mother had a number of siblings and half-siblings because her father had several wives, as was common in the Rwandan culture. The siblings relevant to this guardianship proceeding are Abel and Emmanuel, her full brothers, and Rose, her half-sister. Mother, Abel, Emmanuel and Rose were members of the Tutsi tribe. When political unrest broke out in Rwanda, the wives and their respective children separated. Some family members stayed in Rwanda, while others went to Burundi, Kenya and Uganda.

Mother took refuge in Burundi, where she married and the children were born. Little is known of the children's father, other than he was part Hutu, another African tribe, and that he was deceased at the time of trial. When the children were born and for some time thereafter, Mother and her brother, Abel, lived in the same household. When the civil war in Rwanda spread into Burundi, it became unsafe for members of the Tutsi tribe because they were in the oppressed minority. Abel was advised that he might be able to immigrate to Canada, so he left Burundi in 1989 and went to Nairobi, Kenya to pursue immigration opportunities. While in Kenya, he stayed for two weeks with his half-sister, Rose, and then found a place nearby to live.

The children's mother died in 1990, and the children were brought to Rose's home in Kenya by their uncle, Emmanuel. There the children lived with Rose and her daughter, Lucy. While Abel was awaiting authorization to immigrate to Canada, he was arrested, along with other Rwandan refugees, and given three weeks to leave Kenya. Abel found refuge in Sweden, so he left Kenya to go to Sweden on January 27, 1991. He took with him two of Rose's children, Christopher and Amos, who had been living in Uganda.

Before Abel left, Rose was diagnosed as HIV positive. She decided to immigrate to the United States where treatment was available. Rose made contact with a man who had an immigration dossier which would allow a family to go to the United States. He and his children were looking for five others who would fit the profile of the family. Rose, Frank, Joela, Lucy and Claude, a younger brother of Abel and Emmanuel, assumed the identities of the family in the dossier to gain entry into the United States. After arriving in this country, Rose, Frank, Joela, Lucy and Claude, took up residence in a house in midtown Kansas City, Missouri. 3

While Rose and the children lived in Kansas City, Abel lived in Stockholm, Sweden with Christopher and Amos. After about three years, he married Judy, a woman he had known in Burundi. Judy is an Australian citizen, but she was born and raised in Africa where her parents were missionaries. Because of her African experience, Judy has a good understanding of Rwandan culture. At the time of their marriage, Abel and Judy had a five-month-old son, Michael. Abel, Judy, Michael, and Rose's sons, Christopher and Amos, have lived together in Stockholm since the marriage.

There was very limited contact between Frank and Joela and Abel during most of the time the children lived with Rose in the United States and Abel lived in Sweden. When Abel called or wrote, his communications were normally with Rose. He seldom communicated with Frank and Joela other than to ask Rose to tell the children "hello."

While living in Kansas City, Rose, Lucy, Frank, Joela and Claude had difficulty meeting their basic needs such as food and were forced to live in a shelter at one point. At another time, during one of Rose's hospitalizations, the children were placed in foster care. Although Rose had contact with Abel throughout this period, Abel did not provide assistance.

Rose and the children did receive aid from a married couple residing in Kansas City, Kansas. The husband, Tom, was a Peace Corps volunteer in Africa from 1985 to 1987. After returning to the United States, he attended law school and began practicing law in the Kansas City area in 1991. His wife, Sally, was working on a master's degree in psychology and was a research associate at the University of Kansas Medical Center, studying persons with cancer and how they and their relatives coped.

In the fall of 1991, Lucy telephoned Tom at his law office and told him that she and her family had moved to Kansas City from Africa as refugees, and that they were interested in meeting him because of his background as a Peace Corps volunteer in Zaire. Lucy arranged a meeting of Tom and Sally with Rose. At this first visit, Tom and Sally learned that Rose had contracted the HIV virus. Almost immediately, Tom and Sally became friends with Rose and the members of Rose's household, and began having regular contact with the children. Tom visited the family once every couple of weeks, and Sally saw them at least once a week. Sally provided transportation for Rose, and Tom and Sally frequently brought food to the family.

Sometime in the second half of 1993, when Abel was pressing Rose for custody of Frank and Joela, Rose decided she did not want Abel to contact the children directly. She would not give him their phone number. Emmanuel, who was in Kansas City at the time, suggested to Abel that he should try to reach the children at school. Abel began calling the children at school.

In early March of 1994, Rose traveled to Sweden to visit her sons who were living with Abel, and to Germany to visit another son living with her sister, Esther. Frank, Joela, and Lucy stayed with Tom and Sally during her absence. Rose returned approximately four weeks later, but she became ill shortly thereafter and was admitted to a hospital. Rose called Sally and asked that Sally and Tom again take care of the three children. After Rose returned to the United States, she continued to limit Abel's contact with the children. She would not give him the telephone number where the children could be reached.

On April 19, 1994, while in the hospital, Rose executed a will which addressed the guardianship of Frank, Joela, and Lucy in the event of her death. 4 The will named Rose's brother, Marara, who lived in Burundi, as their guardian, but alternatively named Tom and Sally to serve as guardians if Rose's brother was unable to fulfill that responsibility. 5 Rose stated in her will that she did not believe Emmanuel was fit to care for the children.

In late April, Emmanuel came to Kansas City and demanded that Rose give him Joela and Frank. He did not seek custody of Lucy. Tom and Sally met with Emmanuel while he was in the area. Tom advised Emmanuel that the custody of the children would be determined by someone other than Tom and...

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