In the Estate of R.M.T., Minor Bonita Ann Tipton v. Joseph W. Meyers

In the
Missouri Court of Appeals
Western District
IN THE ESTATE OF R.M.T., )
MINOR; )
) WD82184
BONITA ANN TIPTON, )
) OPINION FILED: June 25, 2019
Respondent, )
)
v. )
)
JOSEPH W. MEYERS, )
)
Appellant. )
Appeal from the Circuit Court of Caldwell County, Missouri
The Honorable Jason A. Kanoy, Judge
Before Division One: Victor C. Howard, Presiding Judge, Lisa White Hardwick, Judge
and Gary D. Witt, Judge
Appellant Joseph Meyers ("Father") appeals the order of the probate division of the
Circuit Court of Caldwell County, appointing Bonita Tipton ("Grandmother") guardian of
R.M.T ("Child"). On appeal, Father argues that the circuit court erred in determining that
he was unwilling, unable, or unfit to assume the duties of guardianship over Child. We
affirm.
Factual Background
Child was born on September 24, 2007, to Father and Barbara Tipton ("Mother").
Grandmother is Child's maternal grandmother. In 2017, Mother was granted sole legal and
physical custody of Child and Father was ordered to pay child support ("2017
Modification"). Mother had issues with drugs and at one point had been incarcerated due
to these issues. Child began living with Grandmother in Hamilton, Mo. on February 15,
2018. On April 18, 2018, Grandmother filed a petition seeking to be appointed as guardian
of Child ("Petition"). At the time of the guardianship hearing, Mother was not incarcerated
and resided in Chillicothe, Mo. even though Child was residing with Grandmother. Mother
consented to the appointment. Father filed an answer opposing the appointment.
The trial was held on September 28, 2018.1 Grandmother testified that Father had
not had visitation with Child since August 14, 2016. At that time, Child had stayed with
Father for approximately six weeks. Grandmother alleged that when she and Mother met
Father to pick-up Child, Father's wife ("Step-Mother") grabbed Child by the arm, which
Child had recently broken, spun Child by the arm, and told her to get back into Father's
vehicle. Child broke free and returned to Grandmother's vehicle and the three drove to the
police station and Mother and Child went in to file a report. Grandmother alleged that
Child had shared that she was rarely allowed to call home and that, when she did, Step-
1
The transcript of the trial notes 44 times that the testimony or question is "indiscernible." At times this
occurs during testimony relevant to this Court's review. No party challenges the sufficiency of the transcript or our
ability to review the issues presented based on these transcript issues. The trial court needs to take appropriate
measures to ensure that future trials are recorded with sufficient clarity to allow a full transcript to be prepared so
that a new trial is not required. See A.J.M. v. Greene County Juvenile Office, 158 S.W.3d 878 (Mo. App. S.D.
2005).
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Mother was always present listening. Child was allegedly forced to eat spilled food off the
floor and at one point had been locked out of the house. Father denied any knowledge of
these incidents. Grandmother testified that she felt that Father was unfit because he did
not protect Child from Step-Mother.
Grandmother also testified that between the summer of 2016 and the 2017
Modification, Father was supposed to have visitation every third weekend of the month but
he failed to exercise this right. Following the 2017 Modification, visitation was dependent
upon the agreement of the parties but Father did not attempt any visitation until two weeks
before the hearing on the guardianship. Father and Child spoke on "Facebook or
messaging" and on one occasion arranged for him to come visit but ultimately Father did
not come nor did he communicate why he did not attend. Child was emotionally upset by
him failing to show up.
Father had been paying child support to Mother although it is unclear from the legal
file when that began. Father testified that he was not aware that Child was residing with
Grandmother and that, despite attempts to locate her, he only became aware of her
whereabouts after he was served with the Petition. Father maintained that the 2016 visit
with Child had been good and there were no issues between Child and Step-Mother. Father
alleged that at the 2017 Modification hearing he "didn't have a lawyer. . . . I was not allowed
to represent myself to find out anything or ask any questions or nothing. I was told that I
can't say anything." Father also justified his failure to attend the recent visitation by saying
"How do I know when I come up here to see her if that [sic] I'm going to be driving all the
way up here and no one shows up?"
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Step-Mother also testified that Mother was the aggressor in the 2016 altercation.
Further, Step-Mother testified that she and Child "get along . . . just great."
Mother did not attend the hearing.
Following the hearing, the court granted Grandmother guardianship finding in
relevant part:
Court finds natural mother has consented to appointment of guardian. Court
finds natural father has abandoned minor child and is, therefore, unwilling to
provide care for minor child. Court, therefore, finds minor child in need of
guardian. Court finds petitioner is fit and proper individual to serve as
guardian for child.
This appeal followed.
Standard of Review
"As in other bench-tried cases, this Court will affirm the judgment unless it
incorrectly declares or applies the law, is not supported by substantial evidence, or is
against the weight of the evidence." In re A.L.R., 511 S.W.3d 408, 411-12 (Mo. banc
2017).
A claim that there is no substantial evidence to support the judgment or that
the judgment is against the weight of the evidence necessarily involves
review of the trial court's factual determinations, and a court will only
overturn a judgment under these fact-based standards of review when the
court has a firm belief that the judgment is wrong. Pearson v. Koster, 367
S.W.3d 36, 43 (Mo. banc 2012). Due regard is given to the trial court to
judge the credibility of the witnesses. In re Estate of A.T., 327 S.W.3d 1, 2
(Mo. App. E.D. 2010).
In re L.M., 488 S.W.3d 210, 214 (Mo. App. E.D. 2016). Questions of law are decided de
novo. Id. "When presented with an issue of mixed questions of law and fact, we defer to
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the trial court's factual findings so long as they are supported by competent, substantial
evidence, but review de novo the application of the law to those facts." Id.
Discussion
Father's sole point on appeal is that the circuit court erred in awarding Grandmother
guardianship of Child because there was "no evidence" that Father was unwilling, unable,
or unfit to have custody over Child.
In Missouri, there is a rebuttable presumption that a natural parent should have
custody over his or her child. In re Estate of A.T., 327 S.W.3d 1, 2 (Mo. App. E.D. 2010).
That presumption, however, is overcome if there is sufficient evidence presented that the
parent is unfit, unwilling, or unable to take charge of the child. In the Matter of J.D.D.,
450 S.W.3d 836, 841 (Mo. App. E.D. 2014). "[A] court should not appoint a guardian for
a child unless there is no parent available, willing, and able to care and provide for the
child." In re L.M., 488 S.W.3d at 215 (citing In re Estate of A.T., 327 S.W.3d at 2)). Third-
parties do not stand on equal footing to parents, and the presumption that a parent should
be the custodian remains until they have been demonstrated to be unfit, unwilling, or
unable. Id. This is true even when the court makes a determination that granting
guardianship to a close relative is in the best interest of the child. See Cotton v. Wise, 977
S.W.2d 263 (Mo. banc 1998).
In this case, the court determined was that Father was "unwilling" to act as guardian
because he had already "abandoned" Child. "In the context of Missouri's guardianship
statutes, the terms "unwilling" and "unable" are not well defined." In re Matter of T.A.P.,
953 S.W.2d 638, 642 (Mo. App. S.D. 1997). As the Court discussed in In re T.A.P.:
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One commentator notes that the terms unwilling and unable "essentially refer
to a species of abandonment of the child." 4B JOHN A. BORRON, JR.,
MISSOURI PRACTICE, PROBATE AND SURROGATE LAWS MANUAL 20 (1995).
Where termination of parental rights is at issue, Missouri courts describe
abandonment as: (1) a parent voluntarily and intentionally relinquishing the
custody of the child to someone else with the intent to never claim parental
rights, nor perform parental duties; or (2) a parent withholding intentionally
from the child, without a just cause or excuse, his or her presence, care, love,
and protection, as well as maintenance and the opportunity for displaying
filial affection. H.W.S. v. C.T., 827 S.W.2d 237, 239–240 (Mo. App. 1992);
S.C.H. v. C.W.H., 587 S.W.2d 945, 947 (Mo. App. 1979).
Id.
Giving deference to the court's factual findings, the evidence at the guardianship
hearing showed that Father had not exercised any visitation with Child in the two years
prior to the guardianship hearing. Although Father testified that he was unaware of Child's
location or that she was living with Grandmother so could not exercise visitation, the court
was free to disbelieve this testimony. In re L.M., 488 S.W.3d at 214 ("Due regard is given
to the trial court to judge the credibility of the witnesses."). Child did not began living with
Grandmother until 2018 and Father offered no explanation why he was not aware of Child's
location prior to her moving in with Grandmother. Further, in 2017, Mother was granted
sole physical and legal custody.2 Father was granted visitation rights but failed to exercise
them. When Father did finally arrange for a visit with Child, just two weeks before the
2
See In re L.M., 488 S.W.3d at 218. In In re L.M., great-uncle and great-aunt sought guardianship over the
child. The court noted that, only nine months prior to the request for guardianship, child's father had been granted
sole physical custody and the petitioners had consented to that judgment. The Court noted that, although the
guardianship statutes do not themselves discuss the change in circumstances necessary for a custody modification
there is an interplay between guardianship and custody. The Court in In re L.M. found that the recent custody
judgment served as "further support" that father should remain as child's custodian rather than giving guardianship
to aunt and uncle. Id. "The rationale for requiring a substantial change in the circumstances of the child or the
custodian, whether parent or third party, includes the desire to maintain a stable nurturing environment for the child.
. . ." Id. (quoting Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999)).
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guardianship hearing, Father failed to appear. Father's only justification for failing to
attend the visitation was to state that he had no way of knowing whether Child would have
been there. There was also evidence that Father and Child communicated through
"Facebook or messaging" but Father fails to explain why he could not have learned Child's
location during these communications.
Certainly there was some evidence to support a finding that Father had not
abandoned his daughter. He was paying child support at the time of the hearing and had
been doing so since at least 2017. He also opposed the guardianship petition and stated
that he desired to have custody of Child. However, the determination as to whether a parent
is unfit, unable, or unwilling is "based not only on present circumstances, but on the natural
parent's history of dealing with the [child]." Cotton, 977 S.W.2d at 265. Father had not
seen Child since 2016 and offered little justification for such a lapse. Most telling was that
only two weeks before trial Father failed to show for what would have been his first
visitation with Child in over two years. His testimony regarding his behavior showed little
concern as to his behavior's effect on Child. Even given a presumption of parental custody,
we cannot say that there was insufficient evidence to support the circuit court's findings.
Despite Father's statement that he was willing to have custody, Grandmother put forth
sufficient evidence to support the circuit court's finding that Father had abandoned Child
in failing to see her in over two years and was unwilling or unable to act as Child's
custodian.
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Conclusion
For the reasons stated above, the circuit court did not err in finding that there was
sufficient evidence to demonstrate Father was unwilling or unable to take custody of Child.
As such, the trial court did not err in granting Grandmother's Petition. Judgment affirmed.
__________________________________
Gary D. Witt, Judge
All concur
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