D.L.M. v. S.M.P.

953 S.W.2d 638, 1997 Mo. App. LEXIS 1820
CourtMissouri Court of Appeals
DecidedOctober 22, 1997
DocketNo. 21125
StatusPublished
Cited by15 cases

This text of 953 S.W.2d 638 (D.L.M. v. S.M.P.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.L.M. v. S.M.P., 953 S.W.2d 638, 1997 Mo. App. LEXIS 1820 (Mo. Ct. App. 1997).

Opinion

SHRUM, Judge.

This case involves T.A.P., a minor child. A trial court appointed T.A.P’s Maternal Grandmother as his guardian and conservator. The father of T.A.P. appeals the order. The mother of T.A.P. does not appeal.

In this non-jury case, review is under Rule 73.01(c).1 As this rule is construed, we must affirm the trial court’s decision, unless there is no substantial evidence to support it, [640]*640it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Estate of Williams, 922 S.W.2d 422, 423[1] (Mo.App.1996).

T.A.P. was born July 7, 1993. Father and Mother were teenagers when T.A.P. was conceived. They never married; however, there was no dispute about Father’s paternity.

When first born, T.A.P. lived “off and on” in the home of his Paternal Grandparents. When not in that home, T.A.P. was with Maternal Grandmother or Mother.

In March 1994, Maternal Grandmother petitioned for appointment as guardian and conservator of T.A.P. She alleged that both parents were “unfit, unwilling, or unable to assume the duties of guardianship.” At trial, Mother conceded her inability to properly act as T.A.P.’s natural guardian; consequently, most of the evidence focused on Father’s activities and the care given to T.A.P.2

After T.A.P.’s birth, Paternal Grandparents were “mostly” his “primary financial provider.” Beginning in March 1994 and continuing through April 26, 1996, T.A.P. lived in Paternal Grandparents’ home during the week and visited with his Maternal Grandmother on week-ends. Whenever T.A.P. needed medical care, Paternal Grandparents “took on that responsibility.”

Some evidence at trial suggested that T.A.P. had developmental problems. He was described as “slow on some things,” not talking as he should, and prone to “point and utter rather than talk.” Additionally, there was testimony that T.A.P. ate with his hands without using a spoon or fork, was frequently fed off a bottle (although three years old), was not out of diapers, and had difficulty interacting with other children. However, both Paternal Grandmother and Father testified that they did not consider T.A.P.’s development as unusually slow.

After the birth of T.A.P., Father lived with 'his parents occasionally, perhaps “half the time.” As one witness described it: “[H]e’s there and then he isn’t.” Once he left and moved in with friends at Salem. In September 1995, Father moved to Rolla after marrying a high school student. Father explained why he moved: “My wife and my parents ... didn’t like each other_ [L]iving with my parents with my wife was not feasible.”

When Father moved to Rolla, he left T.A.P. with Paternal Grandparents. His explanation for leaving the child was as follows: “I was seeking employment and I had no daycare for him.” Moreover, his wife was enrolled in high school at the time and could not care for T.A.P.

While at Rolla, Father found employment but quit after earning a “couple hundred dollars.” He left that job because it had been misrepresented to him. Another job at Rolla “didn’t work out” because “[i]t was traveling work” and Father “didn’t have a rehable car at the time.”

Before going to Rolla, Father had worked in St. Louis but quit that job after two or three weeks. Before Rolla and St. Louis, Father worked at a video store in Salem, Missouri, for three or four months. The video store job was Father’s sole employment history in the Salem area. He claimed that he was unsuccessful in trying to find a job at Salem.

At some point—when is not clear from the record—Father worked at a Hardee’s restaurant in Washington, Missouri. During that employment, he filed a worker’s compensation claim based on a diagnosis of “right carpel tunnel syndrome.” Father’s claim was settled about a year and a half before trial for $9,000 to $10,000. No evidence was presented on what was done with that money-

Father moved from Rolla three months after going there because he was told of job opportunities around the Lake of the Ozarks. Father moved with his wife to Eldon, Missouri. At Eldon they lived with Father’s friend and his family. Father found employment in Jefferson City and worked for a month and a half. While working he gave his friend $25 per week to help “put groceries on the table.” Father quit his job, how[641]*641ever, because the “engine locked up” on his car and he had no way to get to work. Father’s total earnings in 1995 were about $2,000.

Two or three weeks before trial, Father returned to his parents’ home. He and his wife had separated two months earlier, in part because of money problems and his inability to support her. At the time of trial, Father was not employed. He was, however, attending “Columbia College at Fort Leonard Wood” majoring in psychology. He was using Veterans’ Administration benefits (a benefit derived through his father who is a disabled veteran) and a Pell grant to finance this college work. Since Father’s automobile was not running, his only transportation was Paternal Grandparents’ car. When asked about his efforts to get a home of his own, Father answered: “Pm on the waiting list for Dent County Housing Assistance.” Asked if his wife would move into such housing if it became available, Father answered he did not know what she would do.

Julie Sayler, a Court Appointed Special Advocate (CASA), began her “case study” in September 1995. She visited in Maternal Grandmother’s home approximately twelve times and a like number in Paternal Grandparents’ home. From those visits, Mrs. Say-ler concluded that T.A.P. would be better off living with Grandparents—either set—than with Father. She viewed Father as unstable. When asked “[h]ow much caring for the child has_ [Father] done[,]” Mrs Sayler answered: “Not very much.”

Without stating its reasons, the trial court appointed Maternal Grandmother as guardian and conservator of T.A.P. This appeal by Father followed.

Father presents two points relied on. They read as follows:

“The trial court erred in issuing letters of guardianship ... when the evidence substantiated that the parent is fulfilling the duties and responsibilities of [natural] guardian because § 475.030-4, RSMO 1994, is applicable only when the parent (has not been but) is seeking ‘to assume’ the duties of guardianship, and as such, the trial court misapplied the law.”
“The trial court erred in issuing letters of guardianship and conservatorship under Chapter 475, RSMo 1994, when the evidence substantiated that the parent, who had not been adjudged unfit, who was willing to continue the duties and responsibilities of [natural] guardian, and who was able to continue the duties and responsibilities of [natural] guardian, any one of which must be shown to the contrary under § 475.030-4, and as such, the issuance of such letters is without evidentiary support.”

Although structured differently, both points claim that the evidence was insufficient to support a finding that Father was unable, unwilling, or unfit to perform the duties of a natural guardian; consequently, Father argues that the trial court erred in using § 475.030.4 to appoint a statutory guardian/conservator for T.A.P.3

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Bluebook (online)
953 S.W.2d 638, 1997 Mo. App. LEXIS 1820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dlm-v-smp-moctapp-1997.