Estate of A.T.

327 S.W.3d 1
CourtMissouri Court of Appeals
DecidedSeptember 14, 2010
DocketNo. ED 94089
StatusPublished
Cited by9 cases

This text of 327 S.W.3d 1 (Estate of A.T.) 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
Estate of A.T., 327 S.W.3d 1 (Mo. Ct. App. 2010).

Opinion

LAWRENCE E. MOONEY, Judge.

The maternal grandmother, Regina Hayes, appeals the order of the probate division of the Circuit Court of the City of St. Louis appointing the paternal grandmother, Sharond Thorpe, as statutory guardian for the minor child, A.T., and designating the paternal grandmother as representative payee of the minor’s social-security benefits. Based on the record presented, we affirm the appointment of the paternal grandmother as statutory guardian. However, because a state court has no authority to designate a representative payee of a minor’s social-security benefits, we modify the trial court’s order to eliminate that provision. As modified, we affirm.

A.T. was born in 2004 to the mother, Shanay Branner, and the father, Brandon Thorpe. Shortly after A.T.’s birth, A.T. and her parents moved into the paternal grandmother’s home. Early in 2005, the mother suffered a head injury in a motorcycle accident and spent several months in the hospital. When the mother left the hospital, she moved in with the maternal grandmother, with whom she continued to live at the time of trial. The mother underwent physical, occupational, and speech therapy, and was preparing to undergo more therapy at the time of trial, nearly five years after the accident. A.T. has not lived with her mother since the 2005 accident.

After the mother’s accident, A.T. continued to live with her father and paternal grandmother. In 2007, the father secured sole physical custody of A.T., and the parents shared joint legal custody. The mother enjoyed temporary custody and visitation. The father suffered brain trauma in a motor-vehicle accident in 2008. The father lived in a nursing facility at the time of trial, and the paternal grandmother testified that she believed the father was unaware of his surroundings.1

The paternal grandmother petitioned for guardianship of A.T. after the father’s accident. The mother opposed the paternal grandmother’s petition, and the maternal grandmother cross-petitioned for guardianship. The paternal grandmother, the maternal grandmother, and the mother testified at trial as part of the paternal grandmother’s ease. Neither the mother nor the maternal grandmother called any witnesses. The evidence showed that A.T. has lived with the paternal grandmother since A.T. was two months old, and that the paternal grandmother has provided for all of A.T.’s daycare, school, and medical needs since the father’s accident. A.T.’s guardian ad litem recommended that the court appoint the paternal grandmother as A.T.’s guardian. The trial court concluded that both parents were unable to care for A.T., and that it was in A.T.’s best interest to appoint her paternal grandmother as [2]*2guardian. The maternal grandmother appeals.

In three points on appeal, the maternal grandmother challenges the trial court’s appointment of the paternal grandmother as A.T.’s guardian and as representative payee of A.T.’s social security benefits.

In her first two points, the maternal grandmother challenges the trial court’s appointment of the paternal grandmother as A.T.’s statutory guardian. In point one, she asserts that the trial court erroneously applied a best-interest-of-the-child analysis in appointing the paternal grandmother as A.T.’s guardian. In point two, the maternal grandmother argues that the evidence was insufficient to overcome the mother’s rebuttable presumption that she, as a natural parent, is the appropriate custodian for A.T. Because the analyses of the maternal grandmother’s first two points are interrelated, we consider them together.

We must affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Flynn v. Flynn, 34 S.W.3d 209, 211 (Mo.App. E.D.2000). We give due regard to the trial court to judge the credibility of witnesses, Estate of Williams, 922 S.W.2d 422, 423 (Mo.App. S.D.1996), and the court may accept all, some, or none of a witness’s testimony, Malawey v. Malawey, 137 S.W.3d 518, 522 (Mo.App. E.D.2004).

Three statutes govern appointment of a guardian for a minor. Flynn, 34 S.W.3d at 211. Section 475.025 RSMo. (2000)2 provides that the father and mother are the natural guardians of a minor child. Section 475.030.4 authorizes the court to appoint a statutory guardian in three instances, including where, as here, the parents, or the sole surviving parent, are unwilling, unable, or adjudged unfit to assume guardianship duties. Finally, section 475.045.1 RSMo. (Supp.2009) gives the parent(s) first priority in appointment as guardian, except as otherwise provided in section 475.030. If the parents cannot fulfill guardianship duties, then the court should appoint the most suitable person willing to serve, whose appointment serves the best interests of the child for a stable and permanent placement. 475.045.3 RSMo. (Supp.2009).

Reading these statutes together, 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 as a natural guardian.3 Flynn, 34 S.W.3d at 211. These statutes create a rebuttal presumption that a natural parent is the appropriate custodian for his or her child. Cotton v. Wise, 977 S.W.2d 263, 264 (Mo. banc 1998); Flynn, 34 S.W.3d at 211. Evidence that a parent is unwilling, unable, or unfit to take charge of the child, however, will overcome this presumption. Cotton, 977 S.W.2d at 264; Flynn, 34 S.W.3d at 211.

Here, the trial court found that neither the father nor the mother was able to serve as A.T.’s natural guardian because of [3]*3their physical and mental disabilities. The paternal grandmother testified that AT.’s father suffered brain trauma in a motor-vehicle accident in 2008 that rendered him unable to care for A.T. The father lived in a nursing facility at the time of trial, and the paternal grandmother believed that the father was unaware of his surroundings.

AT.’s mother suffered a head injury in a motorcycle accident in 2005, and she spent some eight months in the hospital. While the mother has had temporary custody of, and visitation with, A.T., she has not lived with the child since the 2005 accident. The mother underwent physical, occupational, and speech therapy, and expected to undergo more therapy at the time of trial, nearly five years post-injury. The maternal grandmother testified that the mother had no checking account because she could not write checks. The mother had difficulty answering questions that required more than a “yes” or “no” answer, and the trial court observed that she exhibited “severely impaired speech.” The mother had to count “one, two, three, four — five” when asked A.T.’s age. When asked what she and AT. liked to do together, the mother could only say, “[tjhat stuff, stuff.” The guardian ad litem recommended that the court appoint the paternal grandmother as AT.’s guardian in light of the mother’s limitations and the guardian ad litem’s belief that the mother could not provide primary care for A.T.

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327 S.W.3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-at-moctapp-2010.