In re Gollaher

724 S.W.2d 597, 1986 Mo. App. LEXIS 5085
CourtMissouri Court of Appeals
DecidedDecember 23, 1986
DocketNo. 50868
StatusPublished
Cited by9 cases

This text of 724 S.W.2d 597 (In re Gollaher) 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
In re Gollaher, 724 S.W.2d 597, 1986 Mo. App. LEXIS 5085 (Mo. Ct. App. 1986).

Opinion

JOSEPH J. SIMEONE, Senior Judge.

I

This is an appeal from an order and judgment of the probate division of the Circuit Court of Pike County entered October 7, 1985 denying the “Application For Appointment of Guardian” filed by the appellants, Mr. and Mrs. Gollaher, the parents of their son William, an incapacitated person, and reaffirming and continuing an earlier order of the court appointing the public administrator of Pike County as the guardian of the person of William.1 The parents of William appeal the ruling.

The dispositive issue on this appeal is whether the finding of the probate division [598]*598that “the evidence was reasonably clear that the applicants, the parents, are not capable of the type of care and security this individual is entitled to” is supported by substantial evidence or against the weight of the evidence under the principles of Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). For reasons hereinafter stated, we reverse and remand with directions.

On appeal the appellants, Mr. and Mrs. Gollaher, contend that the probate division erred in appointing the public administrator as the guardian for the reasons that the judgment is “wholly erroneous” in that the order of appointment is not substantiated by the evidence and therefore violates the principles established in Murphy v. Car-ron, supra. The respondent, State of Missouri, contends that the court did not err because the evidence was sufficient to show that the Department of Mental Health is the proper facility to provide “treatment and habilitation” of Billy. “The primary point of contention,” says the state, “between the parties, and which formed the basis upon which the court denied the application [of the parents] involves the treatment and habilitation issues.”

II

The evidence at the October hearing shows that William and Dorothy Gollaher, have been married for some 23 years and have two adult children, William (known as Billy) and Linda. They reside in a rural area in the vicinity of Frankford, Missouri. Billy is a mentally incapacitated person with a low I.Q. Linda has higher functioning skills than Billy, but she too needs some training. Although Billy is mentally deficient, he can feed himself, shave, do simple household tasks such as make a bed or do the laundry under supervision but has difficulty in differentiating coins, and unless supervised may do such things as “taste detergent.” He does not, however, pose a danger to himself or others. Evidence indicated that his condition is such that “the chances for him to ever become a member working in the competitive work force is highly unlikely.”

In 1979 both children, Billy and Linda, were placed by the authorities in the Ruth Jensen Village, a state facility, because of some mental deficiencies and because of some substandard home conditions that existed at that time. In that year, Billy was made a ward of the Pike County Court and custody was given to the Department of Mental Health.

When Linda became 21 years of age she “signed” herself out of the Village and returned to her parents’ farm home and has remained there since. She did so because she wanted to be “with my mom and dad.”

At the evidentiary hearing on the parents’ “Application For Guardianship.” the evidence showed the following. Mr. Gol-laher, is self-employed, does “odd labor jobs” and raises most of the food — vegetables and animals for the family. The family “cans” their own foods and have about 500 cans in stock. He works “in the fields,” in “timber and grain” and in his work Billy could “help him.” They rent a home which is a better one than they had in 1979. Mr. Gollaher is financially able to provide for the family, and to provide an “adequate,” suitable home. He is aware of Billy’s mental retardation, and conscious that Billy needs supervision. If permitted to be the guardian, Mr. Gollaher would teach Billy “how to fix” things such as fences but would not permit him to work with heavy machinery. He believed he could teach Billy the basic skills of survival in life and would provide “love” and “care,” and “watch” and “supervise” him. As to “treatment and habilitation,” the father testified that he would start Billy out, “just like a job” and “gradually let him learn on his own.” He admitted he never attended any “treatment planning meetings” held by the Village nor discussed Billy’s needs with social workers.

Mrs. Geneva Sims, Billy’s “case manager” for about three years indicated that Billy is severely retarded, and that he would not likely be able to compete in the work force. She testified that “we” work “towards improvement of” Billy’s status. She admitted that Billy can do “manual-[599]*599type” work and does such work in the facility’s workshop, but needs love, care and supervision. She recognized that some severely retarded adults live with their parents and, if their habilitation needs are met, it is not “usually” harmful to the child.

The program specialist for the Ruth Jensen Village, Amy Vazquez, had daily contact with Billy in the Village. She indicated that a mentally retarded person needs a “structured” program. She testified that Billy was removed from the Ruth Jensen Village and transferred to another facility, in another county, for several reasons including his “unhappiness.”

The administrator of Ruth Jensen Village, Macie Petrie, at the time Billy was there, testified that before Billy was transferred to a new facility from Ruth Jensen, he was beginning to “experience some problems.” “He got very negative about everything, he didn’t want to work, bathe, shave, or eat”. Billy expressed his desire on “many occasions” to go “home.” After Billy would visit his parents, which was described as “positive,” and return to the Village, he “wouldn’t want to do anything that he was supposed to do — I think, because he wanted to go back home.” When he returned to the Village after home visits he was “confused” because he wanted to stay “home.” On many occasions he expressed his desire to go home. “He would always look forward to his home visits.”

None of these witnesses had ever visited the Gollaher home nor had personal contacts with the parents.

Certain relatives and an acquaintance of the family for many years testified that the Gollaher home is now “adequate,” sufficient to provide basic needs, warm, and it has a “beautiful garden.” The Gollahers are “good parents,” and provide clothing and would provide their children with “love,” “care,” “affection,” and finances.

Mrs. Gouch, a woman of mature years and mother of six, and an acquaintance of the Gollahers, who knew Billy as a “kid,” and who frequently visited the Gollaher’s residence testified that the Gollahers were able to provide for the family, loved their children, treated them “nice” and ruled “fair.” She said, “Really deep down in my heart, I believe in my soul that ... that they’ll do their best that they feel for their children.” In her opinion it would be in Billy’s best interests to live with the family. She even offered to help. All these witnesses testified that the parents would not abuse Billy.

Witnesses for the Hannibal Regional Center of the Department of Mental Health introduced the Diagnostic Evaluation Report and the “Individual Habitation [sic] Plan” for Billy. These witnesses stated that Billy needs a “very closely supervised habilitative environment” to allow him to grow in skills.

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Bluebook (online)
724 S.W.2d 597, 1986 Mo. App. LEXIS 5085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gollaher-moctapp-1986.