In Re L.M., a Minor.

In re L.M., ) No. ED102342 ) A Minor. ) Appeal from the Circuit Court ) of Ralls County ) ) Honorable David C. Mobley ) ) Filed: May 3, 2016

I respectfully dissent. For the reasons discussed below and based upon this Court's standard of review, I would affirm the trial court's judgment granting Respondents Troy and Melinda Ritter's ( "Petitioners") petition for letters of guardianship and conservatorship of Appellant Corey Miller's ("Father") three-year-old son, L.M. I. BACKGROUND This is a close case 1 involving two diametrically opposed theories and conflicting testimony. On the one hand, Petitioners argued and presented testimony that Father was unable or unwilling to care for L.M. and that the appointment of Petitioners as guardians and conservators would serve the best interests of L.M. On the other hand, Father argued, by cross- examining Petitioners' witnesses and by presenting conflicting testimony of his own, that he was fit to care for L.M. and the appointment of Petitioners as guardians and conservators would not

1 After the guardian ad litem ("GAL") testified he did not find Father to be an unfit parent, he added, "that's about as close as I'm able to call it." The GAL also testified he was unable to make a recommendation on the issue of guardianship because "I really find it almost too close to call."

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serve the best interests of L.M. The trial court's judgment and credibility findings reflect the court believed Petitioners' theory and evidence over Father's, and I would find our standard of review requires our Court to uphold that decision. In its judgment granting Petitioners' petition for letters of guardianship and conservatorship, the trial court found, "Petitioners currently possess more stability in their lives and their past conduct further exemplifies a stable life . . .. [Father's] life style [sic] and circumstance, as they currently exist, and as shown by his past conduct, are not conducive to a stable home environment." In addition, the trial court found Father was unfit and that "[c]urrently, the best interests of [L.M.] are served [by] placing his custody with Petitioners." The trial court additionally found: The [c]ourt has considered the testimony of each witness and has made judgments regarding the credibility of each witness. The [c]ourt has accepted some of the witnesses as credible and rejected the other parts of the testimony of witnesses as not credible. Findings and conclusions of law made by the [c]ourt are consistent with the [c]ourt's determination of the credibility of the evidence and of the witnesses.

The trial court's judgment also awarded Father unsupervised visitation of L.M. Father appeals. II. STANDARD OF REVIEW AND GENERAL LAW As with any court-tried case, our Court will affirm a trial court's judgment involving guardianship proceedings 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. In the Matter of S.J.M., 453 S.W.3d 340, 342 (Mo. App. E.D. 2015). "We review questions of law de novo, but in reviewing questions of fact, we defer to the fact-finder." In re Estate of L.G.T., 442 S.W.3d 96, 100 (Mo. App. S.D. 2014) (emphasis omitted). Appellate courts defer to the trial court on factual issues because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be

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completely revealed by the record. The appellate court's role is not to re-evaluate testimony through its own perspective.

Id. (quoting White v. Director of Revenue, 321 S.W.3d 298, 308-09 (Mo. banc 2010)) (internal citations and emphasis omitted). Accordingly, in determining whether a trial court's judgment is supported by substantial evidence, an appellate court views the evidence in the light most favorable to the judgment, disregards all contrary evidence, and defers to the trial court's credibility determinations. Ivie v. Smith, 439 S.W.3d 189, 200 (Mo. banc 2014). "[A] trial court is free to believe or disbelieve all, part, or none of the testimony of any witness." Houston v. Crider, 317 S.W.3d 178, 186 (Mo. App. S.D. 2010) (quoting Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 394 (Mo. banc 2001)). Finally, our Court will only overturn a judgment under fact-based standards of review when we have a firm belief that the judgment is wrong. Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012). The term "unfit" is not defined in Missouri's guardianship statutes, but case law has given the term a broad definition and courts are given considerable discretion in applying that term. L.G.T., 442 S.W.3d at 111. Factors to consider include the stability in a parent's life, the environment in which the child would be raised, and the parent's efforts to furnish personal and financial support to the child. In Matter of J.D.D., 450 S.W.3d 836, 842 (Mo. App. E.D. 2014). Although the decision of whether a natural parent is unfit to have custody of his child must be based on existing conditions, the past may illuminate the understanding of present conditions. L.G.T., 442 S.W.3d at 112. Generally, where a parent is adjudged unfit to be his child's guardian or conservator, " the court shall appoint as a guardian or conservator of a minor the most suitable person who is willing to serve and whose appointment serves the best interest of the child to a stable and permanent placement." Section 475.045.1 and .3 RSMo Supp. 2010.

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III. DISCUSSION In this case, I agree that the trial court misapplied the law only to the extent its award of guardianship and conservatorship to Petitioners resulted from the court's comparison of the relative merits of Father with those of Petitioners. See L.G.T., 442 S.W.3d at 112. However, this in and of itself does not mean the trial court's judgment must be reversed because the trial court relied on many factors to reach its decision. See id. As the Southern District found in L.G.T., I would find that to the extent "the trial court was under any such mistaken notion" " that a determination of parental unfitness may be made by comparing the relative merits of a natural parent with those of the proposed guardian[s]," " it would not be fatal to the judgment because substantial evidence supported the trial court's finding that [Father] was unfit." Id. Similarly, I would affirm the trial court's judgment based upon the standard of review. See id. at 112-17. Here, Petitioners testified, (1) L.M. developed severe and reoccurring diaper rash while under Father's care; (2) Father did not provide health insurance for L.M.; (3) Father failed to take L.M. to the eye doctor even though L.M. was running into walls and L.M.'s natural mother was seventy-percent blind; (4) L.M. had a problem with biting which increased while he was under Father's care; (5) L.M. repeatedly had blisters on his feet from wearing shoes that did not fit him while he was under Father's care; (6) Father would inconsistently parent L.M. depending on whether Father had a girlfriend, and when Father did not have a girlfriend he would "choose[ ] to step out of [L.M.'s] life" and allow Petitioners to care for L.M.; (7) when L.M. was a baby and would cry, Father would "bounce him uncontrollably"; (8) when L.M. would throw up, Father would care more about the vomit getting on the furniture than on L.M.; and (9) Father clothed L.M. only in a onesie when it was cold outside. In addition, Father's former neighbor testified

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L.M. was sometimes present during incidents where Father and his girlfriend were fighting, using many swear words, and throwing items around the yard. 2

Viewing the evidence and inferences therefrom in the light most favorable to the judgment, disregarding all contrary evidence, and deferring to the trial court's credibility determinations, I would find there is substantial evidence to support the trial court's finding that Father was unfit. See J.D.D., 450 S.W.3d at 842 ("[w]hen proof is made that no natural parent is fulfilling parental duties, then appointment of a statutory guardian is necessary"); In re K.J.R.H., 330 S.W.3d 821, 822, 823 (Mo. App. S.D. 2011) (the trial court did not err in finding a father was unfit where there was "ample evidence that [he] was not ready to parent [the child]," including his lack of insurance and problems with anger management). Although Father contested Petitioners' witnesses' testimony, through cross-examination and by presenting contrary testimony, we must defer to the trial court's credibility determinations under these circumstances. L.G.T., 442 S.W.3d at 100. It bears repeating that "[t] he appellate court's role is not to re-evaluate testimony through its own perspective." Id. (quotations omitted). Finally, I disagree that an order of guardianship and conservatorship in this case would have the effect of terminating Father's parental rights to L.M. where the judgment awarded Father unsupervised visitation of L.M. In addition, if Petitioners were ultimately awarded guardianship and conservatorship of L.M., Father could file a petition to terminate Petitioners' guardianship and conservatorship once every 180 days. Section 475.083.6 RSMo Supp. 2002; see also section 475.083.2(3) RSMo Supp. 2002 (a trial court may terminate a guardianship and

2 Some but not all of the evidence discussed in this section is referred to in the trial court's judgment. In particular, the trial court found Father's former neighbor "testified witnessing much fighting, use of vulgar language, and things being thrown at each other in the front yard and sometimes when [L.M.] was present." The trial court also found "[t]he evidence suggests [Father] is most interested in having custody of [L.M.] when he has a girlfriend."

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conservatorship "[i]f the court finds that a parent is fit, suitable and able to assume the duties of guardianship and it is in the best interest of the minor that the guardianship be terminated"). IV. CONCLUSION In sum, based upon the language in L.G.T. indicating reversal is not necessary due to the extent the trial court misapplied the law, the standard of review, as well as the record and issues presented on appeal to this Court, I do not have a firm belief that the trial court's decision finding Father unfit is wrong. In addition, I do not have a firm belief that the trial court's decision finding the best interests of L.M. were served by placing his custody with Petitioners as of the time of the judgment is wrong given the evidence presented that Petitioners adequately cared for and provided stability for L.M. since he was born. Therefore, I would affirm the trial court's judgment granting Petitioners' petition for letters of guardianship and conservatorship of L.M.

ROBERT M. CLAYTON III, Presiding Judge