In re L.M., 488 S.W.3d 210 (Mo. Ct. App. 2016)

This case discusses the presumption in favor of parents as guardians of their children, and the circumstances under which that presumption can be overcome. It also discusses the importance of following the guardianship statutes in order to protect parental rights.

“The trial court’s judgment in guardianship proceedings is to be affirmed unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. In Matter of J.D.D., 450 S.W.3d 836, 840 (Mo.App.E.D. 2014) ; Blakely v. Blakely, 83 S.W.3d 537, 540 (Mo.banc 2002).”

“In re Estate of A.T., 327 S.W.3d at 2 (citing Flynn, 34 S.W.3d at 211 ). Importantly, these statutes create a rebuttable presumption that a parent is the appropriate custodian for his or her child.”

“That presumption can be overcome, however, if there is sufficient evidence presented that the parent is unfit, unwilling, or unable to take charge of the child.”

In re Estate of Moreau, 168 S.W.3d 548 (Mo. Ct. App. 2005)

This case discusses the termination of a guardianship, and specifically addresses the fitness of a parent to reassume guardianship duties. It is relevant to the research request because it provides guidance on the factors a court may consider when determining whether to grant or deny a guardianship.

“Insofar as pertinent here, § 475.083.2 states “[a] guardianship . . . may be terminated by court order after such notice as the court may require: . . . (3) If 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.” In March 2002, Father filed a third amended petition to terminate the guardianship of C.D. with the probate division of the Pulaski County Circuit Court.”

“The Councils denied this allegation in their answer to the petition. Mother did not join in Father’s petition or otherwise seek to have the trial court reconsider or set aside its earlier adjudication that she was unfit to serve as C.D.’s guardian.”

“A second trial was held on July 9, 2003 to determine Father’s current fitness to serve as C.D.’s guardian.”

Flynn v. Flynn, 34 S.W.3d 209 (Mo. Ct. App. 2000)

This case discusses the circumstances under which a court may appoint a guardian for a minor child, including when the parents are “unwilling, unable, or adjudged unfit” to assume guardianship duties. It also emphasizes the importance of evidence in making such a determination.

“We reverse and remand in that there was no evidence that Parents were unwilling, unable, or unfit to assume the guardianship duties of Minor.”

“Section 475.025 RSMo 1994 states that a father and mother are the natural guardians of a minor child. Section 475.030 authorizes the granting of guardianship letters in three instances: (1) when a minor’s parents are deceased; (2) “[w]here the parents or the sole surviving parent of a minor are unwilling, unable, or adjudged unfit to assume the duties of guardianship,” or (3) where the minor’s parents’ parental rights have been terminated.”

“Reading these statutes together, “letters of guardianship for a minor should not issue unless there is no parent available, willing or able to fulfill the parental role in caring for a child and providing for that child’s needs as natural guardian.” Estate of Casteel v. Guardian ad Litem, 17 S.W.3d 585, 588 (Mo.App. 2000) ( citing Reece v. Reece, 890 S.W.2d 706, 710 (Mo.App. 1995)).”

D.Q. v. M.K.F. (In re B.K.F), 623 S.W.3d 792 (Mo. Ct. App. 2021)

This case discusses the factors a court should consider when appointing a guardian for a minor child, including whether a parent is “available, willing, and able to care and provide for the child.” Although the case does not specifically address whether the court should deny a guardianship because the proposed guardian will not respect the wishes of the parent, it does provide guidance on the general principles that the court should apply.

“In its judgment, the trial court granted the guardianship and terminated the juvenile cases, finding that Mother was unable and unwilling to assume the duties of caring for the Children based on the evidence presented. The court found that Mother had not provided her addresses to the caseworker as required by the permanency plan. The judgment also found that Jamison had been unable to verify whether Mother’s housing situation was appropriate.”

“In re L.M. , 488 S.W.3d at 215. There is a rebuttable presumption that a parent is the appropriate custodian for his or her child.”

K.R. v. A.L.S. (In re A.L.R.), No. WD79123 (Mo. Ct. App. Jul. 26, 2016)

This case discusses the statutory requirements for appointing a guardian for a minor in Missouri, which is relevant to the research request, but it does not specifically address whether the court should deny a guardianship because the proposed guardian will not respect the wishes of the parent.

“Missouri’s Guardianship Statutes Permit a Parent’s Presumptive Role as the Natural Guardian of a Minor To Be Rebutted Where a Parent Is Unwilling , Unable , or Unfit To Serve as Guardian Missouri statutes provide for the appointment of guardians “to protect the well-being of individuals who are not able to care for themselves.” In re Link, 713 S.W.2d 487, 493 (Mo. banc 1986).”

“Section 475.025. Parents are thus the presumptive appropriate natural guardians for their minor children.”

“Reece v. Reece, 890 S.W.2d 706, 710 (Mo. App. W.D. 1995).”

“Letters of guardianship of the person of a minor may be granted: (1) Where the minor has no parent living; (2) Where the parents or the sole surviving parent of a minor are unwilling, unable or adjudged unfit to assume the duties of guardianship; (3) Where the parents or the sole surviving parent have had their parental rights terminated under chapter 211.”

O’Reilly v. O’Reilly, 640 S.W.3d 128 (Mo. Ct. App. 2022)

This case discusses the appointment of a guardian and the role of the guardian ad litem, which may be relevant to the research request even though it does not specifically address the question of whether the court should deny a guardianship because the proposed guardian will not respect the wishes of the parent.

“MARY W. SHEFFIELD, P.J. Lauren O’ Reilly (“O’Reilly”) appeals from a judgment appointing her father, Lawrence O’Reilly (“Respondent”) as her guardian after finding her incapacitated. In a single point, O’Reilly claims the trial court erred by failing to replace Respondent as emergency guardian ad litem with an “independent guardian ad litem ” because it “affirmatively appeared to the court that [Respondent] had a conflict of interest in proceeding as the petitioner seeking to impose a guardianship upon [O’Reilly.]”

“O’Reilly appeals in a single point: The trial court erred by failing to remove [Respondent] as temporary guardian and replace [Respondent] with an independent guardian ad litem, because it affirmatively appeared to the court that [Respondent] had a conflict of interest in proceeding as the petitioner seeking to impose a guardianship upon his daughter, [O’Reilly], but nevertheless the court did not remove [Respondent] as temporary guardian, in that [O’Reilly] expressly said that she did not want a guardian and did not believe that she needs one, but [Respondent] nevertheless litigated that issue against her wishes, and [O’Reilly’s] attorney raised the conflict of interest multiple times with the court.”

“In fact, “[t]he guardian ad litem concept implies the guardian substitutes his judgment for that of the [ward] and proceeds almost independently of the [ward’s] will.””

“Schwarz v. Ryan , 754 S.W.2d 949, 951 (Mo. App. E.D. 1988).”

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

This case discusses the rebuttable presumption that a natural parent is the appropriate custodian for a child, and the circumstances under which that presumption can be overcome. Although the case does not specifically address whether a proposed guardian’s refusal to respect the parent’s wishes is grounds for denying guardianship, it does provide guidance on the factors the court will consider in making a guardianship determination.

“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.”

“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. 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.”

“Evidence that a parent is unwilling, unable, or unfit to take charge of the child, however, will overcome this presumption.”

Patterson v. Patterson, 207 S.W.3d 179 (Mo. Ct. App. 2006)

The case discusses the importance of the child’s best interests in custody and visitation decisions, and the court’s discretion in making those decisions. It also addresses the role of a guardian ad litem in such cases, which may be relevant to the research request.

“In this case, the Court does find and conclude from the evidence that it is not in the child’s best interest to have such contact with [father]. The Court further concludes that unrestricted contact by [husband] with Tyler would endanger Tyler’s physical health and impair his emotional development. In fact, unrestricted contact by [father] during the marriage, and prior to this Court’s Order for restricted contact, has already impaired Tyler’s emotional development and his physical health and resulted in the necessity of extended therapy for Tyler. . . . [Emphasis in original.] Wife testified that she gained weight; that husband was unhappy about her appearance.”

“The court is presented with a dilemma in this case regarding the appointment of a supervisor for [husband’s] court ordered parenting time.”

“Child custody and related visitation are matters dependent on careful consideration of evidence, including assessment of the credibility of witnesses.”

Guier v. Guier, 918 S.W.2d 940 (Mo. Ct. App. 1996)

This case discusses the discretion of the trial court in determining custody and guardianship issues, and the importance of considering all relevant factors. Although it does not specifically address the question of whether a guardian should be denied because they will not respect the wishes of the parent, it does provide guidance on the court’s approach to such issues.

“Whether to believe the testimony of either party was a matter of discretion left to the trial court. The trial court clearly considered the counseling issue in reaching its conclusion.”

“The decision whether to ascertain such wishes through an interview of the child in chambers is discretionary with the trial court. Osmun v. Osmun , 842 S.W.2d 932, 936 (Mo.App. 1992). The court interviewed Karla and Bobby in chambers, but did not question them as to who they wished to live with.”

McCreary v. McCreary, Docket Number WD 52469, DOCKET NUMBER WD 52469 (Mo. Ct. App. May. 27, 1997)

This case discusses the importance of a trial court being presented with a sufficient evidentiary basis for finding a change in circumstances before modifying custody, which could be relevant to the research request’s focus on whether a court should deny a guardianship.

“In summary on Point I, we recognize that in a child custody case, more so than in other civil cases, we are to pay a great deal of deference to the trial court’s decision as to who should be awarded custody. Guier , 918 S.W.2d at 946. However, in a case of modification, such as in the instant case, as opposed to an original determination of custody, before a trial court can make the decision who should have custody in order to best serve the interests of the children, it must first be presented with a sufficient evidentiary basis for finding a change in circumstances as required under § 452.410.1. Id . Sumnicht , 906 S.W.2d at 727.”

“In all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue, the court may appoint a guardian ad litem.”

In re Benson, 124 S.W.3d 79 (Mo. Ct. App. 2004)

“Furthermore, the preference for family members is not unquestionable, and exceptions do exist. “The rule is that relatives should be appointed over strangers as a guardian unless the record reveals evidence of dissension in the family, adverse interest of the relatives and the incompetent, the lack of business ability of the relative, or any other reason why the stranger would best serve the interests of the incompetent.””

“See Matter of Hancock, 828 S.W.2d at 709; Estate of Korman, 945 S.W.2d 10, 13 (Mo.App. 1997); Keyser, 81 S.W.3d at 171. Given the testimony regarding the extensive familial history of finger-pointing, mistrust, alienation, and manipulation, and that it likely was of a continuing and ongoing nature, we discern the Probate Court believed there was significant dissension among Wanda’s children which was not in her best interest.”

“Keyser, 81 S.W.3d at 171; see Matter of Hancock, 828 S.W.2d at 709.”

🟥 In re L.C.F, 987 S.W.2d 830 (Mo. Ct. App. 1999)

“Therefore, the issue before this court is whether a guardianship may be continued when a parent who is found fit, willing and able to care for her children requests that it be terminated. Because we find that the trial court erroneously applied the guardianship statute, we need not consider Ms. Warren’s remaining points on appeal.”

“Reading §§ 475.025, 475.030, and 475.045 in pari materia, the Reece court found: [L]etters of guardianship for a minor should not issue unless there is no parent available, willing or able to fulfill the parental role in caring for a child and providing for that child’s needs as natural guardian. It is only when no natural guardian is fulfilling the parental duties and obligations [that] the appointment of a statutory guardian [is] necessary. 890 S.W.2d at 710.”

“Therefore, when determining whether a guardianship is no longer necessary, the courts of this state are bound by those standards.”

In Interest of J.L.H, 647 S.W.2d 852 (Mo. Ct. App. 1983)

“The review of the judgment in a court tried case is governed by Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and should be set aside only if there is no substantial evidence to support it, was against the weight of the evidence, or erroneously declared or applied the law. The trial court is in a better position to judge the sincerity and character of the witnesses, E____ (S____) v. E____, 507 S.W.2d 681, 684 (Mo.App. 1974), and there is a presumption the trial court studied the custody matter carefully, found in the best interest of the child and its judgment will not be disturbed unless the welfare of the child requires some other disposition, Fastnacht v. Fastnacht, 616 S.W.2d 98, 100 (Mo.App. 1981); Wells v. Wells, 623 S.W.2d 19, 22 (Mo.App. 1981).”

“In evaluating the effect of this statute it should be noted that the guiding light for determining custody is the idea of doing what is in the best interests of the child.”

“Parks v. Cook, 180 S.W.2d 64, 68 (Mo.App. 1944); Brewer v. Cary, 148 Mo. 193, 127 S.W.2d 685 (1910).”

“The watchword in Missouri is not the religious protection statute but the best interest test, and affords custody to a person of the parent’s religion only if it is in the best interest of the child.”

In Interest of K.K.M, 647 S.W.2d 886 (Mo. Ct. App. 1983)

“Turning to the merits of the action, this court notes that whenever a minor child is brought into the jurisdiction of a court for a determination of its custody, the inquiry is in the nature of an equitable proceeding and the claims of all parties, even in the case of the parents themselves, must be subordinated to the paramount concern for the child’s welfare. W. v. M., W. W., 490 S.W.2d 64, 67[4-5] (Mo. banc 1973); Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949, 951[1] (Mo.App. 1945), cited by the Missouri Supreme Court in In re Shepler, 372 S.W.2d 87, 90[2] (Mo. banc 1963). “The law presumes that the best interests of the minor children are best served by the vesting of custody in the parent.” M.P.M. v. Williams, 611 S.W.2d 274, 277[3-5] (Mo.App. 1980). The natural parent has a superior right to custody of the child as opposed to the interests of third parties.”

Flathers v. Flathers, 948 S.W.2d 463 (Mo. Ct. App. 1997)

“In holding that letters of guardianship of minors are not prior custody decrees for purposes of § 452.410, we recognize that § 452.445(2) defines the appointment of a guardian of the person as a “custody proceeding,” and § 452.445(3) defines a judicial order entered in such proceeding as a “custody decree.””

“In awarding custody of the children to respondent, the trial court stated in pertinent part that: I think it’s very clearly the goal of the statutes, both in the probate code and in the dissolution of marriage sections of the statutes, that the legislature anticipates and directs that children are to be raised by their own parents unless the court finds very good reasons not to be doing that. . . . . . . Now, in order to get to third party custody or visitation, the court has to find that each parent is unfit, unsuitable, or unable to be custodian, or the welfare of the interest requires, and it is in the best interests of the child, then custody, temporary custody, or visitation may be awarded to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child. These statements of the trial court reflect that in awarding custody of the children it correctly recognized the parental presumption applied in the case at bar.”

“Although we hold that the parental presumption applies under the circumstances of this case, that is not to say that the actual physical custody held by appellants pursuant to the letters of guardianship could not act to “rebut” the presumption.”

“The statute creates two bases for rebutting the presumption, the “fitness” basis and the “welfare” basis.”

State ex rel. Cramer v. Coleman, 582 S.W.3d 110 (Mo. Ct. App. 2019)

“Relator’s petition alleges Respondent erred as a matter of law and exceeded his jurisdiction by discharging her counsel and in proceeding with the termination of parental rights action without Relator being represented by counsel. Relator’s petition further asserts the disagreements about what was in Relator’s best interests with regards to the termination of her parental rights motivated Farmer to file the motion seeking to have Crosby discharged.”

“Pursuant to an order of this Court, Farmer’s counsel filed an answer with suggestions in opposition on Respondent’s and Farmer’s behalf.”

“In re J.R. , 347 S.W.3d 641, 644 (Mo. App. E.D. 2011).”

“See In Interest of J.G.W. , 545 S.W.3d 928, 929 (Mo. App. S.D. 2018) ; see also section 211.462.2 RSMo 2000.”

Martin v. Allen (In re Adoption of Debrodie), 452 S.W.3d 644 (Mo. Ct. App. 2014)

“While Mary Martin (Mary) testified to a willingness to maintain Carl’s relationship with his mother, she also testified that she did not pursue guardianship of Carl at the time the Callaway County Circuit Court appointed the public administrator as guardian, in part so she would not “have to deal with his parents anymore.” At the time of the final hearing on the Martins’ petition for adoption, the Martins had not visited Carl for nearly two years. Although the Martins resided in Holt’s Summit when they filed the adoption petition, a close distance from Carl who resides in Fulton, at the time of the final hearing the Martins had moved 60 miles south of Kansas City, a considerable distance from Carl and his mother. Section 453.080.4, RSMo Cum.Supp.2013, states that “[u]pon completion of an adoption, further contact among the parties shall be at the discretion of the adoptive parents.” After consideration of the private interests affected in an adoption proceeding involving a mentally incapacitated adult, we conclude that mentally incapacitated adults have a significant liberty interest in protecting their intact familial ties from interference by a third party.”

Martin v. Allen (In re Adoption of Debrodie), 452 S.W.3d 644 (Mo. Ct. App. 2015)

“While Mary Martin (Mary) testified to a willingness to maintain Carl’s relationship with his mother, she also testified that she did not pursue guardianship of Carl at the time the Callaway County Circuit Court appointed the public administrator as guardian, in part so she would not “have to deal with his parents anymore.” At the time of the final hearing on the Martins’ petition for adoption, the Martins had not visited Carl for nearly two years. Although the Martins resided in Holt’s Summit when they filed the adoption petition, a close distance from Carl who resides in Fulton, at the time of the final hearing the Martins had moved 60 miles south of Kansas City, a considerable distance from Carl and his mother. Section 453.080.4, RSMo Cum.Supp.2013, states that “[u]pon completion of an adoption, further contact among the parties shall be at the discretion of the adoptive parents.” After consideration of the private interests affected in an adoption proceeding involving a mentally incapacitated adult, we conclude that mentally incapacitated adults have a significant liberty interest in protecting their intact familial ties from interference by a third party.”

In re Barker, No. WD 59968 (Mo. Ct. App. Nov. 26, 2002)

“Grandparents continued attending the athletic events but were not permitted to talk to the grandchildren. Parents testified they restricted visitation beginning in December 1998 because Grandparents continually disregarded their concerns about the grandchildren’s health and well-being. Parents had asked Grandparents not to give the grandchildren sweets before dinner, not to allow them to drink Coke, not to use demeaning or racially derogatory language in front of the grandchildren, and not to allow the grandchildren to have contact with another of Gerald’s brothers, Christopher, who had been accused of sexual molestation at a YMCA camp fifteen years earlier. Parents also complained that Grandparents refused to tell them where they were taking the children and refused to keep their dogs restrained, even though the dogs had previously bitten, nipped, and snarled at the children. In response, Grandparents testified they set rules for their own house and did not always comply with Parent’s wishes, some of which they considered “stupid rules.””

State ex Rel. J. D. S. v. Edwards, 574 S.W.2d 405 (Mo. 1978)

“RENDLEN, Judge. Relators J.D.M., the putative father and J.D.S., his illegitimate son, sought prohibition in the Court of Appeals, St. Louis District, to prevent the Judge of the Juvenile Court of St. Louis County from transferring the guardianship and custody of the child to the State Division of Family Services after terminating the parental rights of only the child’s unwed mother. The Court of Appeals issued its writ prohibiting respondent from making such custodial change.”

“The relator-child was born out of wedlock on May 19, 1976, and almost immediately the mother K.L.S., then a minor, executed her consent to the termination of parental rights and a waiver of the necessity of consent to her son’s future adoption.”

“The father states that since the birth of the child, he has repeatedly demanded custody and that “visits between the father and child have continuously been arranged through the Agency since the child’s birth.””

“We now determine the proper standard for application in proceedings convened to determine the substantive rights of putative fathers relative to their children.”

Cull v. Pfeifer, 307 S.W.2d 424 (Mo. 1957)

“There was no averment in plaintiff’s bill either that plaintiff had any interest in the subject matter of the suit other than a possible inheritable interest, or that any proceeding had been instituted or consummated pertaining to a guardianship for Elizabeth. It is apparent, therefore, and there is no contention to the contrary, that plaintiff, in her individual capacity and as the daughter of Elizabeth, had only a possible prospective interest in the property forming the subject matter of the suit; i. e., the possibility of a right to inherit.”

“Furthermore, it appears that an action may be maintained by a next friend or guardian ad litem on behalf of one who, because of weakness of mind short of insanity, is incapable of suing for himself. 44 C.J.S. Insane Persons § 134, p. 292. And an insane person may sue by a next friend or guardian ad litem prior to the appointment of a guardian.”

“We have reached the conclusion, therefore, that where, as in the instant case, a daughter has made the averments we have heretofore set forth, she should be considered as having instituted the suit as the next friend (Tracy v. Sluggett, supra, 232 S.W.2d 930) or guardian ad litem of her mother, and that so considered she could properly institute and prosecute the instant suit.”

Baumgart v. Baumgart, 944 S.W.2d 572 (Mo. Ct. App. 1997)

“Clearly, factors (3) and (4) require the court to consider where the children have been residing over the years prior to the court’s ruling, and any disruption which would result if the children were uprooted and returned to their father’s custody. Indeed, it is some what ironic to note that it is to avoid just such disruption that Missouri originally developed the rule prohibiting a change of custody absent proof of a substantial and continuing change of circumstances.”

“In addition, of course, it is relevant that custody has been in the mother in large part because of the orders of the court. Little evidence was adduced on any of the other factors made relevant by statute or case law, except on the issue of abuse.”

“Because of all of these concerns, we do not believe that the evidence was sufficient to support a change of circumstances which would have justified leaving custody in Mr. Baumgart, nor do we believe the evidence was sufficient to permit a determination as to whether abuse occurred or if so by whom.”

Soehlke v. Soehlke, 398 S.W.3d 10 (Mo. 2013)

“First, Mother claims that she is entitled to a new trial because the trial court failed to appoint a guardian ad litem under section 452.423. This statute provides, in pertinent part: Mother initially asserted four claims of error, but she later abandoned her contention that the custody terms are vague or unworkable. 1.”

“The language of section 452.423.2 is plain and unambiguous: An appointment of a guardian is mandatory only when allegations of child abuse or neglect are raised in one or both parties’ pleadings.”

“However, because of the importance of protecting children from abuse or neglect, “if sufficient evidence [is offered at trial] that, if believed, shows actual abuse or neglect occurred, the court, either upon motion of a party or sua sponte, should order the pleadings amended to conform to the evidence [pursuant to Rule 55.33(b) ] and appoint a guardian ad litem [pursuant to section 452.423.2].””

“In such proceedings, the provisions of section 452.423 are intended to serve the child’s best interest—and only that interest.”

R.W. v. H.P.A. (In re E.R.V.A.), 637 S.W.3d 100 (Mo. Ct. App. 2021)

“The probate court granted letters of guardianship to Petitioners: The probate court denied Petitioners’ request for conservatorship, finding that E.R.V.A. did not have an estate. [B]y a preponderance of the evidence, the court has determined Petitioners overcame the presumption that Parents should serve as natural guardians by showing: Mother is unwilling (no support; does not want to be a primary caregiver), unable (poor parenting skills; substance abuse; mental health), and unfit (substance abuse; disregard for the law; poor parenting skills); Father is unwilling (no support), unable (poor parenting skills; substance abuse; intention to make Mother caregiver in his absence), and unfit (substance abuse; disregard for the law; poor parenting skills). Parents appeal. Parents raise two points on appeal, challenging the constitutionality of section 475.030, RSMo, and arguing the probate court applied the wrong standard of proof. In Point I, Parents argue that section 475.030.4(2), RSMo, violates principles of due process guaranteed by the federal and state constitutions in that “it allows a court to indefinitely sever the parent-child relationship without necessary safeguards.””

In re R.B, 1 S.W.3d 483 (Mo. Ct. App. 1999)

“Many reasons A.P. gives to support her assertion that she is the most suitable guardian relate to matters that go to the weight of the evidence and credibility of the witnesses; matters in which great deference is given to the trial court. Viewed in the light most favorable to the judgment, we note that R.A.B. and B.B. reside in a well kept and attractive home.”

“A.P. has verbally and physically confronted R.A.B. and B.B. at the time of exchange of R.B. for visitation, thus in the presence of R.B. Additionally, A.P. has exhibited extreme agitation because R.B. attended a Catholic church with his paternal grandparents and she has demonstrated hostility toward that church. As summarized by the trial court, A.P. has been openly critical of and hostile towards the paternal grandparents. Appellant has engaged in conduct that interfered with and denied visitation to the paternal grandparents.”

In re M.B.R., 404 S.W.3d 389 (Mo. Ct. App. 2013)

“The trial court found that Mother failed to prove it was in the best interest of Child that the guardianship be terminated. Mother claims this finding is not supported by substantial evidence and is against the weight of the evidence.”

“In its judgment, the trial court found that “Mother is fit, suitable and able to assume the duties of guardianship,” but that “Mother failed to meet her burden of establishing that it is now in [Child’s] best interests to terminate the guardianship.” The trial court’s judgment overruled Mother’s petition to terminate the guardianship and granted Grandparents’ motion for visitation.”

“Section 475.083.2(3) (emphasis added).”

Tipton v. Meyers (In re Estate of R.M.T.), 580 S.W.3d 54 (Mo. Ct. App. 2019)

“”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).”

“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).”

“”[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.””

Moore v. Moore, 645 S.W.3d 705 (Mo. Ct. App. 2022)

“”[C]hallengers to a custody award bear a heavy burden.” White v. White , 616 S.W.3d 373, 380 (Mo. App. W.D. 2020). “This Court will affirm the trial court’s decision as to an award of child custody 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.” “The trial court has broad discretion in child custody matters, and we will affirm its award of custody unless we are firmly convinced that the children’s welfare requires otherwise.” K.T.L. by Next Friend K.L. v. A.G. , No. ED109375, ––– S.W.3d ––––, ––––, 2021 WL 6121845, at *2 (Mo. App. E.D. Dec. 28, 2021) (citations omitted).”

Juvenile v. S.E.W. (In re S.M.W.), No. WD85122 (Mo. Ct. App. Nov. 22, 2022)

“Pursuant to subsection 211.037.2 RSMo the Court finds that placing the child in the father’s custody and/or unsupervised contact between the father and the child is not in the child’s best interest as the father has been determined to be an incapacitated person/disabled person within the meaning of Section 475.010 RSMo and is subject to an adult guardianship in [a separate probate case] as he is unable to make safe decisions for himself. Additionally, the father’s current residence does not allow children.”

“The juvenile court concluded that the child was appropriately placed and that moving the child was not in his best interest. The juvenile court ordered services for father, with the goal of safe and meaningful visitation rather than reunification.”

“We consider “the evidence in the light most favorable to the judgment, and we disregard all contrary inferences.””

State ex Rel. Bird v. Weinstock, 864 S.W.2d 376 (Mo. Ct. App. 1993)

🟥 In re Adoption of C.M.B.R, 332 S.W.3d 793 (Mo. 2011)

Ruckert v. Moore, 317 Mo. 228 (Mo. 1927)

Craig v. Craig, 644 S.W.3d 857 (Mo. Ct. App. 2022)

“In Point III, Husband argues that the trial court misapplied the law in failing to appoint a guardian ad litem (GAL) insofar as it was required to do so by § 452.423.2. We disagree. Section 452.423.2 provides that “[t]he court shall appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged.” This mandatory appointment “is triggered only by an allegation of child abuse expressly stated in a pleading and not by the mere introduction of evidence at trial.””

Statutes (7)

Section 475.045 – Who may be appointed guardian of minor, Mo. Rev. Stat. § 475.045

“1. Except in cases where they fail or refuse to give required security or are adjudged unfit for the duties of guardianship or conservatorship, or waive their rights to be appointed, the following persons, if otherwise qualified, shall be appointed as guardians or conservators of minors:(1) The parent or parents of the minor, except as provided in section 475.030;(2) If any minor over the age of fourteen years has no qualified parent living, a person nominated by the minor, unless the court finds appointment contrary to the best interests of the minor;(3) Where both parents of a minor are dead, any person appointed under this section or section 475.046 by the will of the last surviving parent, who has not been adjudged unfit or incompetent for the duties of guardian or conservator.2.Unfitness of any of the persons mentioned in subsection 1 for the duties of guardianship or conservatorship may be adjudged by the court after due notice and hearing.3. If no appointment is made under subsection 1 of this section, the court shall appoint as guardian or conservator of a minor the most suitable person who is willing to serve and whose appointment serves the best interests of the child to a stable and permanent placement.”

Section 475.050 – Appointment of guardian or conservator of disabled or incapacitated persons – order of priority, Mo. Rev. Stat. § 475.050

“1. Before appointing any other eligible person as guardian of an incapacitated person, or conservator of a disabled person, the court shall consider the suitability of appointing any of the following persons, listed in the order of priority, who appear to be willing to serve: (1) If the incapacitated or disabled person is, at the time of the hearing, able to make and communicate a reasonable choice, any eligible person nominated by the person; (2) Any eligible person nominated in a durable power of attorney executed by the incapacitated or disabled person, or in an instrument in writing signed by the incapacitated or disabled person and by two witnesses who signed at the incapacitated or disabled person’s request, before the inception of the person’s incapacity or disability; (3) The spouse, parents, adult children, adult brothers and sisters and other close adult relatives of the incapacitated or disabled person; (4) Any other eligible person or, with respect to the estate only, any eligible organization or corporation, nominated in a duly probated will of such a spouse or relative. 2. The court shall not appoint an unrelated third party as a guardian or conservator unless there is no relative suitable and willing to serve or if the appointment of a relative or nominee is otherwise contrary to the best interests of the incapacitated or disabled person.”

Section 475.046 – Standby guardian permitted, when – appointment procedure – authority effective, when, Mo. Rev. Stat. § 475.046

“The court shall determine appointment of a standby guardian in accordance with the best interests of the minor or incapacitated person after considering all relevant factors, including: (1) Whether there is a parent other than the custodial parent and, if so, whether the other parent is willing, able, and fit to assume the duties of a parent;(2) The suitability of a person nominated by the minor or incapacitated person if he or she is, at the time of hearing, able to communicate a reasonable choice; and(3) The desirability of providing arrangements for the care, custody, and control of the minor or incapacitated person which shall minimize stress and disruption and avoid his or her placement in foster or similar care pending appointment of a guardian if the custodial parent is adjudicated incapacitated or dies.4. If it appears to the court that a standby guardian should be appointed for a minor or incapacitated person, the court may appoint a standby guardian.5.”

Section 210.841 – Judgment or order, contents – amount of support, presumption, Mo. Rev. Stat. § 210.841

“The custody and guardianship of the child; (3) Visitation privileges with the child; (4) The furnishing of bond or other security for the payment of the judgment; or (5) Any matter in the best interest of the child.”

“The needs of the child; (2) The standard of living and circumstances of the parents; (3)”

“The value of the services contributed by the custodial parent; and (10)”

Section 210.565 – Relatives of child shall be given foster home placement, when – definitions – order of preference – specific findings required, when – sibling placement – age of relative not a factor, when – federal requirements to be followed for placement of Native American children – waiver of certain standards, when – GAL to ascertain child’s wishes, when, Mo. Rev. Stat. § 210.565

“The preference for placement and first consideration for grandparents or preference for placement with other relatives created by this section shall only apply where the court finds that placement with such grandparents or other relatives is not contrary to the best interest of the child considering all circumstances. If the court finds that it is contrary to the best interest of a child to be placed with grandparents or other relatives, the court shall make specific findings on the record detailing the reasons why the best interests of the child necessitate placement of the child with persons other than grandparents or other relatives. 5.”

“The guardian ad litem shall ascertain the child’s wishes and feelings about his or her placement by conducting an interview or interviews with the child, if appropriate based on the child’s age and maturity level, which shall be considered as a factor in placement decisions and recommendations, but shall not supersede the preference for relative placement created by this section or be contrary to the child’s best interests. § 210.565, RSMo Amended by 2022 Mo. Laws, SB 683,s A, eff. 8/28/2022.”

Section 453.030 – Approval of court required – how obtained, consent of child and parent required, when – validity of consent – forms, developed by children’s division, contents – court appointment of attorney, when, Mo. Rev. Stat. § 453.030

“In a case involving a child under fourteen years of age, the guardian ad litem shall ascertain the child’s wishes and feelings about his or her adoption by conducting an interview or interviews with the child, if appropriate based on the child’s age and maturity level, which shall be considered by the court as a factor in determining if the adoption is in the child’s best interests.3.”

Section 453.025 – Appointment of guardian ad litem, when – fee – duties of guardian ad litem, Mo. Rev. Stat. § 453.025

“The guardian ad litem shall:(1) Be the legal advocate for the best interest of the party he is appointed to represent with the power and authority to cross-examine, subpoena witnesses, and offer testimony;(2) Initiate an appeal of any disposition that he determines to be adverse to the interests of the party he represents; and(3) Ascertain the child’s wishes, feelings and attitudes regarding the adoption by interviewing persons with knowledge of the child, and if appropriate, to meet with the child.When the parent is a minor or incompetent, the court shall appoint a guardian ad litem to represent such parent.3.”

Regulation (1)

Section 9 CSR 45-3.040 – Rights of Designated Representatives, Parents, and Guardians, Mo. Code Regs. tit. 9 § 45-3.040

“As set out in section 633.110, RSMo, parents of minor children and youth and legal guardians have the right to approve or refuse supports or placement of their children or wards. (4) Adults who have not been declared legally incapacitated may give their written consent for parents, relatives, or other persons to serve as their designated representative to advocate for and advise, guide and encourage the individual and members of the individual support plan team in developing and implementing individual support plans. Written consent for designated representatives shall include written authorization to disclose protected health information. (A)”

Analysis (1)

New Rulings from Michigan Court of Appeals Regarding Protection of Persons Subject to Guardianship

“The second case, In re Guardianships of ER and GR, Minors, had to do with guardianship of minor children. Docket Nos. 362398 & 362399, 2022 WL 17726409 (Mich Ct App Dec 15, 2022) (unpublished). PT was appointed as guardian of his minor second cousins, ER and GR. The probate court ordered a review of the guardianships.”

“Id at *1. The probate court held a hearing and ordered that PT’s guardianship over ER and GR was terminated. PT appealed.”