Opinion
No. ED 88382
March 6, 2007
Appeal from the Circuit Court of Jefferson County Hon. Darrell E. Missey.
Craig G. Kallen III, Clayton, MO, for appellant. William D. Dodso, Imperial, MO. Theordore R. Allen, Jr, Hillboro, MO, for respondent.
Before: AHRENS, P.J., HOFF, J. AND BAKER, J .
Paul Warren ("father") appeals the consolidated judgments of the trial court denying his motion to modify and granting the petition for guardianship of A.S.W., a minor child . Father argues that the judgment denying his motion to modify was in contravention of the mandate of the Missouri Supreme Court in In re A.S.W., 137 S.W.3d 448 (Mo. banc 2004) ("A.S.W. I"), and the judgment was not supported by substantial evidence. Father also claims the court erroneously declared and applied the law in denying his motion to modify. Further, father claims the court erred in granting the petition of Patricia Westermann and Andrew M. Westermann (collectively referred to herein as "the Westermanns") for guardianship of A.S.W. because such judgment was against the weight of the evidence. We transfer the case to the Missouri Supreme Court.
Father initially filed separate appeals; however, the appeals were consolidated by order of this court.
The procedural and factual history of this case is extensive. In the interest of clarity and brevity, we will recite the procedural facts as they relate to the case and discuss additional facts and evidence as it relates to the individual points in our analysis of those points. A.S.W. was born in 1998. Father is A.S.W.'s biological father; however, he suffered a brain injury after a fall at work in 2000 and was admitted to a rehabilitation clinic for therapy. In 2001, the juvenile officer of Jefferson County, Missouri ("juvenile officer") filed a petition alleging that A.S.W. was in need of care and treatment based on certain allegations of neglect by A.S.W.'s mother. The petition also stated that "father of the juvenile is inappropriate for placement due to disability." The court entered a consent judgment, order, and finding of jurisdiction, placing A.S.W. in the custody of the Division of Family Services ("DFS"). In 2002, a petition to terminate the parental rights of both mother and father was filed, and an order terminating the parental rights of mother and father was subsequently entered. Father filed a motion for new trial and alternative motion to amend the judgment terminating his rights which was denied. Father appealed, and the Missouri Supreme Court ultimately reversed the termination of his parental rights in A.S.W. I. After the Supreme Court's reversal of the termination judgment, father filed a petition for a writ of habeas corpus and alternative motion to modify legal and physical custody of A.S.W. seeking sole custody. Additionally, in 2006, the Westermanns, foster parents to A.S.W., filed a petition for appointment of guardianship of A.S.W. and sought to change his name. The trial court granted the petition for guardianship and denied father's motion to modify custody. Father's subsequent motions for new trial were denied, and it is these judgments that are the focus of father's present appeal.
Mother is not a party to this appeal, and as such, we need not discuss the allegations as they relate to her.
Father presents four points on appeal. Points one through three concern the judgment of the trial court denying his motion to modify custody of A.S.W. Point four addresses the judgment granting the Westermanns' petition for guardianship.
We affirm the judgment of the juvenile court unless it is not supported by the evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Anderson v. Jackson, 181 S.W.3d 172, 176 (Mo.App. 2005); (citing Suffian v. Usher, 19 S.W.3d 130, 135-36 (Mo. banc 2000)). In custody proceedings, the welfare of the child is the primary and overriding consideration. Id. at 175. The rights and claims of the natural parent must be of secondary importance.Id. The court is vested with wide discretion in considering the best interests of the child on a motion for change of custody. Id. at 177. We defer to the findings of the trial court unless they evidence an abuse of discretion. Id.
In his first point, father claims that the trial court erred in denying his motion to modify because the court failed to follow the mandate of the Missouri Supreme Court from A.S.W. I. Father argues that the trial court, in denying his request for sole legal and physical custody of A.S.W. "constructively" denied him rights to his child in contravention of the mandate of the Supreme Court.
Father correctly notes, and the juvenile officer and the Westermanns agree that trial court was constitutionally bound to follow the mandate of the Missouri Supreme Court from A.S.W. I. In re Marriage of Hoskins, 164 S.W.3d 188, 193 (Mo.App. 2005); (citing MO. CONST. art. V, section 2). However, father appears to erroneously construe the holding of the Supreme Court to require the trial court to grant him sole legal and physical custody of A.S.W.
In A.S.W. I, the Missouri Supreme Court reversed the termination of father's parental rights on the basis that the state failed to present substantial evidence that additional services would not facilitate A.S.W.'s return to father within a certain period of time. 137 S.W.3d at 454. The court specifically focused on the findings of the trial court in terminating father's parental rights, and held that the findings were erroneous in their failure to address the potential for future efforts to assist father in parenting and in failing to consider the success or failure of such efforts.Id. Because the court failed to include such issues in its findings, the Supreme Court concluded that the findings did not constitute clear, cogent, and convincing evidence to support the termination of father's parental rights. Id.
The opinion of the Supreme Court in A.S.W. I does not require that father be granted sole legal and physical custody. Instead, it simply requires consideration of father's potential need for assistance in parenting A.S.W. Here, it is clear the trial court considered such evidence. The court found that "at this time [father] is still not able to care for [A.S.W.] under the current circumstances." In so finding, the trial court noted the testimony from James Powers, a clinical psychologist, that father should not independently care for a child, and the implication from such testimony that father would need assistance from relatives. The trial court acknowledged that father currently lived with his sister, but found that his sister did not provide the level of help needed. The evidence was that father's sister worked through the night and slept during the day, and father's sister testified that she did not think he needed supervision. Father himself testified that he did not need her supervision. Additionally, the court noted father's announcement of his intention to live on his own. These factors all relate to the potential for assistance in parenting and the success or failure of the assistance, and were supported by the evidence before the court. As a result, the issue was clearly considered by the trial court in its decision. In making findings specifically addressing the potential need for assistance and the success or failure of such assistance, we believe the trial court complied with the mandate of the Supreme Court from A.S.W. I. As such, we would deny father's first point on appeal.
The court states that it had received the report of Dr. Powers dated January 6, 2005, and this report indicated that the results of his current evaluation were similar to those obtained in 2002 and the recommendations made at that time continued to be appropriate. While we have not been provided with the January 6, 2005 report from Dr. Powers, we have reviewed the transcript of Dr. Powers' testimony in 2002, which supports the conclusion of the trial court.
In his second point, father claims the trial court erred in denying his motion to modify because the jurisdiction of the juvenile court was no longer proper. Father claims he had fully recovered from his brain injury, and there was no evidence that he would impair A.S.W.'s emotional or physical development, and as such, no basis for the juvenile court's jurisdiction remained.
In 2001, the juvenile court, by consent judgment, found that it had jurisdiction over A.S.W. based upon a finding of neglect and abuse as pled by the juvenile officer and placed him in the custody of DFS. Pursuant to section 211.151 RSMo (2000), the custody determination was subject to modification on the court's own motion, or as here, upon the petition of father as A.S.W.'s parent. The parties do not dispute that the juvenile court's assumption of jurisdiction over A.S.W. in its 2001 judgment was valid. In fact, the parties consented to the allegations in the petition of the juvenile officer seeking jurisdiction. Pursuant to section 211.151, and father's own motion to modify, the juvenile court had continuing jurisdiction to modify the custody determination made in 2001. As a result, we would deny father's second point.
In his third point on appeal, father argues that the court erred in denying him custody of A.S.W. based solely on section 211.038 RSMo (Cum. Supp. 2004) because the statute did not take effect until after father's motion to modify was filed.
Pursuant to section 211.038, a child shall not be reunited with a parent or placed in the home where the parent resides if the parent has been found guilty of certain felony offenses where a child was the victim. In 1986, father pleaded guilty to two counts of sexual abuse in the first degree, one count of sodomy, and one count of rape of father's nieces, then ages five and six. The crimes of sexual abuse and sodomy are included in the list of offenses in section 211.038.
While the court did cite section 211.038 in its judgment denying father's motion to modify, the court did not solely rely upon the statute in denying father's motion to modify custody. As previously noted, the overriding consideration in determining custody is the welfare of the child. Anderson, 181 S.W.3d 172, 175 (Mo.App. 2005). Here, the court made significant findings with respect to the welfare of A.S.W. in its judgment, in addition to its comment concerning section 211.038 and father's prior convictions. The court found that father was unfit and unable to assume the duties of guardianship. The court further found that emotional harm would come to A.S.W. if he was removed from his current home. The court found that father's physical and mental condition rendered him unable to address the specific needs of A.S.W. that would result from such emotional harm.
These findings were based upon substantial evidence in the record before us. There was significant testimony from several clinical professionals, as well as evidence from the previous proceedings of which the court took judicial notice. As previously stated, the court recited the conclusion of Dr. Powers that his current evaluation was similar to his previous observations, and his recommendations made at that time continued to be appropriate. In the termination proceeding, Dr. Powers testified that father suffered from a cognitive disorder that made it inappropriate for him to independently care for a child. He had serious questions regarding A.S.W.'s safety if father were given primary responsibility for A.S.W. Dr. Powers stated that father's condition was permanent, and while there may be small improvements with time, the overall condition would remain constant. The conclusions of Dr. Powers were echoed in the report of Michael Armour, Ph.D., a licensed psychologist who evaluated father pursuant to the efforts made by the court at reunification after the Supreme Court's reversal of the termination of father's rights in A.S.W. I. Dr. Armour concluded that father was "unrealistic and vague" as to how he would care for A.S.W. In his report, Dr. Armour also stated that he believed father would have "significant problems" caring for A.S.W. because of his cognitive deficits, and father would need assistance if awarded physical custody of A.S.W.
Additionally there was significant testimony from father himself. When questioned about what typical problems he expected to encounter as A.S.W. grows up, father responded, "[n]one." He testified that he believed at eight years old A.S.W. would be in the fifth grade. Patricia Westermann testified that A.S.W. had actually only just completed the second grade. Father was asked what he would be expected to do in the way of disciplining A.S.W., and he responded that he would make sure A.S.W. had his shots, was enrolled in school, and that he would "buy him anything he needs or anything he wants." With respect to the accommodations for A.S.W. in father's home, although father testified that there was a separate bedroom in his sister's home for A.S.W., there was evidence that this room was used by his sister's granddaughter on the weekends. Additionally, father's sister testified that she believed father's judgment was good when he was with her; however, father declared his intention to move out of his sister's home and find a home of his own for himself and A.S.W.
Moreover, testimony was submitted from Kimberly Steinmann, a counselor seeing A.S.W., and Patricia Westermann, with whom A.S.W. resided, regarding A.S.W.'s anxiety related to his visitation with father. Both Steinmann and Patricia testified that immediately after the visit with father in 2005, A.S.W. began suffering from nightmares and his behavior changed. He began to have problems in school and difficulty going to bed. Steinmann opined that A.S.W. should remain with the Westermanns because he now sees them as his parents. While she was not certain that the anxiety exhibited by A.S.W. was related to father, she testified that A.S.W. had not exhibited these reactions to meeting other new people. Additionally, Patricia testified that the nightmares and behavior issues began immediately following A.S.W.'s visit with father.
Based upon the foregoing, the trial court's conclusion that emotional harm would come to A.S.W. if removed from the Westermanns' home and the finding that father was unable to care meet the specific needs of A.S.W. resulting from that emotional harm, as well as the finding that father was still not able to care for A.S.W. under the current circumstances were all supported by substantial evidence. We would conclude that these findings serve as sufficient basis, regardless of the application of section 211.038 to deny father's motion to modify custody.
However, while the evidence concerning father's abilities and the welfare of A.S.W. could serve as an independent basis to support the denial of father's motion to modify, the trial court appears to have relied on the application of section 211.038 as well. The court specifically included language in its judgment citing section 211.038 as a bar to the court's discretion to place A.S.W. with father. Additionally, the court concluded that it was unable to reunify A.S.W. with father based upon the statute. As a result of this language, it appears as though the court did apply section 211.038 in the present case. Therefore, we must consider whether retroactive application of section 211.038 was proper.
The parties do not dispute that section 211.038 went into effect after the filing of father's motion to modify. The juvenile officer argues that the statute should apply retroactively, and there is merit to this claim. In its discussion of section 211.038 in the judgment, the trial court cited In re T.M.E., 169 S.W.3d 581, 589 (Mo.App. 2005), in support of its conclusion that it was without discretion to place A.S.W. in father's custody because of his previous convictions. InT.M.E., the court was faced with the appeal of a termination of parental rights. In granting the petition to terminate parental rights, the trial court noted that the terminations were "reinforced" by the public policy underlying section 211.038. Id. at 583. The statute had been enacted after the petition to terminate the parental rights was filed.Id. On appeal, the court cited the trial court's reliance on section 211.038 with approval in its discussion of the propriety of the termination. Id. at 586. Additionally, the court of appeals noted that the court was without discretion to reunite the mother and father with the child because they had been convicted of offenses precluding reunification pursuant to section 211.038. Id. at 589. The court affirmed the judgment terminating the parental rights. Id. at 591.
We believe the T.M.E. court's retroactive application of section 211.038 in its analysis was correct, and we would conclude that in the present case the court properly applied section 211.038 in its judgment denying father's motion to modify. Moreover, we believe the evidence supported the court's judgment regardless of the application of section 211.038. However, because of the general interest and importance of the question of whether section 211.038 does apply retroactively, we transfer this case to the Missouri Supreme Court.
In his fourth and final point on appeal, father claims the trial court erred in granting the petition for guardianship because such judgment was against the weight of the evidence. Specifically, father argues that there was no evidence to show that he was unfit, unwilling, or unable to care for A.S.W., or that A.S.W. would suffer emotional or physical harm if placed in father's custody.
As discussed above in great detail, there was significant evidence to support the court's conclusions regarding father's ability to care for A.S.W., particularly to deal with the special emotional needs A.S.W. would have if he were to be removed from his current home. Moreover, there was substantial evidence that A.S.W. was thriving in his current home. Patricia Westermann testified that A.S.W. was a straight-A student and had received several awards at school for his performance. She stated that he enjoyed spending time with his family and playing sports. The Westermanns attended A.S.W.'s soccer and baseball games. She said they have a very close relationship, and A.S.W. was a "happy kid," in Patricia's opinion.
Based upon the evidence discussed in our analysis of point three on appeal concerning father's ability to care for A.S.W. and evidence concerning A.S.W.'s welfare and best interests, we would conclude that the trial court did not err in granting the Westermanns' petition for guardianship. Thus, we would deny father's final point on appeal.
We would affirm the judgment of the trial court as discussed above; however, because of the general interest and importance of the issue of whether section 211.038 applies retroactively, this case is transferred to the Missouri Supreme Court pursuant to Rule 83.02.
Mary K. Hoff, J., concurs.
Nannette A. Baker, J., concurs.