                                           In the
                           Missouri Court of Appeals
                                    Western District
 IN THE ESTATE OF R.M.T.,                       )
 MINOR;                                         )
                                                )   WD82184
 BONITA ANN TIPTON,                             )
                                                )   OPINION FILED: June 25, 2019
                  Respondent,                   )
                                                )
 v.                                             )
                                                )
 JOSEPH W. MEYERS,                              )
                                                )
                   Appellant.                   )

               Appeal from the Circuit Court of Caldwell County, Missouri
                          The Honorable Jason A. Kanoy, Judge

 Before Division One: Victor C. Howard, Presiding Judge, Lisa White Hardwick, Judge
                              and Gary D. Witt, Judge


          Appellant Joseph Meyers ("Father") appeals the order of the probate division of the

Circuit Court of Caldwell County, appointing Bonita Tipton ("Grandmother") guardian of

R.M.T ("Child"). On appeal, Father argues that the circuit court erred in determining that

he was unwilling, unable, or unfit to assume the duties of guardianship over Child. We

affirm.
                                             Factual Background

         Child was born on September 24, 2007, to Father and Barbara Tipton ("Mother").

Grandmother is Child's maternal grandmother. In 2017, Mother was granted sole legal and

physical custody of Child and Father was ordered to pay child support ("2017

Modification"). Mother had issues with drugs and at one point had been incarcerated due

to these issues. Child began living with Grandmother in Hamilton, Mo. on February 15,

2018. On April 18, 2018, Grandmother filed a petition seeking to be appointed as guardian

of Child ("Petition"). At the time of the guardianship hearing, Mother was not incarcerated

and resided in Chillicothe, Mo. even though Child was residing with Grandmother. Mother

consented to the appointment. Father filed an answer opposing the appointment.

         The trial was held on September 28, 2018.1 Grandmother testified that Father had

not had visitation with Child since August 14, 2016. At that time, Child had stayed with

Father for approximately six weeks. Grandmother alleged that when she and Mother met

Father to pick-up Child, Father's wife ("Step-Mother") grabbed Child by the arm, which

Child had recently broken, spun Child by the arm, and told her to get back into Father's

vehicle. Child broke free and returned to Grandmother's vehicle and the three drove to the

police station and Mother and Child went in to file a report. Grandmother alleged that

Child had shared that she was rarely allowed to call home and that, when she did, Step-



          1
            The transcript of the trial notes 44 times that the testimony or question is "indiscernible." At times this
occurs during testimony relevant to this Court's review. No party challenges the sufficiency of the transcript or our
ability to review the issues presented based on these transcript issues. The trial court needs to take appropriate
measures to ensure that future trials are recorded with sufficient clarity to allow a full transcript to be prepared so
that a new trial is not required. See A.J.M. v. Greene County Juvenile Office, 158 S.W.3d 878 (Mo. App. S.D.
2005).

                                                           2
Mother was always present listening. Child was allegedly forced to eat spilled food off the

floor and at one point had been locked out of the house. Father denied any knowledge of

these incidents. Grandmother testified that she felt that Father was unfit because he did

not protect Child from Step-Mother.

       Grandmother also testified that between the summer of 2016 and the 2017

Modification, Father was supposed to have visitation every third weekend of the month but

he failed to exercise this right. Following the 2017 Modification, visitation was dependent

upon the agreement of the parties but Father did not attempt any visitation until two weeks

before the hearing on the guardianship.         Father and Child spoke on "Facebook or

messaging" and on one occasion arranged for him to come visit but ultimately Father did

not come nor did he communicate why he did not attend. Child was emotionally upset by

him failing to show up.

       Father had been paying child support to Mother although it is unclear from the legal

file when that began. Father testified that he was not aware that Child was residing with

Grandmother and that, despite attempts to locate her, he only became aware of her

whereabouts after he was served with the Petition. Father maintained that the 2016 visit

with Child had been good and there were no issues between Child and Step-Mother. Father

alleged that at the 2017 Modification hearing he "didn't have a lawyer. . . . I was not allowed

to represent myself to find out anything or ask any questions or nothing. I was told that I

can't say anything." Father also justified his failure to attend the recent visitation by saying

"How do I know when I come up here to see her if that [sic] I'm going to be driving all the

way up here and no one shows up?"

                                               3
         Step-Mother also testified that Mother was the aggressor in the 2016 altercation.

Further, Step-Mother testified that she and Child "get along . . . just great."

         Mother did not attend the hearing.

         Following the hearing, the court granted Grandmother guardianship finding in

relevant part:

         Court finds natural mother has consented to appointment of guardian. Court
         finds natural father has abandoned minor child and is, therefore, unwilling to
         provide care for minor child. Court, therefore, finds minor child in need of
         guardian. Court finds petitioner is fit and proper individual to serve as
         guardian for child.

This appeal followed.

                                     Standard of Review

         "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).

         A claim that there is no substantial evidence to support the judgment or that
         the judgment is against the weight of the evidence necessarily involves
         review of the trial court's factual determinations, and a court will only
         overturn a judgment under these fact-based standards of review when the
         court has a firm belief that the judgment is wrong. Pearson v. Koster, 367
         S.W.3d 36, 43 (Mo. banc 2012). Due regard is given to the trial court to
         judge the credibility of the witnesses. In re Estate of A.T., 327 S.W.3d 1, 2
         (Mo. App. E.D. 2010).

In re L.M., 488 S.W.3d 210, 214 (Mo. App. E.D. 2016). Questions of law are decided de

novo. Id. "When presented with an issue of mixed questions of law and fact, we defer to




                                               4
the trial court's factual findings so long as they are supported by competent, substantial

evidence, but review de novo the application of the law to those facts." Id.

                                         Discussion

       Father's sole point on appeal is that the circuit court erred in awarding Grandmother

guardianship of Child because there was "no evidence" that Father was unwilling, unable,

or unfit to have custody over Child.

       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).

That presumption, however, is overcome if there is sufficient evidence presented that the

parent is unfit, unwilling, or unable to take charge of the child. In the Matter of J.D.D.,

450 S.W.3d 836, 841 (Mo. App. E.D. 2014). "[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." In re L.M., 488 S.W.3d at 215 (citing In re Estate of A.T., 327 S.W.3d at 2)). Third-

parties do not stand on equal footing to parents, and the presumption that a parent should

be the custodian remains until they have been demonstrated to be unfit, unwilling, or

unable. Id. This is true even when the court makes a determination that granting

guardianship to a close relative is in the best interest of the child. See Cotton v. Wise, 977

S.W.2d 263 (Mo. banc 1998).

       In this case, the court determined was that Father was "unwilling" to act as guardian

because he had already "abandoned" Child. "In the context of Missouri's guardianship

statutes, the terms "unwilling" and "unable" are not well defined." In re Matter of T.A.P.,

953 S.W.2d 638, 642 (Mo. App. S.D. 1997). As the Court discussed in In re T.A.P.:

                                              5
         One commentator notes that the terms unwilling and unable "essentially refer
         to a species of abandonment of the child." 4B JOHN A. BORRON, JR.,
         MISSOURI PRACTICE, PROBATE AND SURROGATE LAWS MANUAL 20 (1995).
         Where termination of parental rights is at issue, Missouri courts describe
         abandonment as: (1) a parent voluntarily and intentionally relinquishing the
         custody of the child to someone else with the intent to never claim parental
         rights, nor perform parental duties; or (2) a parent withholding intentionally
         from the child, without a just cause or excuse, his or her presence, care, love,
         and protection, as well as maintenance and the opportunity for displaying
         filial affection. H.W.S. v. C.T., 827 S.W.2d 237, 239–240 (Mo. App. 1992);
         S.C.H. v. C.W.H., 587 S.W.2d 945, 947 (Mo. App. 1979).

Id.

         Giving deference to the court's factual findings, the evidence at the guardianship

hearing showed that Father had not exercised any visitation with Child in the two years

prior to the guardianship hearing. Although Father testified that he was unaware of Child's

location or that she was living with Grandmother so could not exercise visitation, the court

was free to disbelieve this testimony. In re L.M., 488 S.W.3d at 214 ("Due regard is given

to the trial court to judge the credibility of the witnesses."). Child did not began living with

Grandmother until 2018 and Father offered no explanation why he was not aware of Child's

location prior to her moving in with Grandmother. Further, in 2017, Mother was granted

sole physical and legal custody.2 Father was granted visitation rights but failed to exercise

them. When Father did finally arrange for a visit with Child, just two weeks before the



         2
             See In re L.M., 488 S.W.3d at 218. In In re L.M., great-uncle and great-aunt sought guardianship over the
child. The court noted that, only nine months prior to the request for guardianship, child's father had been granted
sole physical custody and the petitioners had consented to that judgment. The Court noted that, although the
guardianship statutes do not themselves discuss the change in circumstances necessary for a custody modification
there is an interplay between guardianship and custody. The Court in In re L.M. found that the recent custody
judgment served as "further support" that father should remain as child's custodian rather than giving guardianship
to aunt and uncle. Id. "The rationale for requiring a substantial change in the circumstances of the child or the
custodian, whether parent or third party, includes the desire to maintain a stable nurturing environment for the child.
. . ." Id. (quoting Searcy v. Seedorff, 8 S.W.3d 113, 117 (Mo. banc 1999)).

                                                           6
guardianship hearing, Father failed to appear. Father's only justification for failing to

attend the visitation was to state that he had no way of knowing whether Child would have

been there.   There was also evidence that Father and Child communicated through

"Facebook or messaging" but Father fails to explain why he could not have learned Child's

location during these communications.

       Certainly there was some evidence to support a finding that Father had not

abandoned his daughter. He was paying child support at the time of the hearing and had

been doing so since at least 2017. He also opposed the guardianship petition and stated

that he desired to have custody of Child. However, the determination as to whether a parent

is unfit, unable, or unwilling is "based not only on present circumstances, but on the natural

parent's history of dealing with the [child]." Cotton, 977 S.W.2d at 265. Father had not

seen Child since 2016 and offered little justification for such a lapse. Most telling was that

only two weeks before trial Father failed to show for what would have been his first

visitation with Child in over two years. His testimony regarding his behavior showed little

concern as to his behavior's effect on Child. Even given a presumption of parental custody,

we cannot say that there was insufficient evidence to support the circuit court's findings.

Despite Father's statement that he was willing to have custody, Grandmother put forth

sufficient evidence to support the circuit court's finding that Father had abandoned Child

in failing to see her in over two years and was unwilling or unable to act as Child's

custodian.




                                              7
                                       Conclusion

       For the reasons stated above, the circuit court did not err in finding that there was

sufficient evidence to demonstrate Father was unwilling or unable to take custody of Child.

As such, the trial court did not err in granting Grandmother's Petition. Judgment affirmed.



                                          __________________________________
                                          Gary D. Witt, Judge

All concur




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