Blog

Factual Background:

Child lived primarily with Appellant for the first four months of life. Appellant was a friend of Mother and dated Mother’s father for ten years. Mother saw Child only sporadically due to drug use.  At four months old, Appellant took Child to the doctor who determined Child was born with drugs in his system.  Appellant then filed a petition for guardianship, with Mother’s consent, to avoid having Child enter foster care.  Appellant was appointed as Child’s guardian in February of 2009.

In September of 2009, Father and his mother, Respondent, went to visit Child.  Respondent learned for the first time that Appellant was Child’s guardian.  Father then filed a motion to terminate the guardianship and determine paternity.  In December of 2010, Father was declared to be Child’s father.  In July of 2011, Appellant’s guardianship was set aside on the grounds that Father was not properly served for the initial guardianship.  Appellant and Respondent then both filed petitions for guardianship of Child.  Father was incarcerated at the time and did not file a petition.

The Children’s Division performed a home study of Appellant’s home and found “several concerns” that would prevent them from becoming foster parents.  Trial was held in January of 2012.

Adair County Circuit Court, Swaim, J., Held:

Respondent was awarded guardianship of Child.  Appellant filed a motion for visitation and for rehearing that was denied.  Appellant appealed.

Court of Appeals, Hardwick, J., Held:

Affirmed.  Appellant argued the trial court failed to consider Child’s best interests because it did not discuss or apply the best interest factors in Section 452.375.2.  However, the court has no duty to make written findings.  A request for findings must be made on the record before the introduction of evidence or at a later time with the court’s permission.  Further, 452.375.2 applies to custody determinations in dissolution of marriage, not guardianship proceedings.  Instead, stability and permanency are the focus of a best interest analysis in a guardianship proceeding.  This analysis favored placement with Respondent.

Further, Appellant argued the court gave “undue weight” to the biological relationship between Respondent and Child.  However, biological relationship is a minor issue where preference only occurs when all other things are equal.  Based on the Children’s Division studies, Respondent’s home was a better choice than Appellant’s home, so biological relationship did not need to be considered.