K.S.H. ex rel. M.S.H. v. C.K.
K.S.H. ex rel. M.S.H. v. C.K.
Opinion of the Court
C.K. (“Mother”) appeals the “Judgment of Paternity, Child Custody and Support” awarding sole legal custody of her daughter, K.S.H., to third-party intervenor, R.W.H. (“Grandmother”). We affirm the judgment of the trial court.
Factual and Procedural History
K.S.H. was born in 2001 to Mother and M.S.H. (“Father”). On March 2, 2009,
On February 16, 2010, Grandmother— the paternal grandmother of K.S.H. — filed her “Motion for Leave of Court to Intervene as Third-Party Petitioner for Purposes of Seeking Custody of Minor Child.” A bench trial was held on January 18, 2011 and February 9, 2011. The following evidence was adduced at trial and is recited consistent with our standard of review — in the light most favorable to the judgment. See In re R.A.D. ex rel. T.L.D., 348 S.W.3d 778, 780 (Mo.App. S.D. 2011).
Since KS.H.’s birth, Mother has lived in six different places but since November 2008, she has lived in the same place with her boyfriend, D.W. In addition to K.S.H., Mother’s daughter with D.W., and another son, also lived with them. Mother has one other son who lives with his father. K.S.H. has a strong relationship with her siblings, with D.W., and with her maternal grandmother.
Father has not had a strong relationship with K.S.H., only asking for contact when K.S.H. was six or seven years old; he did not ask for custody during the bench trial.
In June 2008, the Nixa Police Department contacted Mother regarding an incident where K.S.H. and her brother were the subjects of a Christian County Children’s Services investigation — the two children were not properly supervised by an adult. Mother had left K.S.H. and her younger son in the maternal grandmother’s care while Mother went to work. The three-year-old son was observed running down the street with no adult present. K.S.H. and another young girl were at the same time observed riding their bikes along the same street.
In November 2008, Mother was arrested and charged with driving while intoxicated, pled guilty, and lost her driver’s license for one year. In 2004, Mother was also charged with, and convicted of, a crime in conjunction with her assault of a Springfield police officer.
In February 2009, after K.S.H. would not stay in bed, Mother spanked her with a plastic clothes hanger, leaving bruises and marks on KS.H.’s arms. On February 4, 2009, a school nurse noticed the bruises and red welts on KS.H.’s arms and made a hotline call to the Division of Family Services.
In April 2009, Mother took K.S.H. to a dentist for an abscessed tooth. Subsequently, a disagreement between Mother and Grandmother ensued concerning the treatment or lack of treatment of KS.H.’s dental care. Thereafter, Mother requested KS.H.’s dental records from the dentist because she would be taking K.S.H. to a different dentist. K.S.H. did not see another dentist until June 17, 2010. On that date, K.S.H. was diagnosed with six cavities. Despite complaints from K.S.H. that her teeth were hurting, and disregarding attempts by Grandmother to convince
The GAL testified that when she visited Mother’s home, she observed Mother’s son alone in the house in a playpen while Mother was mowing the lawn. There were pieces of dog food stuck to the child’s diaper and in the playpen. In K.S.H.’s room, the GAL observed adult clothing everywhere, but no children’s clothing was readily apparent. There was nothing in the room at that time to indicate it was a child’s room — no toys, nothing on the walls.
The GAL explained K.S.H. made it clear she wanted to live with her Mother. K.S.H. told the GAL on numerous occasions she wanted to be with her Mother without any questioning from the GAL on that issue. The GAL also noted that K.S.H. did well in school despite the chaos in her life, but she had deep concerns about KS.H.’s ability to form attachments and ability to function “under the weight of the responsibility that’s been placed on [K.S.H.].”
The GAL testified that the future for K.S.H. was “so at risk” that she did not believe it was appropriate for Mother to have custody of K.S.H., and that the best interest of K.S.H. required that Grandmother have custody. The GAL was especially concerned about Mother’s attempts to destroy the relationship between K.S.H. and Grandmother. There was also no evidence of K.S.H. playing with friends or having friends to her house. However, the GAL noted that K.S.H. loved her mother and it was important for K.S.H. to have a relationship with Mother.
K.S.H. began seeing Tammy Boggess (“Boggess”), a licensed clinical social worker, on October 8, 2010. Boggess described K.S.H. as a “vivacious kind of girl ... very engaging ... who likes to talk.” Boggess testified that there were problems with scheduling K.S.H. for her appointments. On the first visit, Mother dropped K.S.H. off and asked if she could run some errands. Mother was told that the session would end at “20 after the hour,” but Mother did not return until thirty-five minutes after the session was over. K.S.H. became sad, upset and tearful and asked to call her Mother to see where she was. Thereafter, Boggess and her office manager had a difficult time scheduling appointments with Mother and only saw K.S.H. once in October, once in November, and twice in December. A court order was then entered whereby Grandmother brought K.S.H. to therapy. Visits were fairly consistent thereafter with K.S.H. being on time as scheduled for her weekly visits.
Boggess testified that when the sessions began, K.S.H. was excited and would readily talk, even in sessions with Grandmother. However, that changed quickly, in Boggess’ opinion, when K.S.H. became
Boggess testified K.S.H. expressed concern about her lack of friends at school, she felt lonely, and that it was because “they are all liars.” K.S.H. told Boggess she would love to have someone spend the night, but her Mother would not allow it. K.S.H. never had the opportunity to sleep over at anyone’s house other than family. K.S.H. also had concerns regarding lack of clothing at her Mother’s house as her Mother would forget to do laundry. Most of her clothing was at her maternal grandmother’s house. K.S.H. indicated she did not have many toys at her Mother’s house and played a lot with her younger brother’s toys. She would play on the computer mostly at Mother’s house. As to Christmas presents, she indicated Christmas 2010, she only got a lipstick and eye shadow from Mother, but that her younger brother got “like nine presents and more from Santa.” She did receive presents from both grandmothers and other family members.
Boggess also testified K.S.H. never initiated or indicated she wanted to go over to Boggess’ office play area, which is highly unusual for a nine-year-old girl. Boggess stated this was of some concern as it might “indicate some attachment issues, some ability to kind of free herself up as a child and explore, do the natural exploration.” Boggess testified that K.S.H. was despondent during the summer as she was not home with Mother, and loved the school year best as “she knows where she is going to be.” During the summer, K.S.H. indicated she was “everywhere” with “everyone” and missed time with her Mother, D.W., and brother. Ms. Boggess also testified that Mother’s lack of interaction with K.S.H. on a day-to-day basis was indicative or suggestive of a dismissive or avoidant parent disorder, manifested in a parent who is not in tune with or interacting with a child to the extent that the needs of the child are unmet. Boggess noted that children who are raised by a parent with this disorder may develop depression, poor social skills, and serious behavior issues.
Boggess testified that if K.S.H. remained in Mother’s custody, that KS.H.’s issues “would become bigger and more intense and ... create more problems within her daily life and lead her into adulthood without the healthy skills, to deal with things and unhealthy ways of interacting with people.”
The trial court found that Grandmother was a stable, loving influence for K.S.H., and there was no indication that she had manipulated K.S.H. emotionally or that she had discussed this proceeding with K.S.H. The trial court concluded that Grandmother should have sole legal custody as the evidence “clearly demonstrated” that Mother and Grandmother could not work together as mutual decision makers on behalf of K.S.H. The trial court awarded sole legal and physical custody of K.S.H. to Grandmother, pursuant to a parenting schedule proposed by the GAL, and did not order any payment of child support.
This appeal followed. Mother alleges the trial court’s statutorily required findings as set forth in section 452.375.5
Standard of Review
This Court will affirm a trial court’s 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. In re R.A.D., 348 S.W.3d at 780. In reviewing the judgment of the trial court, we defer to the trial court’s credibility determinations and view the evidence and reasonable inferences drawn therefrom in the light most favorable to the judgment. Id. Furthermore, the trial court is given broad discretion in child custody matters, and its decision will be upheld unless we are firmly convinced the welfare and best interest of the child requires otherwise. Id.
Analysis
First, Mother argues the trial court erred in awarding custody of K.S.H. to
Mother next contends the trial court erred in awarding custody to Grandmother because the judgment was not based on substantial evidence to support a finding that Mother was unfit, unwilling or unable to be a proper custodian to K.S.H., or that there were any special or extraordinary circumstances in which the welfare of K.S.H. required her custody be given to Grandmother in accordance with section 452.375.5(5)(a). We disagree.
“We presume parental custody is in a minor child’s best interests.” Young v. Young, 14 S.W.3d 261, 264 (Mo.App. W.D. 2000). We emphasize that this presumption does not put non-parents on equal footing with parents in terms of a custody issue. Rebutting this presumption requires that the third party seeking custody carry the burden of showing either that each parent is unfit, unsuitable, or unable to have custody, or that the welfare of the child requires third-party custody. L.T.C. ex rel. Collins v. Reed, 168 S.W.3d 142, 146 (Mo.App. S.D. 2005); § 452.375.5(5)(a). “We have interpreted ‘welfare of the child’ to mean that a special, or extraordinary, reason or circumstance can make third-party custody in the child’s best interests.” Young, 14 S.W.3d at 264.
Here, the trial court found that the welfare of K.S.H. required, and it was in her best interest, that Grandmother be awarded custody.
As outlined above, there was evidence of physical abuse, emotional abuse, a chaotic home environment, neglect of health needs, the lack of a healthy parent-child relationship, emotional manipulation, and consistent poor judgment by Mother. Under these circumstances, we cannot say that the trial court was wrong in finding the welfare of K.S.H. required an award of third-party custody to Grandmother. The totality of these circumstances would, in our view, constitute extraordinary circumstances sufficient to allow the trial court to
The judgment of the trial court is affirmed.
. This case was assigned for trial before the Honorable Scott Tinsley, a commissioner of the Family Court division of the circuit court. The judgment, which adopted Commissioner Tinsley’s recommended findings and judgment, was executed by associate circuit judge Mark A. Powell on March 7, 2011. Commissioner Tinsley and Judge Powell will be referred to collectively as "the trial court."
. Father was physically present at trial, pro se, but presented no evidence, nor did he testify.
. Father did not appeal the trial court’s decision and is not a party to this appeal.
. All references to section 452.375 are to RSMo Cum.Supp.2005, unless otherwise indicated. All rule references are to Missouri Court Rules (2011).
. The trial court’s opinion specifically indicated such a finding by italicizing that part of section 452.375.5(5)(a) in the judgment. We note Mother does not allege any error with the trial court's best-interest findings.
Reference
- Full Case Name
- In the Matter of: K.S.H., by Next Friend and M.S.H., individually, Plaintiffs/Respondents v. C.K., and R.W.H., Intervenor/Respondent
- Cited By
- 3 cases
- Status
- Published