In Re: E.R.V.A. Minor
Appeal for the Circuit Court of DeKalb County to Missouri Court of Appeals – Western District
WD84222
Opinion Filed March 31, 2021
Trial Court Ruling Affirmed
A.M.A. (hereinafter “Mother”) and H.P.A. (hereinafter “Father”) are the parents of a young child, E.R.V.A. Father has a long criminal history and has been periodically incarcerated. Both parents struggle with mental health and addiction issues. As a result, the parents have been unable to properly care of their children. While E.R.V.A. was in their custody, their home was barely habitable and the parents were unable to provide for sufficient food, diapers and clothing for the minor child. At the time of the Court’s intervention, E.R.V.A. was found to be malnourished and developmentally delayed and it became apparent that the parents were unable to care for her properly.
On January 3, 2017, E.R.V.A.’s paternal aunt and uncle (“Petitioners”) filed a petition seeking a guardianship and conservatorship of E.R.V.A. Father, who was in prison, executed a waiver of notice or summons and consent to entry of guardianship and conservatorship. Mother, whose whereabouts were unknown, was served by publication. On June 8, 2017, the probate court conducted a hearing on the petition and, on June 13, 2017, judgment was entered appointing Petitioners as co-guardians and co-conservators for E.R.V.A.
Around the period of Father’s incarceration, Mother left E.R.V.A. and her sister in the care of Father’s parents, and Mother formally delegated some of her parental rights by way of a power of attorney dated November 14, 2016, to her father-in-law, who, along with his wife, shared a duplex style residence with Petitioners. At some point, Petitioners assumed the responsibility of caring for E.R.V.A. and her sister.
Nearly a year later, the Parents filed a motion to set aside the judgment, arguing the probate court lacked personal jurisdiction over Mother due to insufficiencies in the affidavit submitted in support of the request for service by publication. The probate court granted the motion. The Parents thereafter filed a motion to dismiss, arguing that the guardianship statute was unconstitutional. The motion to dismiss was denied by docket entry and the probate court proceeded to conduct a four day trial.
Parents raise two points on appeal, challenging the constitutionality of section 475.030, RSMo,7 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 Point II, Parents claim that the probate court erred by failing to hold Petitioners to a “clear and convincing standard of proof,” asserting that a “minor guardianship affects the fundamental liberties protected by the federal and state constitutions and such interference must be supported by a higher standard of proof.”
The Appellate Opinion noted that: “The liberty interest at issue in this case—the interest of a parent in the care, custody, and control of [their] child—is perhaps the oldest of the fundamental liberty interests recognized by the United States Supreme Court.” However, the Appellate Opinion went to on to note that this right is not absolute. Pursuant to Missouri State Law, Section 475.025, RSMo, establishes that a mother and father are the natural guardians of their children and have control over “the custody and care of their persons and education.” However, Section 475.030.4, RSMo, authorizes the court to issue “[l]etters of guardianship of the person of a minor” when “the parents . . . are unwilling, unable or adjudged unfit to assume the duties of guardianship[.]” In this case, the facts made it abundantly clear that the parents were unable and unfit parents.
The parents also argued that the provisions applicable to guardianships for minors are constitutionally deficient because they do not mandate an annual review by the probate court pursuant to RSMO 475.082.1. The Appellate Opinion noted that the parents’ argument was defective because they did not make any mention of section 475.083, RSMo which discusses the circumstances pursuant to which a guardianship can be terminated. It is important to note that parents can also petition for a review of guardianship, something the parents in the present case did not do.
With respect to the second point on appeal, Parents assert that the probate court’s use of the preponderance of the evidence standard was improper arguing that “a clear and convincing standard” is required in a guardianship involving a minor due to the constitutional concerns raised in Point I. This Point was denied because the Supreme Court of Missouri recently ruled that a preponderance of the evidence is the appropriate burden of proof in such cases.
Trial court ruling affirmed.
