Update from the Eastern District of the Missouri Court of Appeals

Kea1by Kea Bird-Riley

In December 2014 the Eastern District reversed a judgment in a guardianship case for an “utter lack of factual findings and legal conclusions” supporting the trial court’s decision.

In the Matter of J.D.D., the appellant appealed from the trial court’s judgment denying his petition for letters of guardianship over the minor child and granting the mother’s petition for habeas corpus. Although Appellant was not the child’s biological father, the mother listed Appellant as the child’s father on the birth certificate. Mother also signed a release allowing Appellant to take the child home from the hospital after the child’s birth. Although the mother was still responsible for the child’s health care needs, she failed to provide financial assistance for the child’s extensive health care bills. Moreover, Mother did not attempt to see the child until almost two and a half years later. Subsequently, the mother filed a Petition for Writ of Habeas Corpus and requested physical custody of the child. In response, Appellant filed a Petition for Guardianship. In addition to presenting evidence of the mother’s abandonment and neglect of the child, Appellant also presented evidence of the mother’s physical inability to care for the child. Appellant argued that the trial court’s judgment was unsupported by substantial evidence and against the weight of the evidence because the evidence also established Mother’s mental and physical incompetence. In addition, Appellant argued the mother was unfit to assume the duties of natural guardian because she abandoned and neglected the child. The Court noted the creation of a rebuttable presumption in favor of a natural parent as the appropriate custodian for a child; however, such presumption dissipates upon the presentation of evidence that the parent is unfit, unwilling or unable to care for the child. The Court considered the mother’s failure to provide for the child for two and a half years as abandonment and neglect.

Does a Child Need His Own Attorney AND a Guardian ad Litem?

by Kea Bird-Riley, CASA Staff Attorney/Guardian ad LitemKea1

The Guardian ad Litem is the child’s voice in Family Court, right?  But there are times when the child may feel that the guardian ad litem is tone deaf.

It is common for the Guardian ad Litem’s recommendation of what is in the child’s best interest to run afoul of what the child believes to be in his or her best interest.  For example, a child may be under jurisdiction due to a parent’s abuse and neglect that includes habitual drug use.  Yet, the child may express a desire to return home soon, if not immediately, before the parent has rectified their substance abuse or completed the court ordered services required for reunification.

The Missouri Supreme Court requires Guardian ad Litems to be guided by the child’s best interest and to exercise independent judgment.  In fact, the comment in Standard 3.0 clearly distinguishes the Guardian ad Litem’s role from that of the child’s attorney’s role.

 “A guardian ad litem is not the lawyer for the child and, therefore, advocates the best interests of the child rather than merely representing the child’s preferences.” [Standard 3.0 Comment].  However, Guardian ad Litems still have an ethical obligation to inform the Court of the child’s preferences and wishes. [Standard 13.0]

While the child’s preference may differ from the Guardian ad Litem’s recommendation, the Court does not customarily appoint a separate attorney solely for that reason.  In fact, the Missouri Supreme Court requires the Court to appoint counsel and a Guardian ad Litem when necessary to assure a full and fair hearing.  [Rule 115.02].  The necessity for separate appointed counsel in addition to a Guardian ad Litem may arise when: the juvenile has a child under Family Court jurisdiction; has been charged with a status offense; or has been alleged to have violated a state law or municipal ordinance.

So what is the difference?  The attorney seeks the end result, or as close to it, desired by the child.  The Guardian ad Litem’s role is to represent the child’s best interest, even if it is contrary to the child’s preferences.