Subject Matter Covered: As Guardian Ad Litem for a child, you should be familiar with many aspects of the law, including definitions of abuse and neglect, standards for custody and visitation decisions, child support guidelines, grounds for modification of decrees, availability of protective orders, rules of procedure and evidence, etc. I am not even going to try to cover all of these topics on this page - for that kind of coverage, see Suggested Reference Materials on Juvenile and Family Law. On this page I will attempt to include summaries of new cases (and important older cases) discussing the role and duties of Guardians Ad Litem (GALs) and Court Appointed Special Advocates (CASAs); plus such cases involving related areas of juvenile and family law as I deem important for change or clarification of existing law, as related to my own practice as a GAL (in other words, cases that I make a note of for my own future reference).
Order of Cases Presented: Cases are presented on this page in reverse chronological order. To find a specific case by name, use the "Find" function of your web browser. I would like to eventually add a Topical Index of Cases, and an Alphabetical Index by Case Name, but haven't had time to do it yet.
Notes re Format, Viewing, and Downloading Cases
Notes re How to Obtain Full Text of Cases
Here is a link back to the main Missouri Law page - cases, statutes, rules, etc.
State v. Kelley, ___ S.W.2d ___ (Mo. App. S.D. 1997); SD xxxx, May xx, 1997; MLW 19812; Out-of-court statements by child sexual abuse victim concerning sex acts committed by father were properly admitted into evidence.
Honea v. Powell, ___ S.W.2d ___ (Mo. App. S.D. 1997); SD xxxx, May xx, 1997; MLW 19815; Custody of children awarded to grandparents rather than to natural father. Substantial evidence rebutted presumption that a natural parent should be awarded custody rather than a third party such as the grandparents.
Gibson v. Gibson, ___ S.W.2d ___ (Mo. App. W.D. 1997); WD xxxx, May 20, 1997; MLW 19821; Form 14 is not subject to objection for lack of foundation. Trial court must accept or reject Form 14 submitted by each party at conclusion of the evidence (not when it is submitted), or else the court must complete its own Form 14 based on the evidence.
In the Interest of H.R.R., ___ S.W.2d ___ (Mo. App. W.D. 1997); WD xxxx, May xx, 1997; MLW 19837; Trial court's order granting Termination of Parental Rights on statutory grounds not alleged in petition required remand.
Juvenile Officer v. DFS, ___ S.W.2d ___ (Mo. App. xx.D. 1997); xxD xxxx, May xx, 1997; MLW 19706; Appointed counsel's expenses for witness fees and depositions in Termination of Parental Rights case were properly taxed to DFS, the legal custodian of the children.
In the Interest of L.N.M., ___ S.W.2d ___ (Mo. App. W.D. 1997); WD 51995, April 29, 1997; MLW 19630; Trial court's failure in Termination of Parental Rights case to make specific finding as to one of the four subparagraphs under §211.447.2(2) required remand.
In the Interest of A.K.L., ___ S.W.2d ___ (Mo. App. S.D. 1997); SD 20752, April 22, 1997; MLW 19606; Evidence showed that Mother lacked appropriate social and parenting skills and her parental rights were properly terminated.
Baumgart v. Baumgart, ___ S.W.2d ___ (Mo. App. W.D. 1997); WD 52566, April 22, 1997; MLW 19570; Click Here for Full Text. Father had primary physical custody of the children pursuant to the decree of dissolution. Mother filed a motion to modify custody, making allegations that the one of the children had been sexually abused by Father, and the Court entered a temporary order placing the children with Mother. Mother had the children for three and a half years under the temporary order before the final decree of modification was entered, and Mother argued that her long period of actual physical custody of the children under the temporary order should shift the burden of proof on the modification proceeding. The Court of Appeals disagreed, and held that the burden of proving a change of circumstances remains with the parent seeking modification of the original decree. However, the Court also held that Mother's actual physical custody of the children during the period of the temporary order was itself a change of circumstances that might justify a modification of custody. The Court also discussed the statutory duties of a guardian ad litem, discussed the evidence in the record of the GAL's lack of preparation in this case, and found that "the record does not reveal that [the GAL] undertook any investigation or otherwise performed his duties." The case was remanded for appointment of a new GAL and further investigation regarding the allegations of abuse.
In the Interest of C.T., ___ S.W.2d ___ (Mo. App. S.D. 1997); SD 20896, April 17, 1997; MLW 19566; Juvenile officer's petition which failed to allege any specific instances of abuse or neglect was insufficient to vest the juvenile court with jurisdiction over the child.
Alt v. Alt, ___ S.W.2d ___ (Mo. App. W.D. 1997); WD 51866, April 8, 1997; MLW 19389; Court of Appeals affirmed trial court's joint physical custody order that required the child to alternate every two weeks from one parent to the other.
In re Cotton (Circuit Court, City of St. Louis, March xx,1997); MLW 19449; Circuit judge found the half-sister of two children to be the "equitable parent" of the children where the Father placed the children in her actual physical custody for an extended period of time. The judge then treated the half-sister as a "parent" for purposes of §452.375.5, placing the children in her custody despite a finding that the Father was "not unfit" to be their custodian. The court found that it would be an actual detriment to the children to be removed from their sister's care.
Mayes v. Mayes, ___ S.W.2d ___ (Mo. App. S.D. 1997); SD 20477, March 28, 1997; MLW 19325; Where court had opportunity to judge credibility of Mother's testimony alleging emotional abuse of the children by Father, and where Mother offered no evidence of physical abuse of the children by Father, the Court of Appeals affirmed the trial court's denial of Mother's request that Father's visitation with the children be supervised. Where Mother never requested the appointment of a GAL for the children, and neither parent alleged abuse or neglect of the children in their pleadings, it was not error for the trial court not to appoint a GAL.
Neal v. Neal, ___ S.W.2d ___ (Mo. banc 1997); No. 79376, March 25, 1997; MLW 19248; Click Here for Full Text. Child support award entered without calculation of Form 14 was invalid. Because the Form 14 calculation of support creates a rebuttable presumption as to the correct amount of support, it must be calculated in every case, even when the trial court may find it inapplicable.
J.L.S. v. D.K.S., ___ S.W.2d ___ (Mo. App. E.D. 1997); ED 68859 & 68874, March 11, 1997; MLW 19093; Click Here for Full Text. The trial court should not have placed a restriction on Father's visitation rights without a finding of how visitation would impair the children's emotional development. However, the Court of Appeals found that such a finding was implicit in the tiral court's decision, and that the implicit finding was supported by the evidence. Further, in view of such a finding of emotional impairment, the trial court should not have simply ordered a standard visitation schedule to begin after one year of counseling, but should have another hearing and require evidence of successful counseling before standard visitation begins.
In the Matter of I.D., ___ S.W.2d ___ (Mo. App. S.D. 1997); SD 21062, February 18, 1997; MLW 18930. Even though Mother had signed a "Consent to Transfer of Custody" including an acknowledgment that the transfer was "for purposes of adoption," the form that she signed did not expressly consent to the adoption of the child and the failure of the prospective adoptive parents to serve Mother with their amended petition seeking adoption of the child required that the decree of adoption be set aside.
In the Interest of J.M.B., ___ S.W.2d ___ (Mo. App. E.D. 1997); ED 70917, February 25, 1997; MLW 18989; Click Here for Full Text. Attorney was appointed as GAL and counsel for Mother (a minor) in an action for termination of Mother's parental rights to her infant child. Mother had signed a form consenting to termination, but at a previous hearing had been equivocal as to the voluntariness of her consent. Mother failed to appear for the final hearing, but her GAL/counsel did not request a continuance or recess to inquire into her whereabouts. After brief testimony and minimal cross-examination, the GAL/counsel announced to the Court that Mother had not contacted him, but that it was his opinion as her GAL that the termination would be in her best interest. The trial court entered the TPR decree. The Court of Appeals held that Mother was deprived of effective assistance of counsel, and the case was reversed and remanded.
Farr v. Cloninger, ___ S.W.2d ___ (Mo. App. S.D. 1997); SD 20742, January 30, 1997; MLW 18774; For trial court to order non-custodial parent to pay one-half of uninsured medical expenses in addition to child support calculated using Form 14, court must first make a finding that the Form 14 amount was unjust or inappropriate under the circumstances.
In the Interest of Hill, 937 S.W.2d 384 (Mo. App. W.D. 1997); WD 51966, January 21, 1997; MLW 18627; Five-year-old Child was raised by Uncle and Aunt from age two months onward and considered them his parents. Paternity of Father was later established. Although the trial court did not find Father to be unfit or terminate his parental rights, the court ordered that Child remain in the physical custody of Uncle and Aunt under DFS supervision.
In re S.M. and A.M., ___ S.W.2d ___ (Mo. App. W.D. 1997); WD 50666, January 7, 1997; MLW 18512; Click Here for Full Text. This case involved guardianship proceedings for two young Rwandan refugees. The children's mother had died in Africa, and the woman that the mother had placed the children with died after bringing the children to Missouri. Guardianship of the children was disputed between an uncle that they hardly knew, and an unrelated couple that had known and cared for the children for several years. The Court stated that "Although Missouri courts recognize that placement with a relative benefits the children, the law of Missouri places a higher value on the quality of the children's home environment and the stability of the home and relationships." Another issue was the trial court's failure to question the children themselves regarding their preferences for placement. The Court found that although section 475.045 RSMo gives a child over the age of fourteen a limited right to choose his/her own guardian, there is no requirement in the code that the court consider the preference of a child fourteen or under when appointing a guardian or conservator. The Court then stated that, "Nevertheless, evidence of a child's preference may be a legally relevant factor in a guardianship proceeding, and, therefore, admissible." In this case, however, the uncle failed to make any attempt to present such evidence. A final point was the uncle's contention that the GAL failed to perform her duties. The Court noted six instances in the record of the GAL's contact with the children or with others having knowledge of the children's situation, and the GAL's participation in the presentation of evidence and cross-examination of witnesses at trial, and found that she had not failed to adequately represent the interests of the children.
State ex rel Bird v. Weinstock, 864 S.W.2d 376 (Mo.App. E.D. 1993); Click Here for Full Text. GAL was appointed to represent children in a custody dispute involving allegations of sexual abuse. Father filed a separate action, in his own right and on behalf of the children, seeking damages from GAL for alleged legal malpractice in his representation of the children. GAL claimed judicial immunity for actions in his capacity as GAL. The Court of Appeals first noted that "appointment of a guardian ad litem in custody cases supersedes a parent's natural guardianship" and appears to question Father's standing to bring the action on behalf of the children, but declines to decide the case on that issue. The Court then discussed the traditional grounds for judicial or quasi-judicial immunity, discussed case law from other states on the issue of GAL immunity, discussed at length the duties of a GAL under Missouri law, and held that quasi-judicial immunity for the GAL for actions within the scope of his duties was required in order to preserve to the trial court the exclusive responsibility and authority to supervise and remove GALs, without interference from unhappy parents or others seeking to coerce the GAL by means of collateral actions.
In the Interest of J.L.H., 647 S.W.2d 852 (Mo.App.W.D. 1983); Click Here for Full Text. This is another unfortunate case in which the Court of Appeals found that the GAL failed to perform his duties, stating that "From the transcript here it is difficult to see what the guardian ad litem contributed to determining what here was best for J.L.H." The main issue in this case was what weight should be given to cultural and family ties in determining what placement was in the child's best interest. The Court determined that such factors should only be applied to "tip the scales" when choosing between otherwise equal placements. In this case, the Court of Appeals upheld the trial court's determination that the non-relative placement was clearly better for the child, and that the cultural and family factors therefore did not even come into consideration. The Court then noted the GAL's lack of participation in presenting the case to the trial court, and discussed in some depth what the GAL should have been doing. The Court noted that "it is imperative that the guardian ad litem investigate and have input on the perspective of the child's best interest and this be presented to the trial judge," that "if a guardian ad litem is to err it should be on the side of investigating too much rather than too little," and that "it is the guardian ad litem's duty to stand in the shoes of the child and to weigh the factors as the child would weigh them if his judgment were mature and he was not of tender years."
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