330 S.W.3d 858
Mo. Ct. App.2011Background
- A.R. was born August 28, 2009, out of wedlock; mother tested positive for cocaine and marijuana at birth; infant tested positive for marijuana.
- Mother entered treatment; she later admitted PCP use and refused inpatient treatment, leading to protective custody of the baby.
- Father was the putative father; described as homeless and unemployed; there was no admitted wrongdoing by Father at this stage.
- Juvenile Officer filed petition under section 211.031, alleging the child was without proper care, custody, or support due to Mother's condition; temporary custody placed with grandmother with supervised visits for Father.
- Adjudication found Mother's issues supported by clear and convincing evidence; disposition kept A.R. in grandmother's custody; Father ordered to undergo drug testing and participate in services.
- Father appealed, arguing the court exceeded jurisdiction, due process issues, and nonoffending-parent custody under section 211.037.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court could deny Father custody under 211.037 | Father contends court should place child with nonoffending parent | Court may deny custody if Father fails conditions of 211.037 and evidence supports care needs | Court properly denied custody under 211.037 and discretion remained with court |
| Did the disposition violate 211.037 or rely on proper statutory framework | 211.037 creates a preference for nonoffending parent custody | Statutory requirements not met by Father; discretion to place elsewhere remains | No violation; statute not absolute; factors not satisfied here |
| Were Father’s due process rights violated or were constitutional challenges preserved | Father asserts fundamental liberty interest was violated | Procedural pathway preserved and no constitutional violation occurred | No due process violation; issues not preserved for appellate review |
| Was the constitutional challenge to 211.037 preserved for review | Section 211.037 unconstitutional | No preservation; court did not rule on it below | Not preserved; denied on preservation grounds |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of review for trial court judgments)
- In the Interest of D.K.S., 106 S.W.3d 616 (Mo.App. W.D. 2003) (adjudication/disposition bifurcation and evidence standards)
- In the Interest of G.C., 50 S.W.3d 408 (Mo.App. E.D.2001) (need of care and clear and convincing evidence standard)
- S.H. v. O.M.H., 796 S.W.2d 71 (Mo.App. E.D.1990) (jurisdiction and child welfare considerations)
- Strong v. American Cyanamid Co., 261 S.W.3d 493 (Mo.App. E.D.2007) (constitutional challenge preservation requirements)
- S.A. v. Miller, 248 S.W.3d 96 (Mo.App. W.D.2008) (preservation of constitutional issues for appellate review)