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In the Missouri Court of Appeals Western District  
In re: The Matter of C.C.S.  BARBARA RASH, Appellant, v.  ROBIN WILSON, Respondent.
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   WD75298 FILED:  January 29, 2013


  APPEAL FROM THE CIRCUIT COURT OF ADAIR COUNTY THE HONORABLE KRISTIE J. SWAIM, JUDGE  BEFORE DIVISION TWO: KAREN KING MITCHELL, PRESIDING JUDGE,  THOMAS H. NEWTON AND LISA WHITE HARDWICK, JUDGES  
Barbara Rash appeals the circuit court's judgment appointing Robin Wilson to be guardian of Wilson's minor grandson, C.C.S.  Rash contends that, in awarding guardianship to Wilson and denying her request for visitation, the court did not consider C.C.S.'s best interests because it did not discuss or apply the best interest factors enumerated in Section 452.375.2.1  Rash also asserts that the court gave undue weight to the blood relationship between C.C.S. and Wilson.  Additionally, Rash argues that the judgment is against the weight of the evidence
1 All statutory references are to the Revised Statutes of Missouri 2000, as updated by the Cumulative Supplement 2011.  


and is not supported by substantial evidence.  For reasons explained herein, we affirm. FACTUAL AND PROCEDURAL HISTORY
C.C.S. was born on September 19, 2008, to Chantelle Watson and Robert Wilson.2  Chantelle and Robert were not married and were no longer together at the time of C.C.S.'s birth.  Chantelle asked her friend, Rash, who had dated Chantelle's father from 1995 through 2005, to text Robert to notify him of C.C.S.'s birth.  Robert did not try to visit with C.C.S. at that time because he was "going through some legal issues" and was not prepared to be a parent.  Robert's mother, Wilson, wanted to have contact with C.C.S., but she did not seek visitation because she "thought it was something that Robert and Chantelle needed to work out."  When Chantelle and C.C.S. were released from the hospital, Rash drove them to Chantelle's home and stayed with them through the evening.  As Rash prepared to leave, Chantelle told her to take C.C.S. with her.  Rash took C.C.S. to the home she shared with her boyfriend, James Middleton, and his elderly father. After C.C.S. went home with Rash, Chantelle would take C.C.S. for only short periods, usually one night or a couple of days, before she would call Rash to come get him.  Chantelle then began using drugs and having even less contact with C.C.S.  
2 To avoid confusion, we will refer to C.C.S.'s parents by their first names.  No disrespect is intended.  

When C.C.S. was four months old, Rash took him to the doctor for a checkup.  The doctor noticed that the child had been born with drugs in his system.  Thinking that C.C.S. was in Chantelle's care, the doctor told Rash that she was required to make a hotline call to report her concerns.  Rash told the doctor that she feared that C.C.S. would be placed in foster care if a hotline call was made.  The doctor agreed to wait to make the hotline call to allow Rash to make arrangements to avoid foster care.  Rash and Chantelle spoke to an attorney about Rash's options.
On January 26, 2009, Rash filed a petition for guardianship of C.C.S.  Chantelle filed her consent to the guardianship.  Rash's petition listed the child's father as "unknown" and did not list any possible fathers.  At that time, however, Rash knew that Chantelle and Robert were living together when Chantelle got pregnant, that Chantelle had previously told her that Robert was possibly the father, and that Chantelle had asked her to send Robert a text notifying him of C.C.S.'s birth.  Moreover, Rash had Robert's phone number and knew where he lived when she filed the guardianship petition.  Nevertheless, Rash did not have Robert served with the petition, and he received no notice of the proceeding.  On February 20, 2009, the Adair County Circuit Court entered a judgment appointing Rash to be C.C.S.'s guardian.  
In September 2009, Robert decided that he wanted to meet C.C.S.  Unaware that the child was living with Rash and not Chantelle, Robert attempted to contact Chantelle to schedule a visit.  When he could not reach Chantelle,
Robert called Rash to find out if she had Chantelle's contact information.  Rash told Robert that C.C.S. was with her, and they arranged for Robert to visit the child.
Shortly thereafter, Robert and Wilson went to Rash's house to visit C.C.S.    Wilson then learned, for the first time, that Chantelle was not C.C.S.'s caretaker and that Rash had been appointed his guardian.  Believing that C.C.S. should be raised by his biological family rather than by a nonfamily member, Wilson hired an attorney for Robert to pursue custody of the child.  Robert subsequently filed a motion to terminate the guardianship.  Robert also filed an action for determination of paternity and custody in Clark County, which was where he lived.  
In the meantime, Robert requested more visits with C.C.S.  Rash allowed Robert to have visitation every other weekend at the Rash home.  Eventually, those visits progressed into overnight visits at Wilson's home.  
Rash discontinued this visitation in March 2010, however, and made a hotline call to Children's Division to report bruises she found on C.C.S.'s buttocks following a visit with Robert.  Robert told Rash that the bruises were caused by C.C.S.'s bouncing in his swing or sliding on his bottom down the stairs, but Rash did not believe him.  Children's Division investigated and found the abuse allegations unsubstantiated.  Children's Division also determined that the child was at low risk, and no family-centered services case was opened.
Despite these findings, Rash continued to deny the Wilson family any contact with C.C.S.  Robert called her on multiple occasions to request visits, but she would not return his calls.      
In December 2010, the Clark County Circuit Court entered a judgment declaring Robert to be C.C.S.'s father.  Because of the Adair County guardianship case, the court declined to enter a custody order.  In July 2011, the Adair County Circuit Court entered a judgment setting aside Rash's guardianship of C.C.S. for lack of jurisdiction on the basis that proper service on Robert was not obtained. Rash thereafter filed a second petition for guardianship of C.C.S.  Wilson was granted leave to intervene and also filed a petition for guardianship in August 2011.  At that time, Robert was incarcerated in the Clark County Jail for assault.  After Wilson filed her guardianship petition, Rash allowed her to visit C.C.S.   Per Rash's request, the court ordered Children's Division to perform a home study on Wilson's home and on Rash's home.  After conducting the studies, Children's Division concluded that Wilson and her live-in boyfriend, Larry Ball, could serve as licensed foster parents for C.C.S., but there were "several concerns" in Rash's and Middleton's home that would prevent them from becoming licensed foster parents.            
Trial was held on both guardianship petitions in January 2012.  Neither Chantelle nor Robert filed an answer or participated in the trial, but Chantelle filed her consent to Rash's appointment.3  At the close of the evidence, the guardian ad litem recommended that Wilson be appointed C.C.S.'s guardian.  The court subsequently entered its judgment appointing Wilson to be C.C.S.'s guardian.  Rash
3 At the time of trial, Chantelle was in the Adair County Drug Court Program and her other biological children were in alternative care.  Robert remained incarcerated for assault.

filed a motion for visitation and for rehearing, both of which were denied.  Rash appeals.
STANDARD OF REVIEW
Our review of the circuit court's judgment in proceedings to appoint a guardian is governed by the standards set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).  In re Estate of A.T., 327 S.W.3d 1, 2 (Mo. App. 2010).  We must affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.  Id.  We view the evidence and any reasonable inferences therefrom in the light most favorable to the court's decision and disregard all contrary evidence and inferences.  Pulley v. Sandgren, 197 S.W.3d 162, 165 (Mo. App. 2006).  In doing so, we recognize that the court was free to believe or disbelieve all or any part of the witnesses' testimony.  A.T., 327 S.W.3d at 2.
ANALYSIS
In Point I, Rash contends that, in awarding guardianship of C.C.S. to Wilson and denying Rash's request for visitation, the court did not consider C.C.S.'s best interests because it did not discuss or apply the best interest factors enumerated in Section 452.375.2.  Rash argues that "[w]hat standard the judge did apply is not readily apparent" from the judgment, but it was not a best interests of the child standard.
The probate code has three statutes that govern the appointment of a guardian for a minor.  A.T., 327 S.W.3d at 2.  Section 475.025 provides that
parents are the natural guardians of a minor child.  Section 475.030.4 allows the court to appoint a statutory guardian for the minor child in three instances, including where, as here, the parents are unwilling, unable, or adjudged unfit to assume the duties of guardianship.  Where the parents are unwilling, unable, or unfit to assume guardianship, Section 475.045.3 directs the court to appoint as guardian "the most suitable person who is willing to serve and whose appointment serves the best interests of the child to a stable and permanent placement."  In its judgment, the court found that Wilson is the most suitable person who is willing to serve as guardian and whose appointment serves the best interests of C.C.S. to a stable and permanent placement.  Rash argues that this finding is insufficient because the court should have explained why placement with Wilson is in C.C.S.'s best interests based upon the factors listed in Section 452.375.2.  We disagree.
We first note that the court was under no duty to make written findings explaining its decision.  Rash could have requested written findings on any controverted fact issues in the case pursuant to Rule 73.01(c).  Such a request would have had to have been made on the record before the introduction of evidence or at a later time, if the court so allowed.  Id.  Rash did not request findings of fact on any issues before the introduction of evidence or at any time
during the trial.  Therefore, the court did not err by failing to make findings explaining why Wilson's appointment is in C.C.S.'s best interests.4  Furthermore, there is no express or implicit indication in Section 475.045.3 that the legislature intended for the court to apply Section 452.375.2 to determine whether the appointment of a particular guardian "serves the best interests of the child to a stable and permanent placement."  Section 452.375 governs custody determinations in dissolution of marriage proceedings and provides eight factors for the court to consider in deciding which custody arrangement would be in the child's best interests.  These factors are, in pertinent part: (1) The wishes of the child's parents as to custody and the proposed parenting plan submitted by both parties; (2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;  (3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;   (4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;  (5) The child's adjustment to the child's home, school, and community;  (6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. . . . ;  
4 Moreover, even if Rash had made a request pursuant to Rule 73.01(c) and the court had not made the requested findings, her claim of error would still fail because it was not preserved in a post-trial motion to amend the judgment.  Rule 78.07(c); Jenkins v. Jenkins, 368 S.W.3d 363, 369 (Mo. App. 2012).      

(7) The intention of either parent to relocate the principal residence of the child; and  (8) The wishes of a child as to the child's custodian. . . .  

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