In re CUSTODY OF R.W. Susan Gregory, Petitioner-Appellee,
Travia B. and Alvernon W., Respondents Alvernon W., Respondent-Appellant; Raphael Hall, Intervenor.
from the Circuit Court of St. Clair County. No. 16-F-500
Honorable Patricia H. Kievlan, Judge, presiding.
Attorney for Appellant Andrew Mossman, Cordell & Cordell,
Attorney for Appellee Attorney Heather Wescoat Dabler, The
Law Offices of Susan Parnell Wilson.
Justices: Honorable Melissa A. Chapman, J. Honorable Richard
P. Goldenhersh, J., and Honorable Judy L. Cates, J., Concur
CHAPMAN JUSTICE delivered the judgment of the court, with
opinion. Justices Goldenhersh and Cates concurred in the
judgment and opinion.
1 For most of her life, R.W., the six-year-old child at the
center of this dispute, was cared for by two individuals
other than her biological parents-her biological uncle,
Raphael Hall, and an unrelated individual, Susan Gregory. Her
biological mother, Travia B., spent time with R.W., but she
allowed Susan and Raphael to take on the responsibility of
caring for her. When R.W. was an infant, Travia told her
biological father, Alvernon W., that he was not the father.
After that, Alvernon had no involvement in R.W.'s life
until a petition to establish parentage was filed in
Missouri. After it was determined that Alvernon was, in fact,
R.W.'s biological father, he sought to become more
involved in her life.
2 Susan filed a petition for the allocation of parental
responsibility and parenting time. The court found that Susan
had overcome the presumption of a parent's superior right
to custody but did not find that either parent was unfit. It
allocated parenting time to all four of the parties, but it
gave Susan sole decision-making responsibility and the
majority of parenting time. After Alvernon filed a motion to
set aside the parenting order, the court entered an order
finding both parents to be unfit and a separate order denying
Alvernon's motion. Alvernon appeals, arguing that (1) the
court erred in finding him to be an unfit parent because no
party alleged that he was unfit, (2) the court's finding
of unfitness was against the manifest weight of the evidence,
and (3) the court failed to consider his fundamental
constitutional rights as a parent in its parenting order.
Susan filed a motion to strike the portions of Alvernon's
brief addressing the findings of unfitness, arguing that his
notice of appeal does not identify the order containing those
findings. We deny Susan's motion to strike, vacate the
order finding Alvernon and Travia to be unfit, and affirm the
court's parenting order.
3 R.W. was born on July 3, 2011. Alvernon was not at the
hospital when Travia gave birth, but she called him a few
hours later, and he arrived within half an hour. At that
time, Alvernon was 20 years old and had no other children.
Travia was in her mid-20s and had five other children.
According to Alvernon, he asked Travia if the baby was his,
and she told him there was a possibility that he was not the
baby's father. This angered him, and he left the
4 A week later, however, Travia and Alvernon began to share
in the responsibility of caring for R.W. According to
Alvernon, he cared for R.W. Mondays through Fridays, and
Travia cared for her on the weekends. According to Travia,
she and Alvernon each cared for R.W. 3½ days per week.
This arrangement continued until R.W. was three months old,
when Travia arrived at Alvernon's home with the police.
According to Travia, she called the police that day because
when she arrived to pick up R.W., no one answered the door.
She testified that she thought Alvernon and his family could
not hear her knocking on the door. Alvernon testified that,
at the time, he thought Travia called the police because he
was not R.W.'s father. In any case, an officer took R.W.
from Alvernon and handed her to Travia, and Alvernon did not
see R.W. again for six months.
5 Within days after this incident occurred, Travia brought
R.W. to the home of her brother, Raphael, and asked Raphael
to take care of her. Travia testified at the hearing that she
did so because she was evicted from her apartment, forcing
her and her children to move in with her grandmother. Her
grandmother suggested asking Raphael to care for R.W. At that
time, Raphael lived with his mother, his long-term partner,
Chuck, and his best friend, Candice. At the time of the
hearing, Raphael was still living with Chuck and Candice.
Chuck's teenage daughter also stayed with them every
6 Raphael originally rented property in St. Louis from
Susan's parents; however, after Susan's father was
diagnosed with ALS in 2007, Susan took over management of her
parents' rental properties. She became friendly with
Raphael. She knew that Raphael suffered from sickle cell
disease and that he did not have a vehicle or driver's
license. She offered to help him out when she could,
including by driving him to doctor's appointments. In
October 2011, when Susan learned that Raphael was caring for
a baby, she offered to help. Initially, Susan cared for R.W.
at her home in Belleville, Illinois, on weekends, and Raphael
cared for her each week from Monday morning to Friday
afternoon. Over time, however, the amount of time Susan spent
caring for R.W. increased due to various factors, including
Raphael's health, R.W.'s medical needs, and
7 In 2012, R.W. was diagnosed with cancer. Susan's
mother, Pat, who is a retired nurse, explained at the hearing
that doctors believed R.W. was likely born with cancerous
cells in her fallopian tubes. However, there were no outward
signs of the disease until R.W. suddenly fell ill at nine
months old. Pat explained that the cells grew into a tumor,
which attached itself to a blood vessel near R.W.'s
ovary. The tumor was thus able to nourish itself and grow
very quickly. Susan and Pat took R.W. to the emergency room
on a Friday night. She had a high fever and had to be
stabilized before she could undergo surgery to remove the
tumor the following Monday.
8 All four of the parties spent much of that weekend at the
hospital with R.W., as did Susan's mother, Pat, and
Raphael's partner, Chuck. Both Travia and Alvernon
testified that they had a discussion outside the hospital
during which Alvernon asked Travia whether he was R.W.'s
father. Travia told him he was not R.W.'s father.
Alvernon testified that he was disappointed by this news but
had no reason to disbelieve Travia. He soon moved to Kansas
City with his girlfriend, Mia Sutton. At the time of the
hearing, Alvernon and Mia were still together.
9 After the surgery, Travia signed a document permitting R.W.
to be released to Susan's care. The document indicated
that Susan's relationship to R.W. was that of a family
friend and godmother. According to Raphael, one of the
reasons for this arrangement was the fact that Pat, as a
nurse, would be best able to administer medications to R.W.
After an initial recuperation period, Susan and Raphael
returned to sharing the responsibility of caring for R.W.
However, as mentioned earlier, Susan began taking on a larger
share of the responsibility. When R.W. was released from the
hospital, she had to return each Tuesday for blood draws and
checkups with her oncologist. Because Raphael could not drive
her to these appointments, Susan began bringing R.W. back to
his house after her Tuesday appointments instead of on Monday
mornings, as she had done previously. Many weeks, R.W.
arrived at Susan's home on Thursday rather than on
10 Periodically, Raphael was hospitalized as a result of
complications from sickle cell disease. During these periods,
Susan cared for R.W. full time. At one point, Raphael
underwent two hip replacement surgeries, the second of which
was performed eight weeks after the first. During his
recuperation period, Susan cared for R.W. full time. After he
recovered, Raphael and Susan once again shared the
responsibility of caring for R.W.
11 When R.W. was old enough to begin preschool, Susan looked
at preschools near her home in Illinois. When she discussed
the matter with Raphael, he told her that he wanted R.W. to
attend a preschool in St. Louis, near his home. Together,
Susan and Raphael visited three preschools in St. Louis. They
decided jointly to enroll her in one of those schools. On the
registration paperwork, Raphael was listed as R.W.'s
father and Susan was listed as her mother.
12 When R.W. entered elementary school, Susan enrolled her at
Zion Lutheran, a private school in Belleville. Susan also
enrolled R.W. in several different activities-swimming
lessons, dance classes, Daisies, horseback riding lessons,
and Center of Creative Arts, a theater company in St. Louis.
At Raphael's request, Susan scheduled these activities so
they would take place during her time with R.W. Although
Raphael attended many of R.W.'s school events, dance
recitals, and other events, Travia and Alvernon did not.
13 In 2014, the Missouri Department of Public Aid filed a
petition to establish parentage in a Missouri court. At the
hearing in this matter, Travia denied that the petition was
filed because she applied for public assistance on behalf of
R.W. She testified that she wanted to establish paternity in
order to "gain full custody from Alvernon." She
claimed that this was because she wanted to avoid
complications that sometimes arose when she encountered
paperwork requiring the signatures of two parents-for
example, when she applied for a passport for R.W. Travia
acknowledged that she listed R.W. as a dependant for purposes
14 Alvernon testified that he was unaware of the Missouri
parentage case until May 2016, when he received a notice
directing him to submit to DNA testing because he had been
named as the father of R.W. Alvernon was determined to be the
father, and he was ordered to pay Travia $119 per month in
child support. Both Travia and Alvernon testified that
Alvernon paid more than this amount. According to Alvernon,
he was unaware that R.W. was not living with Travia.
15 Although Travia did not live with R.W. or take
responsibility for her care, she did visit with her,
including occasional overnight visits. Early in the summer of
2016, Alvernon arranged with Travia to visit with R.W.
Raphael and Susan were not happy that Travia arranged this
visit without consulting with them. Susan was afraid that
Alvernon might take R.W. back to Kansas City with him.
16 On July 19, 2016, Susan filed a petition for allocation of
parenting time and parental responsibilities. She alleged
that R.W. had been in her physical custody since
approximately October 2011 and that Travia had failed to show
a reasonable degree of care, concern, or interest in R.W.
since that time. Susan further alleged that, "On
information and belief, " Alvernon had no contact with
R.W. before the summer of 2016 and that neither parent showed
any interest in R.W.'s education, extracurricular
activities, or medical care. She alleged that, "On
information and belief, a support case was opened in St.
Louis, Missouri, by the Department of Public Aid, and an
order finding ALVERNON [W.] to be the biological father and
to pay child support in the amount of $119 per month was
entered by the Court." Susan requested that she be given
sole authority to make decisions concerning significant
parenting responsibilities and the majority of parenting
time. She requested that parenting time be awarded to both
Travia and Alvernon, but she asked that this time be limited
to daytime visits at scheduled times. Susan named Travia and
Alvernon as respondents, but she did not name Raphael as a
respondent or request that parenting time be allocated to
him. Along with her petition, Susan filed a motion seeking a
restraining order enjoining Alvernon and Travia from removing
R.W. from her care or from the State of Illinois. Susan did
not consult with Raphael or Travia before filing the
petition, which led to a breakdown in her previously cordial
relationship with Raphael. The court entered an ex
parte temporary restraining order on July 21, and it
entered an injunction on July 28.
17 On August 25, 2016, Travia filed a response to the
petition. She requested that she be given sole
decision-making authority for parental responsibility and the
majority of parenting time. She also asked that Susan's
petition be dismissed.
18 On September 1, 2016, Raphael filed a petition to
intervene and for allocation of parental responsibility and
parenting time. He alleged that R.W. was not in the physical
custody of either of her parents. He alleged that she was in
Raphael's physical custody from approximately October
2011 until July 28, 2016, when Susan was granted sole custody
pursuant to a court order. He repeated the allegations in
Susan's petition concerning Travia and Alvernon. Raphael
requested that he be given sole authority to make decisions
concerning significant parental responsibilities and the
majority of parenting time. However, he ...