B.T.C. v. K.J.C.
| Decision Date | 20 November 2012 |
| Docket Number | SD 31602,SD 31604.,SD 31603,Nos. SD 31601,s. SD 31601 |
| Citation | 382 S.W.3d 193 |
| Parties | In the Interest of B.T.C., E.L.C., R.A.C., and A.B.C., children under seventeen years of age. Greene County Juvenile Office, Petitioner–Respondent, v. K.J.C., Respondent–Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
M. Elise Branyan Barker, for Appellant.
Brittany O'Brien, for Respondent.
Douglas Andrew Hosmer, for Minor Children.
Removal of a child from a parent's custody implicates the fundamental right of parents to rear their children free from government interference. A parent's right to rear her child is a fundamental liberty interest protected by the Constitution's guarantee of due process. A parent's liberty interest in the care, custody, and control of her child is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court. This interest does not evaporate simply because a parent has not been a model parent, or even because she has lost temporary custody of her child to the State.
In re J.M., 328 S.W.3d 466, 470 (Mo.App. E.D.2010) (internal citations omitted).
The minor children were taken into protective custody by a deputy juvenile officer on April 28, 2011. The petition filed pursuant to section 211.031.1 1 stated:
A. [M]other has made repeated allegations that the father is sexually and physically abusing the minor [children]. Two [Child Advocacy Center, “CAC”] interviews have been done of all of the children and no disclosures have been made. Multiple interviews have been done of the children by Children's Division workers and law enforcement and there has been no evidence to prove the allegations. [B.T.C.] reported that his mother takes pictures of his penis and the siblings disclosed the mother told them what to say for the interviews.
B. [Mother] removed [B.T.C.] from school and moved him and his siblings to a shelter in Polk County due to her concerns of the Father's reaction to the allegations. She then moved the children to Isabel's House.2 The children have been told not to tell their father where they are living and that they are staying in a “safe house”. The children have been repeatedly removed from school and daycare to be taken to doctor's appointments and interviews.
C. The parents have been going through a divorce since 2009, since they separated there have been ten reports to Children's Division with allegations of abuse by the father. Prior to separation there were not any reports.
D. The father has taken no action to remove the children from their mother's care. The father is either unwilling or unable to protect the children.
At the time that custody was taken, B.T.C. was six years old, E.L.C. was five years old, and R.A.C. and A.B.C. were three years old. All four children lived primarily with K.J.C. (“Mother”) and had parenting time with H.O.C. (“Father”), according to a court ordered parenting plan.
At the adjudication hearing on June 23, 2011, the court found that the children were “in need of the care, protection and services of the Court”; it then immediately entered orders and judgments taking “jurisdiction” 3 of the children after finding “clear, cogent, and convincing evidence that the allegations contained [in] the Petition[s] filed by the Juvenile Office are true and that the juvenile[s] come[ ] and/or continue[ ] to come within the provisions of section 211.031.1(1) RSMo.” The court provided no further findings. At that time, the orders and judgments noted that, “[j]urisdiction is taken disposition continued so the Court can review all evidence [.]” Subsequently, the court entered revised orders and judgments on June 28, 2011. Again, the court found that the minor children “come[ ] and/or continue[ ] to come within the provisions of § 211.031.1(1) RSMo” and that:
[r]emoval of the juvenile[s] from the juvenile[s'] home was necessary to protect the juvenile[s] and further efforts could not have prevented or shortened the separation of the family because: Mother emotionally abus[ed] the children, father had no legal ability to protect the children and had not taken steps to do so prior the children coming into care.
(emphasis added). The court further found that services offered to Mother did not enable the return of the juveniles to her home and “return to the home would be contrary to the welfare of the minor child[ren] because: Mother denies that she has had any inappropriate behavior, [and the] safety of the children could not be assured in her care.”
On appeal, Mother claims the trial court erred in finding that it has “jurisdiction” over the children, pursuant to section 211.031.1(1). 4 We agree and reverse the finding that it was proper for the juvenile court to take “jurisdiction” of the minor children and the judgments removing the juveniles from Mother's home.
“Our standard of review for decisions in juvenile proceedings is the same as for any court-tried civil case.” In re T.B.L.T., 367 S.W.3d 663, 664 (Mo.App. E.D.2012). Therefore, as in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), this Court will affirm the trial court's judgment unless there is no substantial evidence to support it, the decision is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 665. “The facts, and the reasonable inferences from the facts, are viewed in the light most favorable to the decision of the trial court.” In re N.J.B., 327 S.W.3d at 535.
Section 211.031 provides, in part:
[T]he juvenile court or the family court ... shall have exclusive original jurisdiction in proceedings:
(1) Involving any child or person seventeen years of age who may be a resident of or found within the county and who is alleged to be in need of care and treatment because:
(a) The parents, or other persons legally responsible for the care and support of the child or person seventeen years of age, neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his or her well-being; [or]
(b) The child or person seventeen years of age is otherwise without proper care, custody or support[.]
Section 211.031.1. “To assert jurisdiction, the lower court must find clear and convincing evidence that the child needs care because the parent has neglected to provide the care necessary for the child's well-being.” In re T.B.L.T., 367 S.W.3d at 665. “ ‘Evidence is clear, cogent and convincing when it instantly tilts the scales in the affirmative when weighed against the evidence in opposition and the fact finder's mind is left with an abiding conviction that the evidence is true.’ ” In re N.J.B., 327 S.W.3d at 537 (quoting In re A.M.C., 983 S.W.2d 635, 637 (Mo.App. S.D.1999)). “The clear, cogent and convincing standard is more stringent than that of ‘preponderance of the evidence.’ ” In re A.M.C., 983 S.W.2d at 637(quoting Estate of Cates, 973 S.W.2d 909, 915 (Mo.App. W.D.1998)); see also Osborn v. Boatmen's Nat'l Bank of St. Louis, 811 S.W.2d 431, 435 (Mo.App. E.D.1991).
Because Mother is challenging whether substantial evidence supports the granting of the judgments based on the filed Petitions, for ease of discussion we shall take each of the allegations in the order given in the Petitions.
A. [1] THE MOTHER HAS MADE REPEATED ALLEGATIONS THAT THE FATHER IS SEXUALLY AND PHYSICALLY ABUSING THE [MINOR CHILDREN].
The Petitions claim that “mother made repeated allegations.” The Investigative Court Summary (“ICS”) prepared by the Division of Children's Services (“Children's Services”) and the testimony at trial indicated that nine 5 reports have been made with Children's Services since Mother and Father separated.
August 3, 2009: Two hotlines are listed on the ICS on this date, both involving allegations of an incident at B.T.C.'s daycare, including that B.T.C. had been the victim of sexual abuse by another child while he was at the Developmental Center of the Ozarks and that B.T.C. was neglected by a teacher at the Developmental Center of the Ozarks when the teacher did not properly supervise him. The inference at trial was that the hotlines were made by a mandated reporter. It is not clear if there was a disposition on the first hotline; however, the allegation of neglect due to lack of supervision was determined to be unsubstantiated.
January 20, 2010: A mandated report referral 6 was received alleging domestic violence by Father, who was supposedly not taking his medication and was verbally abusive to Mother. The call was made by a mandated reporter, not by Mother, and the family refused services. There is no dispute in the record that the allegation was true. Father admitted to not taking his medication and the verbal confrontation occurred in front of a church member.
January 27, 2010: A mandated report referral was received regarding behavioral issues with B.T.C. at school. Again, it was made by a mandated reporter,7 not by Mother, and services were refused.
February 4, 2010: A family assessment was received after Mother had gone to the school and reported that Father had a carload of guns, including an AK–47, that he had threatened Mother and the children, and that he was off his medication. It was unclear who made this report. It was closed as “Family Assessment no services needed[.]”
June 28, 2010: A family assessment was received alleging that B.T.C. had a bruise on his back the size of a quarter and that Father had beaten him. It is unclear who made the call. It is unknown if services were offered or given.
September 6, 2010: An investigation was received due to A.B.C. having burns from the top of her bottom to her labia. It is unclear who made the call, but A.B.C. was taken to the hospital and someone there would have been required to call as a mandated reporter. The evidence at trial disclosed that A.B.C., at age three, suffered serious burns on her bottom while visiting at Father's...
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