C.A.D., In re

• Decision Date: 30 June 1999
• Docket Number: No. WD,WD
• Citation: 995 S.W.2d 21
• Parties: In the Interest of: C.A.D. Plaintiff, Missouri Department of Mental Health, Appellant, v. Juvenile Officer, Respondent. 55872.
• Court: Missouri Court of Appeals

Page 21

995 S.W.2d 21

In the Interest of: C.A.D. Plaintiff,

Missouri Department of Mental Health, Appellant, v. Juvenile Officer, Respondent.

No. WD 55872.

Missouri Court of Appeals,

Western District.

June 30, 1999.

Susan Ford Robertson, Guardian ad Litem, St. Louis, for plaintiff.

Jeremiah W. (Jay) Nixon, Atty. Gen., Beth S. Riggert, Asst. Atty. Gen., Jefferson City, for appellant.

Elizabeth K. Magee, Columbia, for respondent.

Before JOSEPH M. ELLIS, Presiding Judge, HAROLD L. LOWENSTEIN, Judge and VICTOR C. HOWARD, Judge.

ELLIS, Judge.

The Missouri Department of Mental Health ¹ (hereinafter "the Department") appeals from a judgment from the Boone County Family Court awarding legal custody of C.A.D. to the Department.

C.A.D., a twelve-year-old boy, began receiving mental health services at age five. C.A.D.'s parents separated in 1987 and divorced in 1989. Since that time, C.A.D. and his older sister have lived with their mother and her male companion. The father died in February 1998. C.A.D. has a history of aggressive and violent behavior, dating back to 1991.

In July 1991, C.A.D. was hospitalized at the Children's Hospital of St. Louis for two weeks where he was diagnosed with Oppositional Defiant Disorder and Attention Deficit Hyperactivity Disorder. In early August 1991, after C.A.D. began to act aggressively toward family members, his family began participating in Families First Intervention. ² In 1994, C.A.D.'s case was transferred from the Child Development Unit to the Mid-Missouri Mental Health Center's Children's Outpatient Unit. As a result of continued behavioral problems, C.A.D. began Child Day Treatment in December 1994 and remained in the program until May 1996. At that time, C.A.D. returned home and resumed his outpatient care.

In August 1996, C.A.D. allegedly committed three counts of third degree misdemeanor assault in violation of § 565.070. ³ In response, the juvenile officer filed a petition with the family court to make C.A.D. a ward of the Court in the custody of the mother and under the supervision of the juvenile officer. On October 23, 1996, C.A.D. ingested several prescription medications in an apparent suicide attempt. Later that day, C.A.D. stood inside a ring of gasoline, which he ignited to prevent rescue personnel from reaching him. The next day, the family court ordered C.A.D. to undergo a mental evaluation, pursuant to § 211.202. C.A.D. was admitted to the Mid-Missouri Mental Health Center (hereinafter "MMHC") and was released into therapeutic foster care on November 22, 1996. On the day of his release, C.A.D. was found to be within the jurisdiction of the family court pursuant to § 211.031.1(3) ⁴. After C.A.D. made a successful adjustment to his new school, his mother scheduled an Individual Education Plan meeting to discuss C.A.D.'s possible return to his former school. Based on the positive reports from his foster home, personnel from C.A.D.'s former school appeared receptive to his return. In hopes of having her son return home, C.A.D.'s mother cooperated with his counselors by developing a behavioral chart for him and adjusting her schedule to provide more parental supervision.

On January 31, 1997, Ed Guinn, the guardian ad litem, filed a motion for a change of placement. On February 7, 1997, the family court ordered that C.A.D. be placed with his mother for a sixty-day trial home placement. During that time, the Department continued to provide case management services. On two occasions, the family court reviewed the trial home placement and extended the home placement for another sixty days with continued individual and family therapy. The court order also required C.A.D. to be accompanied throughout the school day by either his mother or an employee of the Department.

In September 1997, C.A.D. committed third degree misdemeanor assault of a law enforcement officer in violation of § 565.083. As a result of this offense and disruptive classroom behavior, the juvenile officer filed a motion requesting that the court order C.A.D. to be placed in the Department's custody for placement in residential or therapeutic foster care. On December 17, 1997, C.A.D. had to be physically restrained after threatening to kill one of his teachers and commit suicide. C.A.D. was admitted to in-patient hospitalization for one week. On December 30, 1997, the juvenile officer petitioned the family court to place C.A.D. in in-patient hospitalization under the supervision of the Department. Following a one-week hospitalization C.A.D. was placed with his mother. C.A.D. remained with his mother until January 22, 1998, when the family court placed C.A.D. in the custody of the Department for placement in residential care. C.A.D. was also admitted to the MMHC for in-patient treatment. During a recess at his hearing, C.A.D. assaulted two security guards in an attempt to flee the courthouse. On March 9, 1998, C.A.D. was placed in therapeutic foster care and continued the day treatment program at MMHC. On March 31, C.A.D. was discharged from foster care and returned home.

At the April 17, 1998 rehearing, the Department supported the mother's custody claim. The juvenile officer favored the Department maintaining custody of C.A.D. On April 17, 1998, the family court ordered C.A.D. to remain in the Department's custody and supervision and scheduled a post dispositional review hearing for August 10, 1998. This appeal follows.

The Department raises two points on appeal. In its first point, the Department alleges that the trial court erred in giving the Department legal custody of C.A.D., since there is no statutory authority to award the Department legal custody of a child. Second, the Department asserts the trial court erred in awarding legal custody of C.A.D. to the Department because there was no substantial evidence to support such a transfer.

Before addressing the merits, we must take up two procedural matters. After this appeal was filed, this court informed the parties that it would allow the appeal to proceed, but specifically requested that the briefs address the issue of whether the Family Court's order was in fact final and appealable, even though not titled a judgment. The Department has fully briefed the issue and the juvenile officer agrees with the Department's analysis. Secondly, prior to this case being taken under submission, the juvenile officer of Boone County filed a Motion to Dismiss the Appeal for mootness. The Motion was taken with the case.

We first consider whether the Family Court's order is appealable. We raised the issue sua sponte because of our Supreme Court's decision in City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo. banc 1997). In Hughes, the Court addressed the right of appeal granted by § 512.020, which provides for an appeal from "any judgment of any trial court in any civil cause ...." The Court noted that under this section a final "judgment" is a prerequisite to appellate review. Id. at 852. It then pointed out that Rule 74.01(a) provides that "[a] judgment is entered when a writing signed by the judge and denominated 'judgment' is filed." Id. at 853 (emphasis in original) (quoting Rule 74.01(a)). From this analysis, the Court went on to hold that, for a writing to be an appealable judgment pursuant to § 512.020, it must be signed by a judge and denominated a judgment, either in the heading or in some other manner which makes it clear that "the document or entry is being 'called' a 'judgment' by the trial court." Id.

Prior to submission of the instant appeal, we handed down our decision in In re M.P.W., 983 S.W.2d 593 (Mo.App. W.D. 1999). In that case, relying on State v. Reber, 976 S.W.2d 450 (Mo. banc 1998), discussed infra, we held that the denomination requirement of Rule 74.01(a) was inconsistent with Juvenile Procedure Form 128.14, and comparable forms adopted by our Supreme Court, for dispositional orders in juvenile cases, and that such orders are appealable even if not denominated a judgment. In re M.P.W., at 596. M.P.W. involved a 1995 juvenile court "order" patterned after Juvenile Procedure Form 128.14 for dispositional orders. The form did not include any reference to the word "judgment." The Juvenile Procedure Forms were expanded, renumbered and amended effective January 1, 1999, limiting the extent of our holding in M.P.W. Moreover, while the order in the case sub judice was entered prior to January 1, 1999, it was not based on one of the Forms contained in Rule 128, nor did it contain the phrase "ordered, adjudged and decreed" which we found meaningful in M.P.W. As a result, M.P.W. is distinguishable and not controlling.

Subsequently, but still prior to submission of this case, the Southern District of this court dismissed the appeal in In the Interest of J.W.P., 986 S.W.2d 198 (Mo.App. S.D. 1999). In that case, the parents of a child appealed an order of the juvenile court finding the child to be within its jurisdiction and placing the child in the custody of the Division of Family Services. The Southern District, sua sponte, raised the question whether the order appealed from was a final appealable judgment in light of Rule 74.01(a) and Hughes because it was not signed by a judge and not denominated a "judgment." The court granted the parties an opportunity to show cause why the appeal should not be dismissed. The mother did not file a response, and the father, although filing a response, did not address the failure of the juvenile court's order to meet the requirements of Rule 74.01(a). Addressing the issues, the court noted that in In the Interest of D.J.B., 704 S.W.2d 217 (Mo. banc 1986), our Supreme Court declared that the Rules of Civil Procedure generally apply to juvenile proceedings. In the Interest of J.W.P., at 200. The court went on to state that it "infer[red] from D.J.B. that the Supreme Court would hold Rule 74.01(a) applies to adjudications of a juvenile court like the one appealed from here. Because the...