C, In re

• Decision Date: 09 June 1958
• Docket Number: No. 7689,7689
• Parties: In re Interest of Ronald C_____, a child under 17 years of age.
• Court: Missouri Court of Appeals

Page 756

314 S.W.2d 756

In re Interest of Ronald C_____, a child under 17 years of age.

No. 7689.

Springfield Court of Appeals, Missouri.

June 9, 1958.

William C. Myers, Jr., Pros. Atty., and Robert Warden, Asst. Pros. Atty., Joplin, for the State.

Max Patten, Joplin, for the child.

STONE, Presiding Judge.

In this statutory proceeding under our new Juvenile Act [Sections 211.011 to 211.431, 1957 cumulative pocket part to 12 V.A.M.S.; Laws of 1957, pp. 642-659], Ronald C_____, now eight years of age, appeals from the judgment of the juvenile court entered on September 17, 1957, which found that Ronald was within the applicable provisions of Section 211.031 and committed him to the custody of Big Brothers, Inc., until further order of the court. Section 211.181. ¹ Ronald is one of four minor children born of the marriage of Dillard and Irene on June 6, 1940. Although few details are supplied, the transcript on appeal adequately demonstrates that the marital life of the parents was turbulent and tempestuous, and that it was punctuated with numerous separations. A major, if not the principal, cause of the parents' difficulties was Dillard's alcoholic addiction--an addiction which made Dillard well-known to the police, resulted (as Irene said) in his use of abusive language and his threatening both her and his mother, and culminated within the month prior to the hearing in such degrading and shameful conduct by Dillard in the home of his own mother that she was driven to the humiliating experience of calling the police because, although Dillard, her only child, 'didn't strike me or hit me or anything, * he acted like he might.'

Both Charles (the oldest of the four children born to Dillard and Irene) and Ronald had lived in the home of their paternal grandmother, Mrs. C_____, for several years prior to 1957. Charles, who had been adopted by Mrs. C_____ some four or five years previously, was committed to the Boonville Training School for Boys during August, 1957. He was then sixteen years of age. One of the juvenile officers said that Charles had 'admitted some burglaries' and that Dillard, his father, had admitted 'having concealed some loot that Charles had obtained through a burglary.' Dillard had lived 'off and on' at the home of his mother, Mrs. C_____, 'during the whole seventeen years' of his marriage with Irene; and, after Dillard and Irene separated in March, 1957, when some (unexplained) 'trouble came up over' Patricia (Ronald's older sister whose exact age is not given), Dillard had lived in his mother's home until the night of August 18, 1957, when he took Patricia from Big Brothers, Inc., and disappeared. Neither Dillard nor Patricia had been found by the authorities at the time of the hearing as to Ronald on September 10, 1957.

In March, 1955, an information had been filed in the juvenile court charging that Patricia, Ronald (then five years old) and Linda (then nine months old) were neglected children. Following conferences and hearings, an order was made 'by consent of all the parties' leaving Patricia and Linda in the custody of their mother, Irene, 'under the supervision of the child welfare office,' and leaving Ronald in the custody of his grandmother, Mrs. C_____, with whom he had been living 'since he was a little baby two or three months old.' Although there was no formal order or finding in 1955 that Ronald was a 'neglected child' within the then statutory definition of that term [Section 211.010(2), RSMo 1949, 12 V.A.M.S.], there were 'subsequent hearings concerning each of the children.' The nature and extent of such supervision (if any) as was exercised with respect to Ronald are not disclosed in the record here presented, but Mrs. C_____ readily admitted at the hearing that, while the juvenile judge had been 'working with' her and Charles, she had been 'warned and required to keep Dillard away from (her) home' because he 'was a bad influence' on the children.

The petition filed in September, 1957, charged, and the court found, that Ronald was 'without proper care and custody' and that 'the behavior, environment and associations of said child are injurious to his welfare.' See Section 211.031. Although the juvenile officers thought and the court also found that Mrs. C_____ 'fails to properly discipline' Ronald and that she 'nags and complains at said child constantly,' the record taken in its entirety persuasively demonstrates that the primary and principal reason for the court's judgment was that, as the court expressly found, Mrs. C_____ 'permits said child to associate with persons of ill repute, to-wit, Dillard C_____.' For, immediately after overruling Ronald's motion for new trial on October 16, 1957, the court modified the original judgment of September 17, 1957, by releasing Ronald from Big Brothers, Inc., and 'placing him in the care and custody of his grandmother, Mrs. C_____, under the supervision of the Department of Welfare and upon condition that he not be permitted to associate with Dillard C_____.'

The spirited defense of counsel at the hearing obviously was motivated by Mrs. C_____ ('heartbroken and what mother wouldn't be'), torn between a mother's fierce loyalty inspired by unfathomable love for an unworthy son whom she nevertheless defended as having 'tried to do better' and a grandmother's unswerving devotion to a winsome child whose care had become 'my life.' But, without joining in the cold condemnation of Mrs. C_____ freely expressed by the officers and obviously engendered by the failure of Mrs. C_____ to keep the promise extracted of her to become an informer against her own son after his disappearance with Patricia in August, 1957, it is nevertheless convincingly clear to us that Dillard had been indeed 'a bad influence' on his children, that Mrs. C_____ had failed to heed the sound admonition that he be not allowed to associate with the children in her home, and that Ronald's association with Dillard necessarily would have been injurious to Ronald's welfare. So, we are constrained to conclude that the conscientious juvenile judge did not err in his judgment that Ronald was within the applicable provisions of Section 211.031.

In determining this appeal on its merits, we have passed preliminary questions which, but for the compelling consideration that the welfare of an innocent child is involved and the subsidiary consideration that this is a case of first impression under our new Juvenile Act, might have prompted us to dismiss this appeal. In a juvenile proceeding (as in other cases), the right of appeal is purely statutory and at least substantial compliance with the applicable statute is required. State v. Jahnke, 221 Mo.App. 366, 273 S.W. 155. Section 211.261 provides that '(a)n appeal shall be allowed to the child from any final judgment, order or decree made under the provisions of this chapter and may be taken on the part of the child by its parent, guardian, legal custodian, spouse, relative or next friend.' Similar language in a predecessor statute ² was paraphrased in State ex rel. Killoran v. Calhoun, 201 Mo.App. 374, 379, 211 S.W. 109, 110, as meaning 'that an appeal may be allowed to the child * * * by a guardian, by either parent, by previous custodian, or by any person within the fourth degree of kindred of the child.' The Juvenile Act being a complete law within itself dealing with minors under the age of seventeen years, ³ we think that Section 211.261 contemplates, and should be construed as requiring, that any appeal thereunder be taken on behalf of the child by some person standing in one of the specified relationships. That seems to have been the practice followed by the bar generally ⁴ and by Ronald's attorney in a prior appeal taken on behalf of other minors. State v. Hyman, Mo.App., 230 S.W.2d 504, 506. Of course, an eight-year old child, such as Ronald, is not sui juris and, in fact as well as in law, would be incapable of reaching an informed and logical conclusion as to whether he needed legal counsel or, if so, as to whom he should retain or, in the event of a hearing, as to whether he had been aggrieved by the judgment and should appeal. In the instant case, Ronald is the sole appellant and the notice of appeal is signed by the 'attorney for appellant.'

The notice of appeal reads: 'Notice is hereby given that Ronald C_____ above-named, hereby appeallant (sic) to the Springfield Court of Missouri from the judgment and order overruling Motion for New Trial entered in this action on the September 19, 1957 and overruling Motion on Oct 16, 1957.' The judgment in this proceeding was entered on September 17, 1957; and, since the appellate courts have pointed out from time to time over a period of twelve years that an appeal such as this is properly taken...