C.S. v. Mo. Dep't of Soc. Servs.

Decision Date22 March 2016
Docket NumberWD 78800
Citation491 S.W.3d 636
Parties C.S., Appellant, v. Missouri Department of Social Services, Children's Division, Respondent.
CourtMissouri Court of Appeals

Stephen G. Mirakian, Kansas City, MO, Attorney for Appellant.

Chris Koster, Attorney General, Gary L. Gardner, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Before Division Two: Cynthia L. Martin, Presiding Judge, and Mark D. Pfeiffer and Karen King Mitchell

Karen King Mitchell, Judge

C.S. appeals the trial court's judgment upholding the Department of Social Services, Children's Division's (Division) determination that C.S. should be placed on the Central Registry.1 Because there is sufficient evidence for the trial court to have determined that C.S. sexually abused his adopted son, K.S.W., we affirm the trial court's judgment.2

Background3

In late 2003, when K.S.W. was ten years old, he came to live in C.S.'s home as a foster child with C.S. and his partner, D.W. C.S. and D.W. later adopted K.S.W. and his older brother in 2006. K.S.W.'s younger brother came to the home in January 2009.

Shortly after K.S.W. came to live in C.S.'s home in 2003, C.S. and D.W. learned that K.S.W. had a history of being abused by his biological parents, foster parents, and other foster children. K.S.W.'s biological father physically abused him, and his biological mother sexually abused him. C.S. and D.W. also learned that K.S.W. had been diagnosed with Reactive Attachment Disorder and Post Traumatic Stress Disorder. C.S. and D.W. placed K.S.W. in therapy with Dr. Sally Popper, who became the family's therapist.

During the time that K.S.W. lived with them, C.S. and D.W. would “cuddle” in bed with K.S.W. while nude. C.S. and D.W. stated that, during these cuddling sessions, there were always covers between them and a clothed K.S.W. In 2008, K.S.W. disclosed to Dr. Popper that he had felt C.S.'s erect penis rubbing against him during one or more of these sessions. C.S. discontinued cuddling with K.S.W. for a time, after Dr. Popper raised the issue with him, but resumed “cuddling” with K.S.W. when K.S.W. began “regressing and not doing well,” and having behavioral issues. C.S. indicated that, when he reinstituted “cuddle time,” he introduced new “precautions,” such as keeping a cover between himself and K.S.W.

In the summer of 2009, when K.S.W. was sixteen years old, C.S. and D.W. found K.S.W. making a bomb in his room out of gunpowder from firecrackers. K.S.W. had allegedly burned down a foster home before, so C.S. and D.W. sent K.S.W. to the Ozanam Treatment Center. K.S.W. would not return to C.S.'s home, because in December 2009, C.S. and D.W. sent K.S.W. to the Woodward Academy in Iowa for sex offender treatment.

Also in the summer of 2009, C.S. and K.S.W. went on a four- or five-day-long Katy Trail bike trip, when K.S.W. was on a pass from Ozanam. C.S. acknowledged that, during the trip, they stayed at bed and breakfasts, and they brought only the clothes they wore during the day, washed and dried their clothes at night, and put them on the next day. Because they brought no clothing to sleep in, they slept unclothed in the same bed, but they were separated by covers. One night during the trip, K.S.W. asked to cuddle, and they lay in bed with C.S.'s arms around K.S.W. C.S. stated that K.S.W. “might have felt something then. I don't know....”

While at Woodward, on September 22, 2010, when he was seventeen years old, K.S.W. disclosed that C.S. had sexually abused him. The Division received a report of K.S.W.'s allegations, and Rhonda Schilli, a Division employee, investigated the allegations of abuse, including interviewing C.S. on multiple occasions. Because there were other foster children living in the home, part of the Division's safety plan required C.S. to move out of the home and into what D.W. referred to as “a really nice RV” during the pendency of the investigation. The record is not entirely clear on when the safety plan ended, but C.S. appears to have moved back into the home in late December of 2010. C.S. claims that he was out of the home for ninety-one days.

At the Division's request, K.S.W. was interviewed at Woodward Academy.4 In his interview at the Woodward Academy, K.S.W. stated that when he cuddled with C.S. at their home, C.S. would have an erection approximately “every other time.” K.S.W. would feel C.S.'s erection rub against him, and K.S.W. would become uncomfortable and scoot away or change his position. K.S.W. stated that, on one occasion while cuddling when he was twelve or thirteen years old, K.S.W. woke up to find C.S. masturbating next to him while C.S. had his arm around K.S.W.

Also in his interview at the Woodward Academy, K.S.W. stated that, when he was eleven years old, C.S. showed him a website about masturbation, and C.S. talked about his own masturbation experiences. K.S.W. then asked C.S. if it was “humanly possible” to “give himself oral,” and C.S. talked to K.S.W. about that, too. On one occasion, K.S.W. claimed that he went to his room and attempted to “self-suck.” He stated that he was using a wall to bend his legs over, when C.S. came in and pushed K.S.W.'s legs down in an effort to help K.S.W. reach his penis with his mouth. At this point, K.S.W. claimed, C.S. said he had to “take care of business,” which K.S.W. understood to mean that C.S. meant he was going to masturbate. K.S.W. indicated that he then walked into C.S.'s room and saw C.S. masturbating.

Finally, K.S.W. discussed the biking trip when he was sixteen years old. K.S.W. confirmed that the only clothes C.S. and he took were the biking clothes on their backs. When they went to bed at night at the bed and breakfasts where they stayed, they were naked, and K.S.W. claimed to have awoken at one point to find C.S. masturbating next to him in bed.

On January 27, 2011, following its investigation, the Division issued a notice to C.S., indicating that the Division had determined that C.S. had sexually abused K.S.W.5 The notice indicated that K.S.W. had “described two incidents in which [C.S.] pressed his erect penis against [K.S.W.'s] body,” and “described one incident in which [C.S.] masturbated in [K.S.W.'s] presence while the two slept naked in the same bed.” The notice also stated that C.S. admitted cuddling with K.S.W. while C.S. was naked and “that, on some occasions, [C.S.] had erections while cuddle time was occurring.”

C.S. appealed the determination to the Child Abuse and Neglect Review Board (CANRB), which upheld the Division's determination. C.S. then filed for review in the Circuit Court of Jackson County.

At trial, Dr. Popper testified that K.S.W. could be defiant, antisocial, angry (especially at his adoptive parents), and that he considers himself dangerous. K.S.W.'s ability to bond and attach to others is limited, and he has been diagnosed with Reactive Attachment Disorder, Attention Deficit Hyperactivity Disorder, and a conduct disorder. Dr. Popper testified that it was appropriate for C.S. to cuddle K.S.W. because of his Reactive Attachment Disorder diagnosis, but she did not believe that C.S. had ever sexually abused K.S.W.

C.S. testified that he had never knowingly had an erection while cuddling with K.S.W., but that “yeah, you know, it's possible, it's physiology[,] erections happen,” and that he told both Schilli, in her September 24 interview of him, and Dr. Popper that “it's possible, it's physiology, erections happen.” C.S. testified that, if he were unclothed while cuddling with K.S.W. in bed, he was always separated from K.S.W. C.S. denied ever masturbating in K.S.W.'s presence.

C.S. testified that he did provide materials on masturbation to K.S.W., but claimed that the Division had screened the materials in advance. C.S. testified that, when he found K.S.W., clothed, with his legs bent over his head, he asked K.S.W. what he was doing, and K.S.W. said that he was “trying to see if I can reach my penis or something like that.” C.S. testified that he told K.S.W. to “put his back up against the wall and to put your legs down further and see if that works.” C.S. made similar admissions when interviewed by Dr. Popper and Schilli during the Division's investigation, and transcripts of those interviews were admitted into evidence at the de novo hearing. C.S. testified that he did not push K.S.W.'s legs down during this incident, or mention anything about masturbation, and that he immediately went downstairs to tell D.W. about what he had witnessed.

C.S. testified that he took K.S.W. on a bike trip, and that, on such trips, there is no room to bring extra clothes other than what the individual is wearing while riding. Therefore, C.S. and K.S.W. washed their clothes when they got to the room and allowed them to dry out overnight. They would individually shower and then remain in the room unclothed. C.S. and K.S.W. slept unclothed in the same bed, separated by covers. C.S. testified that, on one occasion during the trip, he and K.S.W. cuddled in bed unclothed but separated by covers, and that he did not touch K.S.W. with his penis.

K.S.W. did not testify at trial. But the trial court admitted, over C.S.'s objection, the video and transcript of K.S.W.'s interview at Woodward.

Following trial, the trial court reversed the Division's determination and ordered that C.S. be removed from the Central Registry because the Division had not completed its investigation and provided notice within certain statutory deadlines. Following an initial appeal, this court vacated the judgment at the request of the parties and remanded the matter to the trial court. On remand, the trial court found that C.S. had sexually abused K.S.W., determining that C.S.'s “misuse of physical affection, sleeping arrangements, therapy and providing sex education go beyond ‘bad parenting.’ C.S. timely appealed.

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