D.D.H., In Interest of

• Court: Missouri Court of Appeals
• Writing for the Court: FLANIGAN
• Citation: D.D.H., In Interest of, 875 S.W.2d 184 (Mo. App. 1994)
• Decision Date: 22 March 1994
• Docket Number: No. 18764,18764
• Parties: In the Interest of D.D.H. STATE of Missouri, Petitioner-Respondent, v. GLENDA P., Respondent-Appellant.

Page 184

875 S.W.2d 184

In the Interest of D.D.H STATE of Missouri, Petitioner-Respondent, v. GLENDA P., Respondent-Appellant.

No. 18764.

Missouri Court of Appeals,

Southern District,

Division Two.

March 22, 1994.

Motion for Rehearing or Transfer

Denied April 12, 1994.

Application to Transfer Denied May 26, 1994.

James R. Sharp, Wear, Nelms & Sharp, Betty A. Pace, Springfield, for respondent-appellant.

Kay A. Van Pelt, F. Richard Van Pelt, Van Pelt & Van Pelt, P.C., Springfield, for petitioner-respondent.

FLANIGAN, Presiding Judge.

On January 28, 1993, Glenda P., age 21, gave birth to a son, D.D.H. ("D"). On March 10, 1993, the county juvenile office filed, in the Juvenile Division of the Circuit Court of Greene County, a petition alleging that D was in need of care and treatment and the services of the court. The court issued an order placing D in the temporary legal custody of the juvenile authorities and appointed a guardian ad litem for the child. On April 13, 1993, following an evidentiary hearing, the court entered an "Order for Temporary Legal Custody," finding that D was within the court's jurisdiction under § 211.031.1(1), ¹ that the allegations of the petition were true, and that D was in need of the care, protection and services of the court. The court ordered that D remain in the temporary legal custody of the Greene County Office of the Division of Family Services. Glenda appeals.

Section 211.031.1(1) reads, in pertinent part:

[T]he juvenile court ... shall have exclusive original jurisdiction in proceedings:

(1) Involving any child ... 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 ... neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his well-being; ...

(b) The child ... is otherwise without proper care, custody or support.

Glenda presents the following two points, which will be considered together:

1. The trial court erred in finding D to be within its jurisdiction under § 211.031.1(1) because there was no substantial evidence that Glenda neglected or refused to provide proper care for D or that D was otherwise without proper care in that: (a) at the time D was removed from the home, he was normal and healthy and there was no evidence that he was subjected to neglect or abuse while in the care of Glenda or the child's father with whom Glenda was living, and (b) Glenda was undergoing extensive counseling and utilizing services while she and the father had custody of D, thereby rectifying the conditions which had previously led to the removal of D's half-sibling from Glenda's care and Glenda's voluntary placement with her grandmother of another half-sibling of D.

2. Even if the trial court had jurisdiction over D, the order of removal was improper because there was no evidence that D was not able to be returned to the home, in that Glenda and the child's father were receiving counseling and parenting advice and aid from the juvenile authorities, and at the time of D's removal he was a normal healthy child who was not subjected to any form of abuse or neglect.

The judgment from which Glenda appeals, although a temporary order and subject to modification, is appealable. In Interest of M.D.S., 837 S.W.2d 338, 339 (Mo.App.1992). The judgment is reviewed pursuant to the standards established under Rule 73.01(c) and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The evidence and all reasonable inferences therefrom will be considered in the light most favorable to the trial court's order. In Interest of J.M.P., 669 S.W.2d 298 (Mo.App.1984); In re B.G.S., 636 S.W.2d 146, 148 (Mo.App.1982).

In a juvenile court hearing, the court, in the adjudicatory phase, determines if the evidence presented establishes that the child comes under juvenile court jurisdiction. If so, the court proceeds with the dispositional phase and receives evidence regarding the disposition or treatment that should be ordered for the juvenile. In re Interest of K.S., 856 S.W.2d 915, 916 (Mo.App.1993); Rule 119.02(a)(9).

The standard of proof in a hearing on a petition which alleges as a basis for jurisdiction that the child is in need of the care and protection of the juvenile court is clear and convincing evidence. In Interest of L.J.M.S., 844 S.W.2d 86, 92 (Mo.App.1992); In Interest of A.L.W., 773 S.W.2d 129, 131 (Mo.App.1989); Rule 117.05(b).

The evidence supports the adjudication of jurisdiction under the petition by proof clear and convincing that [the child is] in need of the care and protection of the juvenile court. It is not essential to such an adjudication that the court find the condition of neglect dangerous, but only that the parent failed to provide that minimum quality of care the community expects and tolerates.

In Interest of A.L.W., 773 S.W.2d at 132.

The finding of jurisdiction under § 211.031 need not be based on direct evidence. In Interest of W.J.D., 756 S.W.2d 191, 196. (Mo.App.1988). The trial court, functioning as a fact finder, may draw all reasonable inferences from the evidence presented to it and may base its findings upon such reasonable inferences. Id. The paramount consideration is the welfare of the child. C.R.K. v. H.J.K., 672 S.W.2d 696, 698 (Mo.App.1984); In re A.A., 533 S.W.2d 681, 684 (Mo.App.1976).

The petition of the juvenile officer alleged, in essence: D resided in Greene County with Glenda and D's father; D's welfare is endangered in that he is in a condition of potential abuse or neglect by the behavior of Glenda, in that Glenda, in October 1990, "agreed to the guardianship of her child [K, who was born February 28, 1990]"; On February 24, 1992, M, a sibling of D, was subjected to an act of physical abuse consisting of a spiral fracture of the right humerus when the sibling was under one year of age and in the custody of Glenda; Glenda has a pattern of abuse or neglect of children who are less than one year of age, and D would be subjected to some form of inappropriate care by Glenda.

At the evidentiary hearing of April 13, the juvenile officer and Glenda appeared in person and by counsel, and the guardian ad litem appeared. By stipulation, the court received into evidence certain investigative reports, the probate records in the guardianship of K, and the juvenile records in the abuse proceeding of M.

The record in the guardianship proceeding showed that K was born February 28, 1990. On July 19, 1990, K's maternal grandparents filed a petition to be appointed guardians. The court found that the natural father of K was unknown, that Glenda was the natural mother, and that Glenda was incapable of caring for K. Glenda signed a waiver of right to be appointed and consented to the appointment of petitioners as guardians.

The juvenile records reflected that Glenda had no explanation for the breaking of M's arm on February 23, 1992, when M was two months old. X-rays revealed a spiral fracture of the humerus. On May 14, 1992, after an evidentiary hearing, the court assumed jurisdiction of M under § 211.031.1(1). The evidence showed that Glenda began prostituting at age 15 and began using cocaine at age 16. M was placed in foster care.

Another exhibit showed that on February 23, 1992, M, in addition to the fracture of the humerus, had bruises on her face, her buttocks, and her spine. Glenda stated that the facial bruises were "from M sleeping on her hand." The admitting physician explained to Glenda that the facial bruises were not so caused. Glenda stated that the bruises on M's buttocks were birth marks. Records showed M had no Mongolia spots at birth. Glenda initially denied that she had broken M's arm. In December 1992, Glenda admitted to her therapist that she had caused the fracture. Glenda later made the same admission to social worker Vicki Music.

With regard to D, the juvenile officer introduced the records of Cox Medical Center showing that on March 13, 1993, D was admitted for "suspected child abuse." The record recited: "[D] is a two-month-old that was just taken away by D.F.S. from his mom for report of child abuse. Apparently somebody called and said that the mom was shaking the baby inappropriately and he has since been taken away from her care.... There are no bruises or other markings of any kind on the skin.... Although [D's] exam was normal today, this does not rule out child abuse as the exam can sometimes be normal with history of abuse. D has a small bump on forehead and behind ears."

Witnesses for the juvenile officer were G. Berschler, Norma Mashburn, and Vicki Music. Their testimony included the following:

G. Berschler: I am employed by the Ozark Area Community Action Corporation and I am the parent aide for Glenda. I was asked to go into the home a couple of weeks before D was born to teach Glenda parenting skills and bonding. Glenda would refer to the dog as her baby and the cat as the baby of D's father. Glenda referred to D as "it." They--Glenda and D's father--were not holding D while feeding him. I did not want them to prop the bottle. When D woke up crying, Glenda didn't give him a bottle. She gave him a pacifier which didn't satisfy him. When I suggested she give him a bottle, she delayed doing so for three or four minutes. When I went in on a Friday, D was hoarse and I asked Glenda if she had been letting D cry. Glenda said she let D cry "itself" to sleep on Wednesday. I told Glenda that children who aren't bonded are the ones who become serial killers and Glenda told me her personality was the same as a serial killer. I gave Glenda booklets on child care. I did not see a typical parent-child bond between Glenda and D. When I was there [on one occasion] the father was watching D, who was asleep on the couch. When he woke up, Glenda did not come to D. Glenda petted the dog and talked to the...