D.G.N. v. S.M., 66650

• Decision Date: 25 June 1985
• Docket Number: No. 66650,66650
• Citation: 691 S.W.2d 909
• Parties: In the Interest of D.G.N., Jr., Respondent, v. S.M., Natural Mother, Appellant.
• Court: Missouri Supreme Court

Page 909

691 S.W.2d 909

In the Interest of D.G.N., Jr., Respondent, v. S.M., Natural Mother, Appellant.

No. 66650.

Supreme Court of Missouri,

En Banc.

June 25, 1985.

As Modified June 28, 1985.

Hilda N. Petri, Columbia, for appellant.

Darwin A. Hindman, Jr., Columbia, for respondent.

WELLIVER, Judge.

Appellant, the natural mother of D.G.N., Jr., appeals from the order of the juvenile court terminating her parental rights to D.G.N., Jr. ¹ The termination petition was brought pursuant to § 211.447.2(2)(e), RSMo. as amended 1982, which allows termination of parental rights to a child for serious injury and abuse to a sibling. Hearing on the petition was held in Boone County Circuit Court in April of 1983. The court terminated appellant's parental rights. The Court of Appeals, Western District, held that it was in the best interest of the child that parental rights be terminated, but the Court did not believe that the prior abuse of older siblings was sufficient under the statute to justify termination of the parental rights to a child not in esse at the time of the abuse to the siblings. We transferred the case and consider the matter as on original appeal. Mo. Const. art. V, § 10. We affirm.

The incidents of abuse and injury to appellant's children J.M. and C.M. served as the basis for bringing this proceeding to terminate appellant's parental rights to her natural son D.G.N., Jr. The court of appeals having clearly, concisely and fairly described the events, substantial portions of their statement of facts are used without quotation marks. The mother and D.G.N., Sr. lived together with her two children by another father. The infant, D.G.N., Jr., was not yet born. The evidence indicates that after the mother moved in with D.G.N., Sr. representatives of Family Services began visiting her to investigate complaints of child neglect. These complaints varied in severity, ranging from allegations that she fed the girl sour milk, that the boy was left too long in wet pants, that both children were unattended, to complaints of faded bruises on the legs of the boy, bruises on his face, a swollen finger and other such incidents. The mother offered innocent explanations for each. Then, in July of 1980, the two adults left town for the night and entrusted the children with babysitters. The babysitters noticed that the boy could not urinate and that his groin was red and swollen. They took the boy and his sister to the hospital. After treatment, the children were released into the custody of their natural father, but shortly thereafter he relinquished them back to appellant. The complaints of child neglect and abuse, along with the visits from the representatives of Family Services, continued.

On January 15, 1981, the Division of Family Services obtained a warrant and with the aid of the police took the children from the mother and brought them to the Pulaski County Hospital for emergency medical treatment. The hospital suspected child abuse and referred the infants to the University of Missouri-Columbia Health Services Center. The officer in attendance at the hospital took photographs of the injured parts of the body of the boy and girl, and these representations were received in evidence and are a part of the file before this Court. These photographs depict very severe burns on the genitalia, thighs, lower buttocks and arm of the boy, and deep burns on the genitals and feet of the girl.

The children were examined and treated by a burn expert at the Health Center. He found both children small for their age. The boy was two and one-half years old, but bore the weight of a twelve-month-old--well below the fifth percentile. The girl was also below the fifth percentile in weight, and she was severely off scale for normal development.

An examination on January 17, 1981 of the mouth of the boy disclosed that it was unduly red and the tongue was glossy and swollen with ulcers around the corners of the mouth--indicia of a very severe malnutrition and vitamin deficiency. Further examination of the boy disclosed severe, full thickness [third-degree] burns on the scrotum and penis. A split thickness skin graft was required. The wounds were surrounded by dead tissue infected with bacteria. The boy suffered from a lung infection and fever as a consequence of the burns. The boy also displayed a deeply imprinted grillwork or tic-tac-toe burn on the right buttock. The wound was slightly infected, but healed without the necessity of a graft. The left buttock also bore scars. Additionally, the examiner found that the left third finger of the boy was infected and swollen from some sort of blow. The boy also displayed bruises on the forehead and ear.

The girl suffered from deep partial thickness burns on the tops of both feet. These wounds healed without the need for a graft. They were infected, however, from want of attention and she, too, suffered from a lung infection and fever. The child also displayed an old scar on the inner thigh, a bruised left cheek and some bruises on the right buttock. The examiner acknowledged that the residual scars to the pubic area could represent a serious prolonged, unattended diaper rash.

An examining doctor concluded that the wounds and condition of malnutrition, as well as the general psychological misapprehension displayed by the children, were results of parental neglect. The malnourishment was simply from want of food. This point was strengthened by the evidence that the children recovered by regular feedings at the hospital. The redness around the mouth was also an indicia of malnutrition, evident for any parent to notice. In the course of the treatment, the children were withdrawn and did not react normally to other people. The boy was fearful of being held and cuddled. The doctor concluded that the scars on the children were permanent disfigurements. The injuries he examined and treated were very serious, and had they not received attention might have caused the loss of life. In all candor, this Court was struck by the serious injuries these two children sustained.

Although the mother virtually admitted the neglect, she denied the abuse and sought to explain these events. Suffice it to say that her explanations were incompatible with the conditions found by the doctor. Both the mother and D.G.N., Sr. plead guilty to charges of second degree assault for the abuse of the two children, J.M. and C.M. The adjudication of criminal abuse on the pleas was entered on December 22, 1981, and each was sentenced to a term of five years. Appellant and D.G.N., Sr. were married on August 30, 1982, but then divorced on February 14, 1983. While she was serving her sentence, appellant gave birth to her son D.G.N., Jr. on January 22, 1982. On January 27, 1982, the Juvenile Officer of Boone County filed a petition seeking transfer of custody of D.G.N., Jr. The child was ordered placed in the custody of the Department of Family Services. In March appellant was released on parole. Then, on June 17, 1982, the Juvenile Officer filed a petition to terminate appellant's parental rights to D.G.N., Jr.

The Legal Assistant for the Juvenile Office at Boone County initiated the termination proceeding pursuant to § 211.447.2(2)(e), RSMo. This section provides:

The juvenile court may, upon a petition filed by the juvenile officer under this section, terminate the rights of parent to a child if it finds that such termination is in the best interest of the child and one or more of the following conditions are found to exist:

(2) When it appears by clear, cogent and convincing evidence that one or more of the following conditions exist:

(e) The parent has knowingly committed or knowingly permitted a single incident of life threatening or gravely disabling injury or disfigurement of the child or serious injury or death of a sibling due to parental abuse or willful and wanton neglect....

In order to terminate the parental rights under this provision, the State must prove by clear, cogent and convincing evidence the abuse to the siblings. The State must also establish by substantial evidence that termination of parental rights would be in the best interest of the child.

The mother argues that however relevant the acts of abuse upon J.L.M. and C.D.M. may have been to terminate the parental right as to those children, they were not relevant in a proceeding to terminate the right to a child not yet born--a child not in esse at the time of the abuse and the injury to a sibling. She contends that the State may only terminate parental rights on the basis of conditions that exist in the home at the time of the hearing.

We believe the mother's argument overlooks the rationale for terminating parental rights pursuant to § 211.447.2(2)(e). The past abuse of another sibling is evidence of a home environment that is currently dangerous to the child for whom termination is sought. Judge Higgins, in a slightly different context, aptly described the underlying rationale:

The proposition that prior abuse of another child is a prima facie case of imminent danger to a sibling in the same circumstances to justify intervention by the court for removal of such child from his environment has been recognized and sustained in other jurisdictions. Cases such as this of maltreatment of a prior child present one of the few situations in which a juvenile court, and social agencies at its instance, can be alerted to take before-the-fact protective measures. The importance of court intervention in such cases, even though no damage to the second infant is manifest, lies in the knowledge that neglect or abuse by a parent with a propensity toward it is often triggered by the child's growth.

In re A.A., 533 S.W.2d 681, 684 (Mo.App.1976) (citations omitted). Judge Billings similarly observed that "past conditions, conduct and attitudes which may color, indicate, clarify or exist constitute the larger concept of the term 'present conditions.' "...