A.H., In Interest of, 21997

• Decision Date: 07 January 1998
• Docket Number: No. 21997,21997
• Citation: 963 S.W.2d 374
• Parties: In the Interest of A.H. and M.H. NEWTON COUNTY JUVENILE OFFICER, Petitioner-Respondent, v. E.H., Natural Father-Respondent, and S.H., Natural Mother-Appellant.
• Court: Missouri Court of Appeals

Page 374

963 S.W.2d 374

In the Interest of A.H. and M.H. NEWTON COUNTY JUVENILE OFFICER, Petitioner-Respondent, v. E.H., Natural Father-Respondent and S.H., Natural Mother-Appellant.

No. 21997.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 7, 1998.

Motion for Rehearing or Transfer

Denied Feb. 3, 1998.

Application for Transfer Denied

March 24, 1998.

Laurette Tedders, Canton, MI, for Appellant.

Glenn R. Gulick, Jr., Hershewe & Gulick, Joplin, for Natural Father-Respondent.

John S. Dolence, Joplin, for Newton County Juvenile Officer.

SHRUM, Judge.

This is a case brought under Missouri's juvenile code by the juvenile officer of Newton County, Missouri (Juvenile Officer). It involves two children, A.H. (born December 23, 1987) and M.H. (born September 15, 1990).

The case started February 27, 1995, when the trial court filed an "Order of Protective Custody" based on Juvenile Officer's allegation that the "children are experiencing emotional abuse caused by a continued pattern of the mother [falsely] telling [the children] their father has abused them." During a dispositional hearing that began September 4, 1996, the parties announced a settlement had been reached.

In open court and on the record, a guardian ad litem (G.A.L.) for A.H. and M.H recited the terms of the agreement as he understood them. Juvenile Officer agreed with the G.A.L.'s account of the settlement. Also, E.H. (Father) and S.H. (Mother) testified on the record about the settlement. Thereon, the trial court found "there is emotional abuse by [Mother], and the Court has jurisdiction." Continuing, the trial court stated: "The Court finds that the visits should be as per the stipulation of the parties, and will be fleshed out more fully in an order to be prepared and filed herein." Later, the trial court entered judgment per the "stipulated settlement."

On appeal, Mother charges that "[t]he trial court erred in accepting [the] alleged 'stipulation' to enter judgment[,]" assigning various reasons to support this claim of trial court error. We disagree. We find that Mother consented to entry of the judgment from which this appeal is attempted; consequently, she cannot appeal. We affirm.

DISCUSSION AND DECISION

The right to appeal in Missouri is statutory. For most civil actions, § 512.020 ¹ confers the right to appeal upon "[a]ny party to a suit aggrieved by any judgment of any trial court ...." (emphasis supplied). However, when a judgment is entered pursuant to an agreement of the parties, it cannot be appealed. See Hudson v. Hudson, 865 S.W.2d 405, 408 (Mo.App.1993). Parties are estopped or waive their right to appeal under § 512.020 when a judgment is entered at their request. Cook v. Jones, 887 S.W.2d 740, 741 (Mo.App.1994); Cheffey v. Cheffey, 821 S.W.2d 124, 125 (Mo.App.1991). This follows because a judgment entered pursuant to an agreement of the parties is not a judicial determination of rights. Cook, 887 S.W.2d at 741; Cheffey, 821 S.W.2d at 125. A party simply cannot be aggrieved by a judgment or an order regularly made with his or her express or implied consent; consequently, such a judgment cannot be appealed under § 512.020. See Richard v. Director of Revenue, 869 S.W.2d 913, 914 (Mo.App.1994); Foger v. Johnson, 362 S.W.2d 763, 765 (Mo.App.1962).

We hasten to note that Mother's right to appeal here is not conferred by § 512.020; rather § 211.261 of the juvenile code is implicated. See J.I.S. v. Waldon, 791 S.W.2d 379 (Mo.banc 1990). The term "aggrieved" as used in § 512.020 is not found in the juvenile code. Instead, § 211.261.1 gives a "parent" the right to appeal from any judgment under the juvenile code "which adversely affects him." See Rule 120.01(b). However, we find the phrase "adversely affected " synonymous with the word "aggrieved." See Estate of Fowler, 860 S.W.2d 380, 382 (Mo.App.1993). See also "aggrieved party," BLACK'S LAW DICTIONARY 65 (6th ed.1990). This is consistent with case law interpreting the word "aggrieved" as used in § 512.020 as meaning "suffering from an infringement or denial of legal rights." Farrell v. DeClue, 382 S.W.2d 462, 466 (Mo.App.1964).

Here, the trial court had the opportunity to hear extensive evidence from all parties and decide whether the stipulation was in the best interests of the children. This evidence included the testimony of two experts, Dr. Daniel and Dr. Noble, both of whom concluded that Mother continued to be emotionally abusive to her children. Both recommended that physical custody of the children remain with Father and that any contact with them by Mother be closely supervised. Facing the potential temporary loss of her visitation rights, Mother opted to retain some visitation privileges via a voluntary settlement rather than litigate the issues.

Under the peculiar facts of this case, the rule that disallows an appeal in a civil case when judgment is entered pursuant to an agreement of the parties applies to this appeal under § 211.261.1. This is particularly true because the judgment recites that Mother expressly agreed to "dismiss all pending appeals ... and further ... will not appeal the Judgment and Order entered in this cause." See Curtis v. Board of Police Comm'rs, 841 S.W.2d 259, 263 (Mo.App.1992).

Mother concedes in her brief what the record clearly shows, namely, that "[t]he proceedings [were] concluded by an alleged stipulation to further reduce Mother's visitation time." We further note that Mother makes no claim that the judgment entered on September 24 was not in conformity with the stipulated settlement. However, Mother's seventeenth point does complain that the trial court erred in accepting the stipulation. Accordingly, we must examine Mother's attempt to preserve a point of error involving the validity of the stipulation.

In this point, Mother first contends that the record reveals that she repeatedly stated she did not agree with nor understand the stipulation. In support of this part of Point XVII, Mother gives certain transcript references to her comments and testimony as the settlement was discussed. Some of Mother's transcript citations are to comments she made before she was placed under oath. Moreover, Mother provides only selective quotes from her sworn testimony. She omits many transcript references that support a different conclusion:

"Q. [by Mother's lawyer] And we've had a discussion with the Juvenile Officer and Guardian Ad Litem concerning a stipulated agreement that we've come to with regard to a modification of the visitation ... concerning your children; correct?

"A. [By Mother] We've come to a--

"Q. Yes?

"A. [By Mother] We've come to a[sic] agreement.

"Q. Yes. [S.]--

"A. I guess. An understanding or a condition. Accepted condition.

"Q. [S.], yes is good enough.

"A. Okay. Accepted condition. Okay."

Mother was cross-examined extensively by the Juvenile Officer's lawyer about the stipulation. Throughout, Mother argued about the factual basis underlying the agreement. For instance, Mother repeatedly questioned the expert's findings regarding the children, disputed their conclusions that she had abused them emotionally, and contended that the court should not rely on the opinions of experts Daniel and Noble. Yet, Mother also testified that she knew what facts led to the stipulation, understood the agreement, and agreed to honor it:

"MS. TEDDERS [Mother's lawyer] [S.], I think we've concluded our agreement.

....

"MR. PODLESKI [Juvenile Officer's lawyer] You--you understand that-- "A. [by Mother] I understand what I've heard. Okay. And--But I do not agree--

....

"Q.... You agree that you will honor the settlement that I have announced, and that your attorney has talked about today; is that correct?

"A. I agree--

"Q. You will honor that.

"A. --that I will--

"Q. You agree to honor that.

"A. I will honor that, but I do [not] accept it as right."

Mother's repeated protests that she did not accept the stipulation as "right" can reasonably be seen as no more than her disagreement with certain testimony and with critical expert evidence. There is ample evidence in this record to support the trial court's findings that Mother "fully [understood] and comprehend[ed] the terms and conditions of [the] stipulated settlement ... and ... agree[d] to abide by ... said stipulation." We reject Mother's argument to the contrary.

In another prong of Mother's seventeenth point she charges that "[t]he trial court erred in accepting an alleged 'stipulation' to enter judgment ... where the guardian ad litem and prosecutor threatened Mother they would terminate her parental rights if she didn't agree to a reduction in visits when Missouri law does not support such a threat...." ² Mother's argument does not refer to the transcript or other portion of the record on appeal to support this allegation. Our review of the record reveals no threats made by the G.A.L. or by the lawyer for the Juvenile Officer. Mother cannot support this claim; consequently, we reject it outright.

Mother's seventeenth point also maintains that the trial court erred in accepting the stipulation "where the trial court had denied Mother effective assistance of counsel during trial...." Mother presents this part of her point relied on without citation to relevant authority or explanation for its absence. Moreover, she confines her entire argument under Point XVII regarding ineffective assistance of counsel to the following:

"Mother should not be found to have agreed to the findings of emotional abuse ... where her attorney had advised the trial court that she could no longer effectively represent Mother for the reasons set forth above.... Further, mother's trial counsel could not effectively represent her during this trial, as previously set forth on the record...."

We note that our supreme court has not promulgated special rules for writing appellate briefs in juvenile cases. However, Rule 110.04 provides that the Rules of Civil Procedure (41-101) apply when...