IN RE BMO

• Decision Date: 06 May 2010
• Docket Number: No. SD 29710.,SD 29710.
• Citation: 310 SW 3d 281
• Parties: In the Interest of B.M.O., K.W.J., and M.C.J., minors. Wayne County Juvenile Office, Petitioner-Respondent, v. S.A.J., Respondent-Appellant.
• Court: Missouri Court of Appeals

310 SW 3d 281

In the Interest of B.M.O., K.W.J., and M.C.J., minors.
Wayne County Juvenile Office, Petitioner-Respondent,
v.
S.A.J., Respondent-Appellant.

No. SD 29710.

Missouri Court of Appeals, Southern District, Division Two.

May 6, 2010.

310 SW 3d 284

Christopher L. Yarbro, Poplar Bluff, MO, for Appellant.

Christina L. Kime, Piedmont, MO, for Respondent Wayne County Juvenile Office.

Gary L. Gardner (No brief filed.), Jefferson City, MO, for Respondent Mo. Dept. of Social Services, Children's Div.

Cynthia A. Goforth, Piedmont, MO, for minors.

NANCY STEFFEN RAHMEYER, Judge.

Sherry Johnson ("Appellant") is the biological mother of B.M.O., K.W.J., and M.C.J.¹ Upon a finding of neglect and abuse, the Circuit Court of Wayne County entered its judgment terminating Appellant's parental rights on February 18, 2009, which she now appeals. Appellant filed a motion to strike certain items from the record, which was taken with the case. We deny the motion and affirm the judgment.

On June 22, 2005, the execution of a search warrant at the home of Appellant and her then-husband, Kenneth Johnson, uncovered evidence that Kenneth Johnson had sexually abused Appellant's children, two of whom were also his biological children.² The children were removed from the home and later placed in legal and physical custody of the Children's Division of the Missouri Department of Social Services ("the Division") after the Circuit Court of Wayne County found that: Appellant knew about, and participated in, the sexual abuse of her minor daughter on at least one occasion; knew or should have known about other instances of sexual abuse; and kept various items of drug paraphernalia in her bedroom.

The Division filed a petition for termination of parental rights, which was dismissed because the Division did not provide Appellant with the court ordered investigation and social study. Six months later, the Wayne County Juvenile Office ("Respondent") filed a petition

310 SW 3d 285

for termination of Appellant's parental rights, alleging: that the children were subjected to sexual abuse by Kenneth Johnson of which Appellant either knew or should have known; that Appellant suffered from a chemical dependency preventing her from providing the necessary care, custody, and control of her children; and that Appellant had continuously failed to provide the children with adequate food, shelter, and education. Over Appellant's objection, the court ordered the Division to complete an investigation and social study, and later set the cause for trial. At the termination trial, the trial court took judicial notice of Respondent's file, which included an affidavit of publication as to service upon the biological father of B.M.O., a transcript of the pre-hearing conference, the investigation and social study, and the order for the social study, over Appellant's objection to judicial notice of the social study

FACTS

Ralph Muzney, the Division case manager assigned to the children, testified as to his role in investigating the situation and drafting the study, and also concerning Appellant's continual contact with her children. Rhonda Allen, the foster parent with custody of K.W.J. and M.C.J., also testified regarding Appellant's correspondence with her children. Respondent offered a letter sent to B.M.O. from one Michael Miller, an inmate and apparent acquaintance of Appellant, to demonstrate that Appellant had supplied B.M.O.'s address to an unknown person.

Tom Keeney, the deputy juvenile officer, testified that during his second home visit, he observed drug paraphernalia in Appellant's bedroom and one nude picture of M.C.J. Keeney also testified that: K.W.J. had disclosed that Kenneth Johnson had sexually abused him; K.W.J. indicated that Appellant had walked in on one such instance of abuse; B.M.O. had disclosed that Kenneth Johnson had abused her; and B.M.O. indicated that she could smell drugs in the house and that Appellant would lock herself in her room. Keeney also read into the record several excerpts from internet chat logs purportedly authored by Appellant and Kenneth Johnson. The chats authored under a screen name used by Appellant indicated that Appellant had sought to obtain marijuana, and had forced someone to leave her house because that someone had molested her daughter.

Kenneth Nix, a detective with the Clayton Police Department serving as the operations supervisor for the computer crime unit, was present when the search warrant was executed. He testified regarding the computers seized in the search and the photos, data, and other information found on those computers upon further investigation. Nix identified the author of several of the chats to be Appellant.

Diane Silman, the executive director for the Ozark Foothills Child Advocacy Center and a forensic interviewer, testified that the children alleged sexual abuse committed by Kenneth Johnson, and that K.W.J. disclosed that one such instance occurred with Appellant's knowledge. Following Silman's testimony, two depositions given by B.M.O., one deposition given by K.W.J., and one deposition given by Denise Stephens, a family counselor for Appellant's children, were received into evidence. The depositions contained testimony from B.M.O. and K.W.J. that they both believed Appellant knew about the sexual abuse, and testimony from Stephens that she had informed the children of the reason they were in foster care.

At the close of Respondent's evidence, Appellant offered into evidence a handwritten letter from B.M.O. to Appellant, a

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transcript of a deposition given by M.C.J., a transcript of a deposition given by K.W.J., and a transcript of a deposition given by B.M.O. In those depositions, the children did not indicate that Appellant knew of the sexual abuse

The trial court found by clear, cogent, and convincing evidence that the children had been abused and neglected by Appellant, pursuant to section 211.447.5(2),³ made the necessary findings under subsections 211.447.5(2)(a)-(d) and 211.447.7(1)-(7), and found that the termination of parental rights was in the best interest of the children.

STANDARD OF REVIEW

We must affirm the trial court's judgment so long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In the context of a termination of...