IN RE DO
| Decision Date | 13 July 2010 |
| Docket Number | SD 30079.,No. SD 30077,SD 30077 |
| Citation | 315 S.W.3d 406 |
| Parties | In the Interest of: D.O. and K.N., Minors. J.O., Natural Father, Appellant, v. Taney County Juvenile Office, and Missouri Department of Social Services, Children's Division, Respondents. |
| Court | Missouri Court of Appeals |
COPYRIGHT MATERIAL OMITTED
Randy Anglen, Branson, MO, for Appellant.
Joseph W. Allen, Branson, MO, for Respondent Taney Cnty.
Juvenile Office, and Jon T. Wagner, Springfield, MO, for Respondent Missouri Dep't of Soc. Servs., Children's Div.
Jeremy Oster ("Father") appeals separate judgments terminating his parental rights to and over two of his children, D.O. and K.N. (collectively, "the children" or "the girls"). K.N. was taken into protective custody in November of 2003. D.O. was taken into protective custody one month later. Father asserts seven points of alleged trial court error in these cases we have consolidated for purposes of appeal. We address only those that are dispositive of the appeal. Because the juvenile officer failed to prove by clear and convincing evidence that Father severely or recurrently abused D.O. (the grounds for termination asserted in her petitions), and because the trial court's finding that termination of Father's parental rights was in the best interests of the children was against the weight of the evidence, we reverse the judgments.
While it is certainly true that "appellate courts should review conflicting evidence in the light most favorable to the judgment of the trial court," In re K.A.W., 133 S.W.3d 1, 11-12 (Mo. banc 2004), because our ultimate conclusion is that the evidence supporting the grounds pleaded for termination in these cases "simply does not `instantly tilt the scales in favor of termination when weighed against the evidence in opposition,'" In re T.A.S., 62 S.W.3d 650, 661 (Mo.App. W.D.2001) (quoting In re A.H., 9 S.W.3d 56, 59 (Mo. App. W.D.2000)), we will set forth evidence both favorable and unfavorable to the trial court's judgments.
In November of 2003, K.N. and D.O. were residing with their maternal grandparents. An anonymous hotline call was made concerning grandparents' home that brought the children to the attention of the Children's Division of the Missouri Department of Social Services ("the Division"). K.N. was taken into protective custody on November 18, 2003, because her mother, H.O., "was exhibiting behaviors that indicated she might be high on drugs." D.O. was taken out of her grandparents' home that same day by Father, who had legal custody of her at the time.
At the time K.N. was removed from her mother's custody, Father did not know that he was K.N.'s father, and someone else had been listed as the biological father on K.N.'s birth certificate. After K.N. came into care, genetic testing was conducted and revealed that Father was K.N.'s biological father. Father "appeared to be happy about this and eager to participate in visits with her along with D.O., who is the sister of K.N.." No evidence was presented that K.N. had ever been in Father's custody or had been exposed to any of the abuse that D.O. later endured.
One month after D.O. began residing with Father, Father fell behind in his rent payments and decided to move in with a woman he worked with at Sonic, Karrie Byers. Ms. Byers had three children, and she and Father would care for each other's children when the other parent was at work. Father and Ms. Byers "dated" for two or three weeks, but Father testified that they actually resided together for less than a week.
Father testified that shortly after he and D.O. moved in with Ms. Byers, Father went to work and left D.O. in Ms. Byers's care. Ms. Byers later called Father at work to inform him that D.O. had fallen. When Father arrived home after completing his shift, he checked on D.O. and did not observe any unusual wounds or injuries on her. When Father was at work the next day, Ms. Byers again called to inform him that one of Ms. Byers's children had bitten D.O. Upon arriving home, Father observed a bite mark on D.O.'s cheek but "figured that her children were just playing around." A few days later, Ms. Byers again called Father at work and told him that D.O. had fallen out of her crib. Father looked at D.O. when he came home, but saw no unusual injuries.
On December 15, 2003, Ms. Byers again called Father at work and told him that D.O. had fallen, bumped her head on a table, and burned her ear. This time, Father got permission to leave work early and went directly home. According to Father, when he arrived, D.O. was lying down in the bedroom. The door to the bedroom had been closed and D.O. was covered from head to toe with a blanket. Ms. Byers was watching TV and tried to keep Father from going into the bedroom to check on D.O. Finally, after watching television for as much as an hour-and-a-half, Father entered the bedroom, shook the bed, called D.O. to come to him, and she threw the cover back. D.O. came running to him, and Father saw that she was severely bruised and that both of her ears were burned. Father said he was furious, grabbed D.O., "got as much stuff as he could and he loaded up the car." After Father had finished packing up the car, he and D.O. left Ms. Byers's residence. Father went from Ms. Byers's home to see the "police commissioner" in Rockaway Beach. After speaking with the law enforcement officer in Rockaway Beach, Father did as the officer recommended and took D.O. to the hospital in Branson.
When Father was undressing D.O. in the hospital's examination room, he saw additional bruising on D.O.'s body. According to Father, he had not bathed D.O. or changed her diapers for a period of time because Ms. Byers had been "doing all of that."
Mitzi Huffman, a nurse practitioner who examined D.O. in the emergency room ("NP Huffman"), testified as to the severity and extent of D.O.'s injuries. NP Huffman observed approximately 52 bruises on D.O.'s body. In NP Huffman's opinion, D.O.'s injuries had occurred at different times. She testified that some of D.O.'s injuries were recent, some were several days old, and some were up to two weeks old. The bruises NP Huffman observed were of different colors: purple, green, bronze, and brown, colors which, in her opinion, evidenced bruises of different ages.
NP Huffman testified that the purple coloring occurs about two-to-three days after an injury, whereas the green color represents a bruise that is within one week of the injury. In NP Huffman's opinion, a bronze colored bruise is one that is about a week-and-a-half old, and a brown bruise is about two weeks old. NP Huffman observed a burn on D.O.'s entire ear that, in her opinion, was consistent with a non-accidental injury. She also described an abrasion from the top to the bottom of D.O.'s nose and stated that the injury was consistent with a non-accidental injury caused by a downward blow. NP Huffman also testified that D.O. had patches of hair missing from her scalp. She said these bare patches would have been readily apparent to an adult because D.O.'s hair was rather thin and an adult would be observing her head from above.
Dr. Thomas Huffman, a physician and surgeon, was also present during the examination of D.O. Dr. Huffman testified that, in his opinion, the bruises on D.O.'s arm, shoulders, and the left side of her face were between ten days to two weeks old. Dr. Huffman testified that the burn to D.O.'s right ear was between three and seven days old, whereas the burn to her left ear occurred in the range of "eighteen hours, plus or minus six hours" before the photograph of the injury was taken. Dr. Huffman concluded that the majority of D.O.'s injuries occurred over at least a two-week period. D.O. was not allowed to go home with Father and was taken from the hospital by an employee of the Division.
The next day, Father was questioned by Detective Brian Bailey of the Taney County Sheriff's Office. Father's interviews with Detective Bailey were videotaped. The videotaped interviews were admitted into evidence at trial and are part of the record on appeal. During the juvenile officer's cross-examination of Father about his recollection of what he had said in his interviews with Detective Bailey, the trial judge cut off further testimony regarding Father's interviews with Detective Bailey and stated he would view the videotapes and draw the inferences he thought appropriate from them.1
Before the court cut short this line of testimony, Detective Bailey said that Father told him that he had started to become suspicious about D.O.'s injuries one week after he began residing with Ms. Byers. Detective Bailey said Father expressed that he had concerns that Ms. Byers might kill D.O., that D.O.'s behavior had changed in the weeks they had lived with Ms. Byers, and that D.O. was frightened of Ms. Byers and was afraid to be left alone with her.
According to Detective Bailey, when he asked Father about the injuries to D.O.'s shoulder area, upper arms, groin area and buttocks, Father admitted that the injuries were probably caused by him during times that when he was frustrated or angry with D.O. and that he would forcibly pick D.O. up and then forcibly put her down on the floor. Father allegedly told Detective Bailey that he would become frustrated when Ms. Byers told him to make D.O. be quiet, so he would jerk D.O. up from wherever she was sitting or lying. During the interview, Father is said to have made several statements to the effect that he "might have" caused the bruises or "probably did" cause the bruises. According to Detective Bailey, Father admitted that he was probably the cause of the injuries to D.O.'s arms, shoulder area, groin, and buttocks area.
After failing a "voice stress test," Father is said to have admitted to Detective Bailey that he and Ms. Byers had been in an argument, during which Ms. Byers was upset because D.O. "would not be quiet." Father,...
To continue reading
Request your trial
- In re the Adoption of C.M.B.R.
- Pearson v. Koster
- Greene Cnty. Juvenile Office v. D.G.R. (In re J.A.R.)
- J.L.G. v. Dent Cnty. Juvenile Office