In re W.B., WD 64192.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Per Curiam
• Citation: 162 S.W.3d 517
• Parties: In the Interest of W.B., Plaintiff. Juvenile Officer, Respondent, Missouri Children's Division, Respondent, v. L.B., Appellant, F.B., Plaintiff.
• Docket Number: No. WD 64192.,WD 64192.
• Decision Date: 17 May 2005

162 S.W.3d 517 In the Interest of W.B., Plaintiff.
Juvenile Officer, Respondent,
Missouri Children's Division, Respondent,
v.
L.B., Appellant,
F.B., Plaintiff. No. WD 64192. Missouri Court of Appeals, Western District. May 17, 2005.

Page 518

Stuart W. Conrad, Kansas City, MO, for appellant.

Debra J. Gronewoller and William R. Jackson, III, for respondent Kierst, Jr.

Gary Lee Gardner, Asst. Attorney General, for respondent Children's Division.

Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.

Page 519

PER CURIAM.

Appellant L.B. (Mother) appeals the trial court's dismissal of her motion for supervised visitation with her child W.B., who is in the care and custody of the Missouri Department of Social Services, Children's Division (Division). Mother contends that the trial court erred in granting the Division's motion to dismiss before she received notice of the motion or was given an opportunity to respond. We reverse the ruling below and remand the matter to allow Mother an opportunity to file a response.

Background

In March 2002, W.B. and his younger sibling (A.B.) were placed in the custody of F.B. (Father) after it was determined that the children were being abused by Mother's paramour. W.B. and A.B. were five and three years old respectively. In early June, Father, in violation of a court order of protection designed to keep the children away from Mother's paramour, left the children with Mother. Promptly thereafter, while the children were at Mother's, W.B.'s sibling, A.B., was beaten and choked by Mother's paramour. Mother, who arrived home to find her paramour choking A.B., failed to contact police or seek help for the fatally injured child for several hours while she attempted to conceal evidence of the beating. When a police officer responded to the scene as a result of a call by a neighbor, Mother and her paramour persuaded the officer that nothing was wrong, and the officer left. Several hours later, A.B. stopped breathing as a result of his injuries. Although emergency help was then summoned, A.B. died of the injuries inflicted on him.

W.B. was then five years old. The authorities alleged that W.B. was also in the home at the time of the beating of his brother. Mother's paramour was charged with murder and other felonies. Mother was also charged with felony murder for her role in failing to protect the child.

The Juvenile Officer filed a petition asking the family court to take jurisdiction over W.B. for abuse and neglect and to place him in the custody of the Children's Division, pursuant to section 211.031.¹ Following a dispositional hearing in October 2002, the family court found that W.B. had been abused and neglected and ordered W.B. committed to the custody of the Division for placement in foster care. The court also ordered that there be no contact between W.B. and his Mother. The court directed the Division to pursue a permanency plan for termination of parental rights of both parents with the hope that W.B. could be adopted. The court relieved the Division of any duty to provide services aimed at family reunification. Mother, who had apparently contested some of the factual allegations, did not appeal that judgment or seek a rehearing.

In February 2003, the Juvenile Officer filed its first petition to terminate the parental rights of Mother and Father. Both parents filed motions seeking visitation. No ruling was issued on these motions. The Juvenile Officer voluntarily dismissed the petition, then later filed a new petition to terminate both parents' rights as to W.B. The petition alleged, inter alia, that Mother's parental rights should be terminated because: (1) the child has been abused and neglected as previously determined in the abuse case; (2) severe acts of abuse were committed toward the child's sibling under circumstances that indicate

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that Mother knew or should have known that such acts were being committed; (3) the child has been under the jurisdiction of the juvenile court since October 21, 2002 and the conditions that led to the assumption of jurisdiction persist and are not likely to be rectified; and (4) Mother was guilty of a felony violation of Chapter 566 and Section 568.020, when the child's sibling was a victim. At that time, Mother was still charged but not yet convicted in connection with the child's death.

Later that month, a jury convicted Mother of second-degree murder and four other felonies in the death of W.B.'s sibling. The second-degree murder conviction was a felony murder conviction based on the death of A.B. occurring while Mother was in the process of the commission of first-degree child endangerment.

Mother's answer in the termination case, filed three days after Mother's jury conviction, denied the allegations of the termination petition. Mother then filed a motion seeking supervised visitation with W.B. pursuant to section 211.251.2, which permits a parent to petition the court for a modification of a custody order at any time. That motion, which is at the heart of this appeal, was entitled "Mother's Request for Visitation with the Juvenile and for Appropriate Family Therapy Services." The motion mentioned the "no-contact" order from the earlier abuse and neglect case. The motion asked for "a reasonable schedule of supervised visits between Mother and W.B." The motion also asked for "appropriate services" to Mother but did not specifically seek family reunification.

The Division filed a response to Mother's motion for visitation, stating that the Division was not "charged with the responsibility of determining whether any particular contact is innocuous or harmful." The Division also stated that further delays to a permanent placement for the child would be "disruptive and injurious to his well being."

Appointed counsel initiated discovery with regard to Mother's motion for visitation by submitting interrogatories and requests for production of documents to the Division, the Juvenile Officer, and counsel for Father.

Two and a half months after her criminal conviction, Mother was sentenced to thirty years in prison. Mother currently is incarcerated while the appeal of her conviction and sentence is pending in this court.²

Four days after Mother's sentencing, the Division sought an enlargement of time to respond to Mother's discovery requests. Mother then sought to postpone the imminently scheduled hearing. Mother's motion said she had not received the Division's responses to her discovery requests. The motion also stated that counsel needed time to investigate whether the "factual predicate" of the motion for visitation was "still reasonable and under what circumstances visitation could be permitted" in light of Mother's sentence. Other reasons cited were the need for time to digest the Juvenile Officer's response to the discovery requests and possibly to depose any witnesses. That same day, the judge granted Mother's postponement and reset the hearing.

Promptly thereafter, the Division filed a "Motion to Dismiss Mother's Motion for Supervised Visitation." That motion, in its entirety, stated as follows:

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Comes now, Children's Division, by and through undersigned counsel, and in support of its motion to dismiss mother's motion for supervised visitation, states and alleges as follows:

1. On February 23, 2004, the Mother filed a motion with this court requesting supervised visits with the above referenced child.

2. On April 15, 2004, the mother was found guilty beyond a reasonable doubt by a jury empanelled by the Jackson County Circuit Court of among other felonies, murder in the second degree of the above referenced child's sibling.

3. The above referenced child was present in the home when his sibling was murdered by Mother.

4. The mother has been sentenced to a term of 30 years, of which she will serve 80%, or 24 years, before becoming eligible for parole.

5. 24 years is the entirety of the above referenced child's minority.

6. As a result of the foregoing facts, it is impossible for the child to reunify with or maintain any meaningful parent-child relationship with his mother during his minority.

WHEREFORE, and for the foregoing reasons, Children's Division requests this Honorable Court DISMISS mother's motion for supervised visitation.

The next business day, Monday, April 26, a senior judge acting for the Honorable Jon R. Gray, the regular family court judge, granted the Division's motion to dismiss Mother's motion for supervised visitation.

Mother filed a motion to set aside or rescind, in which she stated that she never received a copy of the Division's motion to dismiss and received a copy of the dismissal order only after it was mistakenly sent to the wrong...