In the Interest of G.C.

• Decision Date: 31 July 2001
• Citation: 50 S.W.3d 408
• Parties: (Mo.App. S.D. 2001) In the Interest of G.C., A minor child. ED78712 0
• Court: Missouri Court of Appeals

50 S.W.3d 408 (Mo.App. S.D. 2001)

In the Interest of G.C., A minor child.

ED78712

Missouri Court of Appeals Eastern District

07/31/2001

Appeal From: Circuit Court of Franklin County, Hon. Walter A. Murray, Jr.

Counsel for Appellant: Richard A. Wunderlich and Jeana D. McFerron

Counsel for Respondent: Julie Forman-Jones

Opinion Summary:

T.C. appeals from the juvenile court's order and judgment placing her 12-month-old son, G.C. , in the legal custody of the Division of Family Services under supervision of the juvenile court due to a finding of neglect pursuant to section 211.031.1(1) RSMo 2000.

Division One holds: The juvenile court's finding of "neglect" and assumption of jurisdiction over the infant is not supported by clear and convincing evidence.

Dowd, Jr., P.J., concurs. Teitelman, J., concurs in result in separate opinion.

Mary R. Russell, Judge

T.C. ("Mother") appeals from the juvenile court's order and judgment placing her 12-month-old son, G.C. ("Infant"), in the legal custody of the Division of Family Services ("DFS"), which placed Infant in the physical custody of Mother's grandmother. On appeal, Mother contends that the juvenile court erred in entering its order and judgment pursuant to section 211.031.1(1) RSMo 2000¹ because it lacked jurisdiction over Infant. We reverse in that there was not clear and convincing evidence adduced at the hearing for the juvenile court to find Infant was in need of care and treatment.

Mother left Infant at her friend's trailer residence in Franklin County sometime in the early morning hours of April 10, 2000. She did so as she was scheduled to appear in criminal court in St. Louis at 9 a.m. She did not have a car and relied on her friend for transportation. The friend's elderly, blind mother and 12-year-old daughter were to care for Infant during Mother's absence.

While Mother was in court, DFS received an emergency report stating that the 12-year-old caregiver "couldn't take it any longer," "that there wasn't any food in the house, that she had attempted to contact her mother and tell her . . . that there was no food in the house and that her mother had instructed her to feed [Infant] cornmeal."

A DFS investigator attempted to contact Mother by calling the emergency numbers that Mother left at the trailer, but her attempts were unsuccessful. The investigator took Infant into protective custody, and was able to contact Mother's grandmother, who picked up Infant and took him into her home.

Mother did not leave the St. Louis courthouse until 6 p.m. At that time, Mother first learned that there was a problem involving Infant. Although she had access to a telephone earlier in the day, she made no attempt to contact Infant's caregivers.² She returned to Franklin County over 19 hours after leaving Infant at the trailer.

The next day, the juvenile officer filed a petition alleging that Infant was in such condition or surroundings that his welfare required the court to take immediate custody. A First Amended Petition was filed alleging that Infant was in need of care and treatment under supervision of the court because: Mother was unable to be located at the emergency numbers left at the trailer; Infant was inappropriately left with a 12-year-old and an elderly blind woman, both of whom were incapable of providing proper care; and the trailer was filthy with no sheets on the beds, dirty clothes strewn about, drawers pulled out, and a bag of sexual devices sitting in the corner.

Mother, who was represented by counsel, testified at the hearing that she "had a little bit of a drug problem." She further stated, "I'm not asking for full custody of [Infant] right now," and "[Infant] does not need to be completely in my care . . . ." At the close of the evidence, the guardian ad litem representing the Infant recommended that the juvenile court assume jurisdiction over the Infant as he felt that the "petition has been proven by clear and cogent evidence."

The juvenile court entered its finding of jurisdiction in which it determined that the allegations in the petition were established by clear, cogent, and convincing evidence and, therefore, Infant was under the court's jurisdiction pursuant to section 211.031.1(1). The juvenile court also entered its order and judgment of disposition placing Infant in the legal custody of DFS under supervision of the court until further order. Infant was placed in the physical custody of Mother's grandmother, who had been the primary babysitter in the past.

On appeal, Mother now asserts that the juvenile court erred in that it lacked jurisdiction to enter its order and judgment because there was insufficient evidence that Infant was in need of care and treatment pursuant to section 211.031.

Section 211.031 provides in pertinent part:

1. Except as otherwise provided in this chapter, the juvenile court . . . shall have exclusive original jurisdiction in proceedings:

(1) Involving any child . . . who is alleged to be in need of care and treatment because:

(a) The parents, or other persons legally responsible for the care and support of the child . . . neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his or her well-being; . . .

(b) The child . . . is otherwise without proper care, custody or support; . . .

Juvenile proceedings are in the nature of civil proceedings, and the standard of review is the same as in a court-tried case. In Interest of S.B., 712 S.W.2d 18, 19 (Mo.App. 1986). The standard of review of the assertion of jurisdiction by the juvenile court upon finding that a child is in need of care because of parental neglect is one of deference to the juvenile court, whose judgment will be sustained unless there is no substantial evidence to support it. Id.To assert jurisdiction under section 211.031.1(1), the juvenile court must find clear and convincing evidence that the child is in need of care because the parent has neglected to provide the care necessary for the child's well-being. In Interest of L.J.M.S., 844 S.W.2d 86, 92 (Mo.App. 1992). In reviewing the sufficiency of the evidence, we consider the evidence and all reasonable inferences therefrom in the light most favorable to the trial court's judgment, and defer to the trial court on matters of witness credibility. In Interest of R.G., 885 S.W.2d 757, 763 (Mo.App. 1994).

Mother contends that the record reflects only one isolated instance of poor judgment, and that such evidence does not prove she neglected to properly care for Infant. In support of her argument, Mother relies on In re S.B. In S.B., a mother left her child at her aunt's residence for an afternoon. S.B., 712 S.W.2d at 19. Because the mother's aunt was not home, she left the child in the care of her 18-year-old cousin. Id. That afternoon, the cousin sexually molested the child, causing the child to become infected with gonorrhea and herpes. Id. The juvenile authorities took custody of the child and filed a petition charging the mother with neglect. Id. The petition alleged that mother's cousin had previously sexually molested another child and that mother "was aware of the prior sexual molestation." Id. This court reversed the trial court's finding of neglect because "[t]here was no substantial evidence that [mother's cousin] had, in fact, previously abused the other child." Id. Although the evidence showed that the cousin had been charged with sexual abuse, he had never been convicted. Id. Moreover, mother and her sister testified that they had reason to believe that the prior sexual abuse charge was a fabrication that resulted from a totally unrelated "family feud." Id. This court found that, although mother did not exercise "the best judgment" in leaving her child with someone who had previously been charged with sexual abuse, she had a reasonable basis to believe the charge was unjust. Id. Because there was "[n]o other evidence even remotely intimat[ing] the absence of concerned parenting," this court concluded that this "isolated incident" did not suggest mother failed to supply the child with the minimum quality of care that the community would tolerate. Id.

Mother further contends her case is indistinguishable from S.B. because the record reflects only one isolated instance in which Mother failed to exercise the best judgment, but did not neglect Infant because she reasonably believed that the 12-year-old and the elderly blind woman could provide proper care.

While we ultimately agree with Mother that the evidence presented in this record is insufficient to prove "neglect," it is important to correct Mother's misinterpretation of S.B. and to further set out recognized principles applicable to all neglect cases.

A pattern of neglect is not necessary for a court to assert jurisdiction. The juvenile court does not have to find that a dangerous situation exists, but only that there has been a failure to supply the child with the minimum quality of care that the community will tolerate. In the Interest of M.A.T., 934 S.W.2d (Mo.App. 1996). When faced with a potentially harmful situation, the juvenile court need not wait until harm is done before it can act. In Interest of J.J., 718 S.W.2d 235, 237 (Mo.App. 1986). Rather, the court is authorized to act to prevent the deterioration of a child's situation. Id.; In Interest of E.J., 741 S.W.2d at 894. At the risk of being wrong, we are required to protect innocent children who cannot care for themselves.

Although the concurring opinion states without legal authority, "that it is in a child's best interest to remain in the custody of his or her parents, unless the evidence clearly indicates otherwise," our paramount consideration is the welfare of the child, which supercedes our preference for parental custody. In Interest of E.J., 741 S.W.2d 892, 894 (Mo.App. 1987).

Despite some testimony which hinted at problem areas in Mother's character and ability to care...