In The Interest Of: T.S.g v. Officer
Decision Date | 28 September 2010 |
Docket Number | No. WD 71641.,WD 71641. |
Citation | 322 S.W.3d 145 |
Parties | In the Interest of: T.S.G., Appellant, v. JUVENILE OFFICER, Respondent. |
Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Patricia A. Harrison, St. Louis, MO, for appellant.
Michael R. Fogal, Kansas City, MO, for respondent.
Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
T.S.G. appeals the juvenile court's judgment that she committed acts constituting a status offense under Section 211.031.1(2)(d) 1 of behavior injurious to her welfare. We reverse.
T.S.G., seventeen years old at the time of trial, was accused by her two half-brothers of sexual misconduct, because she allegedly let them touch her breasts and those of her cousin. The two brothers, E.G.Jr. and E.G., were ten and nine years old at the time of trial in 2009. The alleged misconduct took place from October 2005 through December 2008. At the time the accusations were made, E.G.Jr. was eight years old and E.G. was six. The mother of the boys, A.M.C., informed Children's Division of the allegations, and the boys were interviewed by a forensic interviewer, Kristin Gilgour (“Gilgour”).
Based on these allegations, on April 2, 2009, the Juvenile Officer filed a Delinquency Petition alleging that T.S.G. committed acts, if committed by an adult, would have resulted in two counts of sexual misconduct. The juvenile court asserted jurisdiction over T.S.G. pursuant to Section 211.031.1(3), which vests original jurisdiction in the juvenile court over “any child who is alleged to have violated a state law.” A trial was held in September 2009, at which both E.G.Jr. and E.G. testified, along with their mother, father, and Gilgour.
At the close of evidence, the judge took under advisement an oral motion for judgment of acquittal. When the hearing reconvened, the trial court issued its ruling. The court dismissed Count 2 of the Delinquency Petition, finding that the Juvenile Officer had failed to meet the burden of proof as to that charge. The court also found that the Juvenile Officer had failed to prove, beyond a reasonable doubt, each element of Count 1; specifically, the intent element that touching was done for sexual gratification was not proven.
The Court then, without a motion or request from either party, “amended the Petition to conform to the evidence” and found T.S.G. had committed a status offense. The court found that T.S.G. acted beyond her welfare and the welfare of E.G.Jr. by involving herself and E.G.Jr. in some sort of inappropriate contact. This basis of jurisdiction of the juvenile court is found at Section 211.031.1(2)(d), and it gives the court jurisdiction over a child who either resides or is found in the county and who is in need of treatment because “[t]he behavior or associations of the child are otherwise injurious to his or her welfare or to the welfare of others.”
The dispositional hearing was held on October 6, 2009, and T.S.G. was placed on probation in the care and custody of her mother. T.S.G. was ordered to complete the Healthy Choice Program and fifteen hours of community service. Five months later, on March 9, 2010, the juvenile court found that T.S.G. was no longer in need of the services of the court, and therefore, all prior orders were terminated, and T.S.G. was released and discharged from the jurisdiction of the Court.
As a threshold matter, we must consider whether the issue has been rendered moot prior to appellate review. Lucas v. Lucas, 307 S.W.3d 712, 714 (Mo.App. E.D.2010). “ ‘With regard to justiciability, a case is moot if a judgment rendered has no practical effect upon an existent controversy.’ ” State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.1998) (quoting Gilroy-Sims & Assocs. v. City of St. Louis, 697 S.W.2d 567, 569 (Mo.App. E.D.1985)). “ ‘The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction.’ ” Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 545 n. 3 (Mo.App. W.D.1999) (quoting Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App.1999)). “Because mootness implicates the justiciability of a case, the court may dismiss a case for mootness sua sponte.” Chastain, 968 S.W.2d at 237. “We do not decide questions of law disconnected from the granting of actual relief.” Id.
There are three narrow exceptions to this general rule that allow this Court to exercise its discretion to accept a moot case, where: (1) the action becomes moot after the case has been argued and submitted; (2) the issue is one of general public interest and importance and is capable of recurring and likely to evade appellate review, Reiz v. Bd. of Zoning Adjustment, 316 S.W.3d 331, 334-35 (Mo.App. W.D.2010) (citing State ex rel. Claudia Lee & Assocs., Inc. v. Bd. of Zoning Adjustment, 297 S.W.3d 107, 111 n. 6 (Mo.App. W.D.2009) (citations omitted)); or (3) the decision being appealed could have significant collateral consequences for one or more of the parties. Glover v. Michaud, 222 S.W.3d 347, 351 (Mo.App. S.D.2007).
Both parties request that we proceed with a determination in this case under the second exception above. T.S.G. further requests that we proceed also under the third exception above, in that because the original charge was sexual in nature and with the rapidly changing statutes in Missouri dealing with this area of the law regarding sex offender registration and the movement to make more juvenile records public, she may face significant collateral consequences in the future if we do not address the issues of the case. The Juvenile Officer concedes that there may be significant collateral consequences to T.S.G. in the future based on this adjudication, even though she is no longer under the jurisdiction of the juvenile court. Therefore, we proceed to address the issues raised by the parties.
T.S.G. raises two points on appeal. First, T.S.G. argues the juvenile court violated her rights under the Fourteenth Amendment to due process of law and to a fair trial when the Petition alleged a delinquency offense and, yet, the court amended the petition to a status offense after the close of evidence, thereby depriving her of notice of the charges against her. In her second point, T.S.G. argues there was insufficient evidence to sustain a charge of “behavior injurious to her welfare or the welfare of her brother.”
“An appellate court reviews juvenile proceedings ‘like any other court-tried case, i.e., the judgment will not be disturbed unless it is against the weight of the evidence or it erroneously declares or erroneously applies the law.’ ”
In the Interest of N.R.C. v. Juvenile Officer, 276 S.W.3d 883, 886 (Mo.App. W.D.2009) (quoting N.J.K. v. Juvenile Officer, 139 S.W.3d 250, 259 (Mo.App. W.D.2004)). The facts are viewed in the light most favorable to the trial court's decision. See In the Interest of A.A.T.N., 181 S.W.3d 161, 166 (Mo.App. E.D.2005). The appellate court defers to the trial court's determinations of the credibility of witnesses. Id.
T.S.G. argues the trial court erroneously declared and/or misapplied the law when it found T.S.G. committed a status offense under Section 211.031.1(2)(d) because the original Petition failed to allege the status offense and, therefore, failed to provide notice of the charges against her, which violated T.S.G.'s Fourteenth Amendment right to due process of law and a fair trial.
It has long been settled that due process and fair treatment are required in juvenile court adjudications of delinquency by the Fourteenth Amendment's Due Process Clause. See In re Gault, 387 U.S. 1, 30-31, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The essentials of due process and fair treatment are required to pass constitutional scrutiny. Id. at 30, 87 S.Ct. 1428. “Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with particularity.’ ” Id. at 33, 87 S.Ct. 1428.
In the present case, after the close of the evidence, the court found that the Juvenile Officer failed to prove her case as to each element beyond a reasonable doubt. The juvenile court then proceeded to dismiss one allegation and amend the remaining allegation in the Petition, replacing the delinquency offense with that of a status offense. The status offense which the court found to have been committed by T.S.G. is found in Section 211.031.1(2)(d), and it gives the court jurisdiction over a child who either resides or is found in the county and who is in need of treatment because “[t]he behavior or associations of the child are otherwise injurious to his or her welfare or to the welfare of others.” No prior notice of this status offense was given to T.S.G. before the close of evidence. This runs afoul of the Fourteenth Amendment's guarantee of due process and a fair trial. See State v. Billingsley, 465 S.W.2d 569 (Mo.1971).
Generally, the notice requirement of the Due Process Clause is satisfied when one is charged with a greater offense but convicted of an uncharged lesser-included offense. “If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.” State v....
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