Juvenile v. S.E.W. (In re S.M.W.)
| Decision Date | 22 November 2022 |
| Docket Number | WD85122 |
| Parties | IN THE INTEREST OF: S.M.W.; Juvenile, v. S.E.W., Appellant. JUVENILE OFFICER, Respondent, |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County, Missouri Honorable Jalilah Otto, Judge
Before: Lisa White Hardwick, P.J., Thomas N. Chapman and Janet Sutton, JJ.
S.E.W (father) appeals the disposition judgment of the Jackson County juvenile court assuming jurisdiction over S.M.W. (the child) under section 211.031, placing the child in Children's Division care and custody and ordering the parties to participate in certain services.[1] On appeal, father does not contend that the juvenile court erred in assuming jurisdiction over the child. Father argues the juvenile court erred by appointing a guardian ad litem to represent him at the neglect proceedings and in ordering him to participate in certain services without consideration of his disability in violation of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. We affirm the judgment.
Factual and Procedural Background[2]
The child was born on December 11, 2008. The child lived with J.M.M. (mother) when in July 2021, the Juvenile Officer filed a two-count petition alleging that the child's mother and father neglected him.[3] The child was discharged from a mental health facility and mother would not retrieve him, instead telling father to take the child in, which father did not do. Therefore, Children's Division initiated the neglect proceeding because the child had nowhere to live and no appropriate caretaker.
In mid-July 2021, the juvenile court held a protective custody hearing and father appeared by telephone. The Juvenile Officer recommended appointment of a guardian ad litem (GAL) for father because "[h]e's currently under a guardianship and has been deemed incapacitated for legal purposes." The probate court in 2014 previously entered a judgment of incapacity and disability and appointed father's mother, the child's paternal grandmother, as his chapter 475 guardian and conservator. The following exchange occurred when the juvenile court ordered a GAL to represent father in the neglect proceeding:
The juvenile court ordered the child remain in protective custody and in Children's Division's temporary legal custody for appropriate placement, and allowed mother and father supervised visitation with the child. Although father initially declined the appointment of trial counsel, the juvenile court later appointed trial counsel at a case management conference.
The parties appeared for adjudication in mid-September 2021 and the Juvenile Officer filed an amended petition that same day. In count one, the Juvenile Officer alleged that mother neglected the child. In count two, the Juvenile Officer alleged that father was unable to care for the child, father was under an adult guardianship due to his "limited mental capacity," and father's residence did not allow children. With respect to both counts, the Juvenile Officer alleged that the child was at risk and in need of the court's intervention.
Mother stipulated to count one in the amended petition, that she neglected the child. Specifically, mother stipulated that she did not pick the child up from mental health facilities when he was discharged, that while the child lived with her in 2020 he was not enrolled in school, he was not getting regular mental health treatment as needed, that she expressed concerns about the child returning to her home, and that the child was at risk and in need of placement.
Count two in the amended petition alleged that father was under an adult guardianship because of his "limited mental capacity," that father admitted to Children's Division that his residence did not allow children, and that the child was without an appropriate caregiver and therefore at risk without the court's intervention. Father's attorney requested a continuance for father to complete a psychological evaluation to assess his competency as it related to entering into a stipulation for purposes of adjudication and disposition in the neglect proceeding, which the juvenile court granted.[4]
The juvenile court held an adjudication hearing on count two in October 2021. The juvenile court took judicial notice of father's guardianship case and received copies of the following exhibits from the probate guardianship case into evidence at the Juvenile Officer's request: the guardianship petition, mental examinations completed by both the State and father as part of the competency findings in an associated criminal case,[5] the letters of guardianship, and the docket entries. The juvenile court took judicial notice of the probate court's finding that father was totally incapacitated and totally disabled by means of his mental condition, that he was unable to care for himself and his financial resources, but that he retained his voting and driving rights. Further, Juvenile Officer's exhibit 2, father's competency exam, established that father was diagnosed with intellectual disability mild (intellectual developmental disorder)/mild mental retardation and functioned on a first-grade level.
A Children's Division investigator testified that father was unable to provide a home for the child as father had stated he lived in an apartment building that did not allow children. The investigator testified that father's adult guardianship did not "play into the decision at all to get the court involved with [the] family" and that "the court was involved because the child was without an appropriate caretaker to take care of him and take placement of him."
During arguments to the court, father's GAL stated that father "continues to be unable to care for the child" and that mother's actions led to the initiation of the case. Father's GAL stated that father Father's GAL argued that father did not abuse or neglect the child because father believed mother was providing a home for the child and that he was unable to do so given his own circumstances.
The juvenile court noted the following:
[A]n illness or incapacity is not a basis alone to determine that a child is in need of care or for the determination of neglect. There has to be a nexus between that illness and whatever harm could or has resulted. So I'd like to look at this a little bit longer.
The juvenile court then concluded that because of mother's stipulation to count one in the amended petition, the court had jurisdiction over the child. The court also concluded it would take count two, the neglect count related to father, under advisement. The parties agreed to proceed to disposition.
The court held a dispositional hearing over two days in October and November 2021. During disposition, a Children's Division caseworker testified that while she was on the case, neither father nor his guardian made any requests for accommodation for his disability, but if father or his guardian had made a request, then Children's Division would have afforded any reasonable accommodations to assist father in completing services.
Additionally, the caseworker testified that Children's Division had a previous preponderance of evidence finding from 2012 against father involving digital penetration of a five-year-old child.[6] Therefore, the caseworker was concerned about the child's contact with father, given that the child was sexually acting out with his sister, he was exhibiting concerning sexual behaviors at school, and that Children's Division received information from the child's mother that an unknown man previously sexually abused the child in 2012 or 2013.
The current caseworker, who worked on the case for approximately two months, testified that she did not have contact with father's chapter 475 guardian since she began working on the case, and that the chapter 475 guardian did not contact her.[7] The caseworker stated that it would be appropriate for her to route her communications with father through his chapter 475 guardian and that future Children's Division's instructions should be given to that legal guardian. The caseworker testified that father's chapter 475 guardian was allowed to schedule his psychological evaluation on father's behalf, but the chapter 475 guardian did not do so. The caseworker also affirmed that she intended to discuss father's disability with parent aides to assist them in providing father the best services pertaining to his disability. Finally, the caseworker affirmed that Children's Division had policies to ensure that its interactions with parents were conducted in accordance and compliance with the ADA.
In closing recommendations to the juvenile court, father's GAL stated that father was requesting visitation, not custody, and admitted that visitation should be supervised given father's intellectual disability.
The child's guardian ad litem and the Juvenile Officer both requested the child remain with his current placement, an unrelated family friend, because of the significant improvement in the child's behaviors and engagement in services. Mother and father, through his GAL, requested the child be placed with the child's paternal grandmother who already served as fath...
To continue reading
Request your trial