M----, In re, 8388

• Decision Date: 29 June 1965
• Docket Number: No. 8388,8388
• Citation: 393 S.W.2d 109
• Parties: In re M_____.
• Court: Missouri Court of Appeals

Page 109

393 S.W.2d 109

In re M_____.

No. 8388.

Springfield Court of Appeals, Missouri.

June 29, 1965.

Rehearing Denied July 21, 1965.

George C. Baldridge, Joplin, for appellant.

Dean Johnston, Dalton DeShazer, Joplin, for respondent.

PER CURIAM.

This is a proceeding under Sections 211.441 to 211.511, RSMo (1959), V.A.M.S., in which the State sought to terminate the parental rights of the two defendants (now divorced) with reference to their five minor children ranging in age from 6 to 16 years at trial time. The trial court has entered a decree terminating the parental rights of both parents; the father alone has appealed, and we shall refer to him as the defendant. The cause is before us for review de novo, and, although we may not set aside the judgment unless it is clearly erroneous, it is our duty to make our own independent findings of fact and reach our own conclusions of law. Rule 73.01(d); ¹ Renfro v. Jackson County Juvenile Court, Mo.App., 369 S.W.2d 616, 621[5, 6].

The action was begun by the filing of a petition by the Jasper County Juvenile Officer which, after reciting the names and ages of the parents and their children and alleging that the children were in the custody of the Juvenile Court, then stated as grounds for termination substantially all the reasons or grounds provided in Section 211.441. Among other things, the petition specifically alleges that '* * * the parents have been found incapable and incompetent and there are reasonable grounds to believe that they will continue to be incapable of giving the children necessary care and protection. * * *' The defendant filed a responsive pleading, answering the juvenile officer's petition and praying that custody of the children be restored to him; in turn, the juvenile officer replied to this responsive pleading, specifically setting forth that '* * * said [defendant] is presently suffering and for a long time in the past has suffered from a mental disorder diagnosed as manic depressive reaction, manic type; that he becomes abusive and violent and strikes and abuses said children inflicting severe bodily injuries to them; that such assaults upon said children have been frequent and severe while said children were in his custody and that it would be extremely dangerous to said children to permit him to have custody of them and deterimental to their interests, moral, mental and physical.'

At trial time, the father was 45 years old and the mother was 38. They were married December 22, 1944, and are the parents of two girls, one 16 and the other about 6, and three boys, 15, 14 and 7. The mother was served by publication and did not appear at the trial. The State introduced a letter purportedly from her in which she advised the juvenile officer that she '* * * [had] given this [litigation] quite a bit of thought and I believe they would be better off in someone else's homes. So this is my authority for you to adopt them or whatever is best for them. * * *'

The State's proof was voluminous, and we will attempt here to present only a few of the incidents which were developed on the trial. One of these occurred while the defendant and his family were living in Coffeyville, Kansas, in 1960. Early in August 1960, the defendant reported to the Coffeyville authorities that his wife had been missing since July 27. The defendant stated to one of the officers that his wife was a 'highly nervous woman,' and that she had left without giving any indication where she was going. A police investigation of the woman's disappearance revealed that she and the defendant had quarreled on numerous occasions prior to her departure, and that they had quarreled violently shortly before she left. The neighbors appear to have been reluctant to discuss the matter, because they considered the defendant to be a physically violent man and they were afraid of him. Apparently the Coffeyville authorities took the matter seriously, for, in the language of the county attorney, 'we drug ponds and rivers,' but the search was unproductive.

Where the wife went at this time, and her reasons for going, are somewhat obscure. Her conversations with the county attorney indicated that she had left home because she received a severe beating from the defendant, and that she went to Cincinnati where she worked in a children's home. The defendant seems to believe that she was guilty of infidelity of some kind, and at one point in his trial testimony he accused his wife of living with a paramour during her absence, which extended over a period of some eight months. His explanation of his wife's behavior is typical of his testimony upon the trial.

'Q. * * * when you married your wife back in 1944, will you describe any defect * * * she had about her face?

A. Yes, she had a very badly deformed nose. In fact, it was so bad that, I like her, but yet, I was ashamed of her.

* * *

* * *

Q. * * * What happened about your wife's face in about 1959?

A. * * * through the years her nose * * * seemed to get worse. Her nose was very badly deformed. I was extremely ashamed of her.

Q. Would you say she was kind of an ugly duckling?

A. Yes, she was, but there was still something about her that I liked.'

The defendant then related that his wife had undergone a plastic operation on her nose. His testimony continued:

'Q. What kind of results did the plastic surgery have?

A. The operation gave her the most beautiful nose and the most beautiful face that I have ever seen. She was perfect.

Q. They did a good job?

* * *

* * *

A. Yes, after that, naturally, she was about the most beautiful woman I ever laid my eyes on. I fell badly in love with her. From then on things were never the same. I don't know what it was, she developed an independence * * * toward me, which I thought for the goodness that I had done and suggested that she had, why, it would always be different.

Q. What did she start doing?

A. Well, she started--she was getting independent, and then, she started paying a lot of attention to men and flirting with them.

* * *

* * *

Q. She started having interest in other men. What happened after that * * *?

A. Well, it got worse and worse and she just plainly started running around with other men and it just got worse and worse.'

In any event, the wife did not return until March 1961, and in the meantime the defendant was left with their five children, the youngest of whom was about two at the time. The eldest daughter C_____, who was 13 then, undertook to do the housekeeping, and it was at this time that the 'Crisco can' incident occurred.

As this episode was related by the children, the defendant and his eldest daughter had gone to do some marketing, and J_____, one of the older boys, was left in charge. There was a carnival or fair in town, however, and J_____ did not remain at his post. When J_____ did return, the defendant struck him a number of times and, according to the eldest daughter, 'pushed his head into a Crisco can.' J_____'s explanation was that 'he [defendant] started to swing at me * * * and I ducked and hit the Crisco can.' The defendant denied any brutality. J_____ received a cut on his forehead which required treatment at a local hospital, and consequently the defendant was charged with assault upon his own child. When the defendant was tried for that offense, the children testified that J_____ received his injury as the result of an accident, and the defendant was acquitted. On this trial, the children testified that the defendant had coached them in their testimony at that time and had threatened them with violence if they did not obey his instruction and testify that J_____ received his injury as the result of an accident. In any event, J_____ still has a visible scar over his right eye as a result of this incident.

For reasons not clearly shown, but apparently because of the repeated incidents involving physical violence inflicted upon his family, the defendant was committed to the Osawatomie State Hospital on September 29, 1960, for psychiatric examination and observation. Though the nature of the proceeding by which the defendant was committed is not apparent, it does appear that the defendant remained at Osawatomie for some three months, during which time he received electric shock therapy. Records produced at this trial show that the defendant was then classified as a manic-depressive psychotic, manic type. The defendant's description of his treatment in the hospital was that 'I took shock treatments, which is about like setting you on fire with electricity, and that is what brought me out of this black out that I was in * * *.' The children were committed to the Kansas juvenile authorities and placed in foster homes, and upon the defendant's release from Osawatomie they were eventually returned to his custody.

In March 1961, the defendant's wife returned to the family home 'because she missed the kids so much,' and acting apparently upon the defendant's assurance that he would not mistreat her again. However, on April 14, the wife appeared in Coffeyville Memorial Hospital, severely beaten. Photographs taken of the defendant mother at this time and introduced in evidence show extensive bruises about her head and face, but reveal no discernible defect scar or other post-operative mark upon her nose. The upshot of this incident was that on April 19, 1961, the defendant was convicted of assaulting his wife and was sentenced to serve one year. The wife testified at the trial that the beatings and violence had become a regular part of her life; according to the record evidence, she testified at that time that the defendant quite often beat her, knocked her to the floor and slapped her back and forth across the face, and that almost any trivial incident would provoke these attacks. The defendant would then become extremely remorseful and would lie upon the floor and cry. In this instance, the defendant did not altogether deny that he had become violent, but his...