N.D., In Interest of

• Decision Date: 30 March 1993
• Docket Number: No. WD,WD
• Citation: 857 S.W.2d 835
• Parties: In the Interest of N.D., N.E.D. and V.D., Minors. JUVENILE OFFICER, Respondent, v. B.J.D., Natural Mother, Appellant. 45691.
• Court: Missouri Court of Appeals

Page 835

857 S.W.2d 835

In the Interest of N.D., N.E.D. and V.D., Minors JUVENILE OFFICER, Respondent, v. B.J.D., Natural Mother, Appellant.

No. WD 45691.

Missouri Court of Appeals Western District.

March 30, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 1, 1993.

Application to Transfer Denied Aug. 17, 1993.

Elton W. Fay, Grimes, Fay & Gaeth, Columbia, for appellant.

Elizabeth K. Magee, Jean Goldstein, Hindman, Scott, Goldstein & Harder, Columbia, for respondent.

Before KENNEDY, P.J., and BRECKENRIDGE and HANNA, JJ.

BRECKENRIDGE, Judge.

B.J.D. (Mother) appeals the decision of the juvenile court terminating her parental rights to her three youngest children, N.D., N.E.D. and V.D., pursuant to § 211.447, RSMo Cum.Supp.1992. ¹ Mother raises five points on appeal alleging that the juvenile court erred in (1) denying Mother's motion for visitation with the three youngest children; (2) denying Mother visitation with her three youngest children without a hearing when the Division of Family Services (DFS) decided not to allow visitation; (3) refusing to admit into evidence Mother's Exhibit A; (4) terminating Mother's parental rights because the decision of the court was against the weight of the evidence; and (5) terminating Mother's parental rights because DFS failed to strictly comply with statutory provisions and agency guidelines. The judgment is affirmed.

This case involves numerous court proceedings, both criminal and civil, and almost two decades of records kept by DFS. Only those facts necessary for the disposition of this appeal will be set forth. B.J.D. is the mother of eight children. The termination proceedings at issue concern only the three youngest children, but all eight children are mentioned in the evidence. N.D. (Father) is not the father of Mother's oldest child but is the father of the other seven children. The following is a list of all eight children, their dates of birth and sex: T.P., September 4, 1971, female; L.P., March 22, 1973, female; D.V.D., April 10, 1975, female; R.D., July 23, 1976, male; Q.D., April 17, 1979, female; N.D., October 24, 1983, male; N.E.D., June 21, 1985, female; and V.D., November 17, 1986, female.

Child abuse allegations in the home of Mother and Father were first investigated in June of 1975 when L.P. sustained severe burns to her body while in the care of Father. As a result of the burns and other scars found on the children, T.P., L.P. and D.V.D. were removed from the home of Mother and Father in August of 1975. The children were returned to Mother late in 1976. Father has been in and out of the home since 1975 due to incarceration and marital problems. On June 10, 1979, Mother filed a report with DFS and the Columbia Police Department alleging that Father had sexually abused T.P., but dropped the charges in July of 1979.

All eight children were removed from the home on April 12, 1988 and both parents were arrested and charged with crimes against T.P., D.V.D. and R.D. On April 13, 1988, an order of protective custody and an order prohibiting contact between the children and their parents were issued by the judge of the juvenile division of the circuit court. The next day, petitions were filed alleging that all eight children were in need of care and treatment of the juvenile court.

On October 6, 1988, Mother was convicted of three counts of felony child abuse and sentenced to seven years imprisonment. On October 28, 1988, Father was convicted of three counts of child abuse, two counts of rape, one count of sodomy and one count of sexual assault and sentenced to 105 years imprisonment. On appeal, his sentence was reduced to 95 years.

On October 13, 1988, Mother filed a Motion to Establish Visitation. On February 23, 1989, the court ruled on Mother's motion and retained the "no contact" order as to the three youngest children. Mother was allowed supervised visitation with the older children. These visits took place nine times in 1989, five times in 1990 and five times in 1991. All five older children did not attend every visit.

All eight children were adjudicated on September 26, 1989, to be under the jurisdiction of the juvenile court pursuant to § 211.031. On November 14, 1989, the court ordered that supervised visitation between Mother and the three youngest children could occur as recommended by DFS. Visitation with the three youngest children was never allowed by DFS because DFS felt it was not in the best interest of the children. DFS withheld visitation because Mother denied that she or Father had abused any of the children, Mother behaved inappropriately during visits with the older children in which she accused them of lying, and blamed them for her incarceration, and Mother refused to accept responsibility for the abuse. Mother repeatedly asked DFS to schedule a visit for her with the three youngest children and on June 26, 1990, she filed a Motion Requesting Visitation. The court denied the motion on September 19, 1990 and her notice of appeal was filed on October 16, 1990. Oral arguments were heard on September 17, 1991. This court found that the order was not a final order for purposes of appeal and dismissed Mother's appeal for lack of jurisdiction. In Interest of N.D., 819 S.W.2d 790 (Mo.App.1991).

Subsequent to the filing of the appeal but prior to oral argument, petitions to terminate the parental rights of Mother and Father as to the three youngest children were filed on January 31, 1991. The three petitions were consolidated for hearing. The Juvenile Officer did not seek to terminate the parents' rights with regard to the five older children. Father consented to the termination of his parental rights under the petitions, and orders terminating his rights were entered. After hearing evidence on the petitions against Mother, the juvenile court found that the older children had informed Mother that Father was physically and sexually abusing them but Mother did nothing to protect the children. The court also found that Mother physically abused the children by whipping them with switches, a belt and an extension cord. N.E.D., one of the female children at issue in this case, told counselors details of physical contact with Father indicating Father had sexually abused her. N.D., the male child at issue in this case, described incidents to his counselors indicating that he had been physically abused by both parents. Mother's parental rights as to the three youngest children were terminated by the juvenile court on November 26, 1991. She filed a timely appeal from such orders.

Mother raises five points on appeal. These points will not be discussed in numerical order. The court will first address the three points regarding termination and then discuss the two regarding visitation.

Mother asserts in her Point III that the juvenile court erred in terminating her parental rights to the three youngest children because the court failed to admit into evidence Mother's Exhibit A and thus failed to consider such evidence in making its decision. Exhibit A was a section from the Alternative Care Manual of the DFS Handbook entitled "Serving the Incarcerated Parent," which Mother offered into evidence on several different occasions during the hearing. The court sustained the Juvenile Officer's relevancy objection each time and refused to admit Exhibit A.

Mother sought to introduce Exhibit A as the DFS guidelines and procedures applicable to her case. Janeene Johnston, a DFS caseworker, testified that the manual did not apply to this case because neither parent was incarcerated at the time the children were removed from the home. She testified the manual was applicable only to a parent incarcerated at the time DFS removed his or her child from the care of the non-incarcerated parent or when it was necessary to notify an incarcerated parent that the child's foster care arrangement had been changed.

Mother's witness, Jim Harrison, was a fourteen-year employee of DFS who currently holds the position of Program Development Specialist for the Department of Social Services. Mr. Harrison testified that written notice to the incarcerated parent, provided for in Exhibit A, "may be a moot issue" when the parents know the children have been removed from the home. He also indicated that notice does not have to be provided in writing and may be given verbally.

Evidence is relevant if it tends to prove or disprove any fact in issue or if it tends to corroborate any other relevant evidence. Reed v. Rope, 817 S.W.2d 503, 510 (Mo.App.1991). The determination of whether offered evidence is relevant is largely committed to the discretion of the trial court. Id. Whether the admission or rejection of evidence results in prejudicial and reversible error is not an issue on appeal in any case tried by a judge without a jury. City of Town & Country v. St. Louis County, 657 S.W.2d 598, 608 (Mo. banc 1983); Eagle v. Swanger, 787 S.W.2d 806, 808 (Mo.App.1990). Even if it was reviewable on appeal, Mother has not shown that prejudice sufficient to reverse resulted from the rejection of Exhibit A, due to the fact that other evidence elucidated the applicable policies and procedures of DFS. Point III is denied.

In Point IV, Mother argues that the juvenile court's decision to terminate her parental rights was against the weight of the evidence because the court disregarded medical and nonmedical testimony proving that termination was not in the best interest of the children. In a court-tried action, the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In Interest of M.L.W., 788 S.W.2d 759, 762 (Mo.App.1990). On appeal, the court will review the facts in the light most favorable to the trial court's judgment. T.S. v. P.S., 797 S.W.2d 837, 840 (Mo.App.1990).

The best interest of...