Of v. Greene Cnty. Juvenile Officer

• Decision Date: 24 October 2018
• Docket Number: No. SD35445,No. SD35446 Consolidated,SD35445,SD35446 Consolidated
• Parties: In the Interest of D.S.H. and D.M.H. D.K.T., Appellant, v. GREENE COUNTY JUVENILE OFFICER, Respondent.
• Court: Missouri Court of Appeals

In the Interest of D.S.H. and D.M.H. D.K.T., Appellant,
v.
GREENE COUNTY JUVENILE OFFICER, Respondent.

No. SD35445
No. SD35446 Consolidated

Missouri Court of Appeals Southern District Division One

October 24, 2018

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Calvin R. Holden

REVERSED AND REMANDED

D.K.T. ("Father") appeals from the judgments terminating his parental rights to his children, D.S.H. and D.M.H. (referred to collectively as "the Children"), on the statutory grounds of abuse and neglect and failure to rectify.¹ See section 211.447.5(2)-(3).² He raises four points on appeal, challenging the denial of his request for a continuance (point 1), the admission of certain hearsay testimony (point 2), and the sufficiency of the evidence supporting some of the statutory grounds for termination (points 3 and 4). Finding merit in Father's second point and

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that the resolution of that point is dispositive of this appeal, we reverse the trial court's judgments and remand for a new trial.

Factual and Procedural Background

In reviewing a judgment terminating parental rights, we view the evidence and reasonable inferences that can be drawn therefrom in the light most favorable to the trial court's judgment. In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005).

D.M.H. and D.S.M. were born in September 2012 and December 2013, respectively. In the period of time between their births, Father was arrested and charged with felony cocaine possession. He later pleaded guilty to the charge and, in February of 2015, was sentenced as a prior drug offender to a term of ten years in the Department of Corrections.

Thereafter, on October 9, 2015, the Children's Division of the Department of Social Services, citing parental neglect, placed the Children into protective care. On December 19, 2016, the Greene County Juvenile Officer ("the Juvenile Officer") filed petitions ("the TPR petitions") to terminate Father's parental rights to the Children and the parental rights of the Children's mother ("Mother"), who thereafter died before trial.

The trial on the TPR petitions took place on December 12, 2017. Among the Juvenile Officer's evidence were Child Advocacy Center records ("the CAC records"), which included video interviews of the Children's half siblings by Mother, L.R., Jr., and J.H (referred to collectively as "the half-siblings"), detailing abuse allegations against Father. According to their statements, Father would "beat up" Mother using brass knuckles. L.R., Jr., witnessed Father "punch [Mother] in the arm, kick [Mother] in the legs, and pull [Mother]'s hair." During one such incident, Father "pointed a gun at [L.R., Jr.,] and told him he would kill him." Father also physically abused L.R., Jr., in that he "hit [him] in the head with a metal hanger" and "hit [him]

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in the leg[,]" causing bleeding and bruising, respectively. J.H. "reported having to bite [Father] and stabbing him with a butter knife when he was beating up [Mother]."

Father objected to the admission of the CAC records, arguing that the half-siblings' statements were hearsay and that "[t]he P.K.A. case, which provides for a child hearsay exception, . . . does not extend to children who are not the subject of the instant litigation[.]" This objection was overruled, and the CAC records were received into evidence.

The trial court thereafter entered judgments terminating Father's parental rights to the Children. In each, the trial court concluded, inter alia, that termination of Father's parental rights was supported under the statutory grounds of section 211.447.5(2) (abuse and neglect) and section 211.447.5(3) (failure to rectify). Regarding section 211.447.5(2), the trial court found that termination was supported under subsections (c) physical, emotional, or sexual abuse, and (d) failure to provide adequate parental support. Relying on the CAC records, the trial court found that "[the half-siblings'] disclosures of physical and emotional abuse to be consistent and credible" and found Father's testimony to the contrary not credible.

Father timely appeals and presents four points for our review. Father's second point is addressed first and is dispositive.

Discussion Point 2 - Trial Court Abused its Discretion in Admitting the CAC Records

In his second point, Father contends that "[t]he trial court erred in admitting [the CAC] records concerning allegations of abuse made by [the half-siblings] because admitting such evidence was an abuse of discretion in that the records were inadmissible hearsay that did not come within any recognized hearsay exception." Father also asserts the erroneous admission of these statements prejudiced him, thereby requiring that the trial court's judgments "be reversed and [the cases] remanded for a new trial."

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"[S]ubstantial deference is given to the trial court's determinations regarding the admissibility of evidence, which will not be disturbed absent an abuse of discretion." Dodson, 491 S.W.3d at 552 (internal citations omitted). Moreover, we review the admission of evidence for prejudice, not mere error. White v. R.L. Persons Constr., Inc., 503 S.W.3d 339, 345 (Mo.App. 2016).

Generally, courts exclude hearsay because the out-of-court statement is not subject to cross-examination, is not offered under oath, and is not subject to the fact finder's ability to judge demeanor at the time the statement is made. However, exceptions to the general prohibition against hearsay may apply when circumstances conspire to assure the trustworthiness of the declarant's statement despite the absence of cross-examination, the oath, and the fact finder's ability to observe the declarant's demeanor.

Bynote v. Nat'l Super Markets, Inc., 891 S.W.2d 117, 120 (Mo. banc 1995).

Father and the Juvenile Officer both recognize and acknowledge that the CAC records constituted hearsay and that, to be admissible, must fall within a recognized hearsay exception. What the parties dispute, however, is the applicability of the hearsay exception articulated in In re Marriage of P.K.A., 725 S.W.2d 78 (Mo.App. 1987) ("the P.K.A. exception").

The P.K.A. exception "applies to non-jury sexual abuse cases where (1) the best interest of the child is the primary concern; (2) sexual abuse may have occurred, or has been threatened; (3) the child might not be competent or reasonably expected to testify to it; and (4) there is a substantial basis that the statements are true. In Interest of S.M., 750 S.W.2d 650, 654 (Mo.App. 1988) (citing P.K.A., 725 S.W.2d 78). The exception has been expanded to also include statements of physical or emotional abuse. In re A.A.T.N., 181 S.W.3d 161, 170 (Mo.App. 2005); see also Hord v. Morgan, 769 S.W.2d 443, 447 (Mo.App. 1989).

Father argues that the P.K.A. exception does not apply to the half-siblings' statements and posits two reasons in support. First, the alleged abuser in P.K.A. was the parent of the declarant child, whereas here the alleged abuser is not related to the declarant half-siblings.

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Second, the best interests of the declarant child was at issue in P.K.A., whereas the best interests of the declarant half-siblings here were not at issue before the trial court.

P.K.A. and every Missouri case thereafter applying the P.K.A. exception to affirm the trial court's admission of a child's hearsay statement involved a parent of the declarant child, and the declarant child's best interest was at issue in the proceeding. In re B.M.O., 310 S.W.3d 281, 287 (Mo.App. S.D. 2010) (termination of mother's parental rights to her declarant children); Pope v. Child Abuse & Neglect Review Bd., 309 S.W.3d 362, 366 (Mo.App. E.D. 2010) (Child Abuse and Neglect Review Board administrative determination that father abused his declarant daughter); In re A.A.T.N., 181 S.W.3d 161, 169 (Mo.App. E.D. 2005) (termination of father's rights to his declarant daughter)³; D.L.H. v. H.T.H., 780 S.W.2d 104, 105 (Mo.App. E.D. 1989) (parents' dissolution of marriage custody proceeding involving declarant son's observations of his father's abusive conduct); Hord v. Morgan, 769 S.W.2d 443, 446 (Mo.App. W.D. 1989) (parents' modification of custody involving...