Officer v. W.B.

• Court: Missouri Court of Appeals
• Writing for the Court: Karen King Mitchell, Presiding Judge
• Citation: Officer v. W.B., 472 S.W.3d 242 (Mo. App. 2015)
• Decision Date: 06 October 2015
• Docket Number: WD 78428
• Parties: In the Interest of J.B. Juvenile Officer, Respondent, v. W.B. (Father), Appellant.

472 S.W.3d 242

In the Interest of J.B.

Juvenile Officer, Respondent,

v.W.B. (Father), Appellant.

WD 78428

Missouri Court of Appeals, Western District.

Opinion filed October 6, 2015

John R. Shank, Jr., and Matthew J. Chiasson, Kansas City, MO, Attorneys for Respondent.

Ryan F. Kaiser, Kansas City, MO, Attorney for Appellant.

Before Division Three: Karen King Mitchell, Presiding Judge, and Lisa White Hardwick and Anthony Rex Gabbert, Judges

Karen King Mitchell, Presiding Judge

W.B. (Father) appeals the juvenile court's judgment finding his son (Child) in need of the care and protection of the court. Father raises three claims on appeal: (1) there were insufficient facts pled in the petition to vest the juvenile court with jurisdiction over Child; (2) there was insufficient evidence presented at the adjudication hearing to support the juvenile court's exercise of jurisdiction over Child; and (3) the juvenile court failed to make sufficient findings in its judgment to support its exercise of jurisdiction over Child in that the findings did not establish that removal of Child from Father's care was necessary. Because Father's second point has merit, we reverse the judgment of the juvenile court.

Background

Child was born prematurely, after only 25 weeks of gestation. Because of Child's premature birth, he had many complications, requiring intensive medical care. Accordingly, Child remained hospitalized for fourteen weeks following his birth. As a result of his medical complications, Child will need numerous and frequent follow-up visits for occupational therapy, speech therapy, and physical therapy. The success of these additional therapies depends greatly on parental involvement at home.

Before Child was released from the hospital, the Clay County Juvenile Officer filed a petition for protective custody, alleging that "the parents or other persons legally responsible for the care and support of the child neglect or refuse to provide proper support, medical, surgical or other care necessary for his well being." The petition asserted that "[t]he parents, at the time of the expected discharge, have been unable to demonstrate sufficient competency necessary for the proper care of a child with extraordinary medical needs." It further alleged:

2. [Mother] has birthed other children who she does not prov[ide] care for; four of which the parental rights were terminated in New Mexico in April 2014 in an adversarial proceeding;

3. [Father] was involved with Child Protective Services in New Mexico. [Father] admits that [Father's] mother, [E.B.,] has been caring for his other three children since 2003 and he fails to provide for their care or support;

4. [Father] states he is receiving full disability due to mental health issues. He reports his mental health is untreated which results in his inability to provide safe care for the child on a continual basis;

5. Reasonable efforts have been made to prevent or eliminate the need for removal of [Child] from the home, or in the alternative and under the circumstances, reasonable efforts either would have been futile, or an emergency existed;

6. [Child] is in need of the care and protection of the Court.

The juvenile court thereafter entered an order for protective custody on the ground that "the parents fail to provide proper care, custody and control," and set the matter for a hearing.

At the adjudication hearing, the court received testimony from Dr. Okunola Oluola (Child's treating physician at Children's Mercy Hospital), Jennifer Wilson (a social worker for Children's Mercy Hospital), Mary Rogers (a registered nurse at Children's Mercy Hospital who worked with the family for one night during Child's fourteen-week stay), Rebecca Nunnelly (a registered nurse at Children's Mercy Hospital who worked with the family the first two days of Child's last five days in the hospital), Mother, and Father.

Dr. Oluola testified about the various complications, as well as treatments that Child required as a result of his premature birth. When asked about Mother and Father, Dr. Oluola testified that both parents were involved and ready to do what they could for Child.¹ Dr. Oluola had no negative impressions of the parents or their commitment to Child.

Wilson, the social worker, testified that Father had reported to her that he had been diagnosed with bi-polar disorder, but that he was not receiving treatment at that time. Wilson also testified that Father had reported a history of illegal drug usage, but claimed that he had been sober for the past year. Wilson testified that she had no reason to doubt Father's representation of sobriety. Wilson recalled a single incident where she asked the parents to be at the hospital to feed Child at 8:00 a.m., but Mother refused, indicating only that it was "too early for them," and that she would come before the 11:00 a.m. feeding. Wilson did not seek any further information from Mother and did not report talking to Father about the 8:00 a.m. feedings. When asked about her interaction with the parents, Wilson indicated that the parents were appropriate, cooperative, and appreciative of services offered. She also testified that, in response to directions from Children's Division, the parents had secured housing. Wilson had no doubts about the parents' commitment to Child.

Nurse Rogers recalled one instance where Father unintentionally nodded off at Child's bedside, which was a violation of Children's Mercy Hospital rules. After she woke him up and explained the rules, Father apologized, and Nurse Rogers never saw him drift off again. Rogers also recalled an incident wherein Mother had trouble assembling the bottle for feeding, but Father showed Mother how to do so, and Father then fed Child. Rogers testified that Father performed most of the care—feeding Child, changing clothes, changing diapers, etc.—while Mother simply observed. Rogers believed that Father was committed to Child.

Nurse Nunnelly testified that, before children are released from Children's Mercy, families are given care instructions and then placed in a special environment where the families perform the care, but Children's Mercy staff can observe them to ensure the care is proper. Nunnelly worked with the family the day before the observation period began, as well as the first day of observation. During that time, Nunnelly had to remind the parents to change Child's diaper once and check Child's temperature; she observed one time when Child's hat was left off, causing Child to become hypothermic and requiring intervention to warm him back up.

Nunnelly also testified that Mother had trouble measuring Child's medication.

Mother offered no evidence; in response to every question, she advised the court that she was "plead[ing] the 5th."

Father testified that he was receiving Social Security Income for mental health issues, though he was unsure of their nature. Father indicated that he was not then receiving treatment, though he had received counseling and medication in the past. Father testified that his mental health issues did not, in any way, limit his ability to complete basic daily tasks, such as driving, grocery shopping, paying bills, or performing domestic chores.² Father acknowledged that he had three other children that he voluntarily placed in the guardianship of his mother, sister, and brother-in-law. Father testified that the guardianship was his own choice and he felt that it was best for his children because he was in a "rocky" marriage at the time.³ Father testified that his other children were doing "wonderful," and he did not think it would be good to move them from their home in New Mexico to Missouri with him. Father testified that he loves Child and is committed to him. In an effort to understand Child's medical needs, Father has been reading books on preemies and their associated disabilities, inquiring of family members as to how to find resources, and questioning medical staff about subjects he does not understand. Father also enrolled in Parents as Teachers, which he participates in once per week and learns about different developmental stages and how to interact with a child. Father visits Child once per week for two hours at a time, and the visits have been going well. Father indicated that, if someone gave him a lesson or suggestion about Child's needs, he would follow it.

After receiving this evidence, the juvenile court stated: "I'm going to find that the child is in the need of care of the Court and put the child under the jurisdiction of the Court due to the child's needs and the parent[s'] inability at this time to care for the minor child."⁴ The court then moved on to the dispositional phase of the hearing.

Counsel for the Juvenile Officer then offered the following exhibits: Exhibit 3 (Report of Social Services); Exhibit 4 (Social Investigation Report); Exhibit 5 (proposed Form 14); Exhibit 6 (Report of the Department of Social Services); and Exhibit 7 (written report of the court-appointed special advocate). The court received the exhibits without objection. The court then indicated:

I'm telling you what I want these parents to do before I modify it and let the baby go home. They need some more parenting classes; dad needs to have a psych evaluation; mom needs a psych evaluation and they need to be compliant with whatever that psych evaluation asks for.

The court further indicated that the Parents as Teachers classes, alone, were insufficient; the court wanted the parents to "take advantage of whatever they can get." Father appeals.

Standard of Review

" ‘Review of juvenile proceedings is analogous to review of court-tried cases.’ " B.T.O. v. M.O., 91 S.W.3d 745, 748 (Mo.App.W.D.2002) (quoting In re T.B., 936 S.W.2d 913, 914 (Mo.App.W.D.1997) ). "Accordingly, we will disturb the juvenile court's order only if there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Id. "We defer to the juvenile court on...