S.H. v. O.M.H., 57621

• Citation: 796 S.W.2d 71
• Decision Date: 11 September 1990
• Docket Number: No. 57621,57621
• Parties: In the Interest of S.H., et al., Juveniles, Respondents, v. O.M.H., Appellant.
• Court: Missouri Court of Appeals

Page 71

796 S.W.2d 71

In the Interest of S.H., et al., Juveniles, Respondents, v. O.M.H., Appellant.

No. 57621.

Missouri Court of Appeals,

Eastern District,

Division Two.

Sept. 11, 1990.

Margaret Ellen Gangle-Casinger, Rock Hill, Jeffress B. Hailand, Stephen Michael Ryals, Clayton, for appellant.

Andrew Thomas Kotschar, St. Louis, for respondents.

GARY M. GAERTNER, Presiding Judge.

Appellant, O.M.H., appeals from an order of the Circuit Court of the City of St. Louis granting physical custody of her five children to S.B., the putative father of the children. We affirm.

The five children whose interests were at stake were born to O.M.H. and S.B. out of wedlock and are between the ages of 6 and 10 years of age. The Missouri Division of Family Services (Division) had monitored the care of the children since 1984. While O.M.H. and S.B. never lived together after 1984, they apparently would share in the custody of the five children. According to the social service worker assigned to the case, O.M.H. had difficulty maintaining her own apartment and moved in with relatives when searching for a new residence. S.B. would take custody and care for the children while O.M.H. was looking for this new residence.

Sometime around July of 1989, O.M.H. moved in with her sister. When her sister moved from the apartment, O.M.H. maintained it and took custody of her five children from S.B. On July 7, 1989, the Division's social service worker paid O.M.H. a visit to inspect the living quarters and condition of the children. This visitation precipitated the present action.

The social service worker testified that the children greeted her dressed in extremely dirty underwear and smelled of urine. O.M.H. instructed the children to get dressed and, when they hesitated to do so, O.M.H., in the presence of the social service worker, swung a phone cord or extension cord in their direction, striking one of the children. O.M.H. stopped swinging the cord only upon the request of the social service worker who feared that O.M.H. might hurt the children. When the children returned dressed, their clothing was also extremely dirty and the worker stated that their skin was covered with dust or dirt.

Based on the foregoing, five separate petitions were filed, each charging that O.M.H. was not providing her children with the proper care, custody or support pursuant to RSMo § 211.031.1(1)(b) (Supp.1989). The children were taken by the Division on July 12, 1989, and a hearing was held on November 15, 1989.

Sometime prior to this hearing, O.M.H. moved to Milwaukee, Wisconsin to take up residence. She lives in Milwaukee with her sister and sister's two children. Apparently, appellant was not employed in Milwaukee and, as far as the record shows, was not employed when she lived here in St. Louis.

The trial court, after considering all of the foregoing, found that O.M.H. had neglected to provide the children with the proper care, custody and support. The court also found that the putative father, S.B., had not neglected the children nor was he unable to care for them. Although the State had sought to deny S.B. custody, the court ordered that custody be given to S.B. with his understanding that he cooperate with the Division of Family Services.

O.M.H. appeals the court's grant of custody to S.B. and asserts that this decision was against the weight of the evidence. ¹ Appellant contends that the record shows that the children's best interests would have been promoted by returning their custody to her. We disagree.

To assert jurisdiction, the juvenile court must find clear and convincing evidence that the children are in need of care and that this need...