E.S., In Interest of

• Court: Missouri Court of Appeals
• Writing for the Court: BERREY
• Citation: E.S., In Interest of, 851 S.W.2d 676 (Mo. App. 1993)
• Decision Date: 16 March 1993
• Docket Number: No. WD,WD
• Parties: In the Interest of E.S., M.D.S., and B.D.S., Minors. R.S. and C.S., Appellants, v. JUVENILE OFFICE OF COLE COUNTY, Respondent. 45304.

Page 676

851 S.W.2d 676

In the Interest of E.S., M.D.S., and B.D.S., Minors R.S. and C.S., Appellants, v. JUVENILE OFFICE OF COLE COUNTY, Respondent.

No. WD 45304.

Missouri Court of Appeals Western District.

March 16, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 27, 1993.

As Modified April 27, 1993.

Application to Transfer Denied May 25, 1993.

Appeal from Cole County Circuit Court; Thomas J. Brown III, Judge. ¹

Michael J. Kuster, Jefferson City, for C.S. Edward Berg, Columbia, for R.S.

Grant W. Smith, Jefferson City, for Juvenile Office.

Thomas Sodergren, Jefferson City, for Guardian Ad Litem.

Before BERREY, P.J., and ULRICH and SMART, JJ.

BERREY, Judge.

RS, the natural mother, and CS, step-father of ES and natural father of MDS and BDS, appeal the trial court's termination of their parental rights to all three children. They contend that the trial court lacked subject matter jurisdiction over the termination proceedings because the court never properly assumed jurisdiction over the matter. They further contend that the court erred in not dismissing the petition for termination because the state failed to meet its duty to provide reunification services and other services essential for the parents to maintain a relationship with the children. We reverse the termination based on the juvenile court's lack of jurisdiction over the matter.

On February 12, 1989, RS ("Mother") and CS ("Father") took ES, age 21 months, to the hospital because of bruising around her ear that Father had noticed. During the examination of ES, the doctor noticed multiple bruises on ES's head and body. The doctor notified authorities and the police department and the juvenile officer investigated the injuries.

Because of the suspicious nature of the injuries, ES remained at the hospital and, on February 13, 1989, the trial court entered an order placing ES in the temporary custody of the Division of Family Services ("DFS") pending completion of the investigation. On February 14, 1989, the juvenile officer filed a petition alleging that ES was a juvenile in need of care pursuant to §§ 210.110(1), ² 210.110(4), and 211.031.1(2)(d). Mother subsequently admitted that she inflicted the injuries upon ES.

On March 27, 1989, after Mother admitted injuring ES, MDS, age 10 months, was placed in the custody of the DFS. On March 29, 1989, the juvenile officer filed a petition alleging that extensive physical injuries had been sustained by MDS's sister, ES, and that their mother admitted inflicting those injuries. The petition prayed that the court make an "Order of Disposition in such manner as it shall find to be in the best interest of the juvenile and in the interest of the State." On April 20, 1989, a hearing was held concerning both ES and MDS after which the trial court directed that both children be made wards of the court and remain in the custody of the DFS for placement in an approved foster home.

On September 12, 1989, Mother pleaded guilty to the class C felony of abuse of a child for the bruises and injuries she inflicted upon ES. On September 19, 1989, BDS, age 18 days, was placed in the custody of the DFS for placement in an approved foster home. The juvenile officer filed a petition alleging the same circumstances as those alleged in MDS's case. The petition further alleged that Mother lacked parenting skills with regard to BDS in that she failed to provide adequate nourishment, clothing, and medical care. On February 6, 1990, a hearing was held concerning BDS during which counsel for Mother, counsel for Father, the Guardian ad Litem, and the juvenile officer stipulated that the Cole County Juvenile Court take jurisdiction over BDS. On February 9, 1990, the juvenile officer amended his petition as to BDS alleging that both Father and Mother lacked parenting skills.

On July 27, 1990, the trial court, by amended order, ordered that ES, MDS and BDS remain in the custody of the DFS for placement in an approved foster home pending further order of the court.

On February 27, 1991, the juvenile officer filed a petition for termination of Mother's parental rights as to all three children and Father's as to MDS and BDS. The natural father of ES relinquished his parental rights. After a hearing on the matter conducted on July 10 and 11, 1991, the trial court entered its findings of fact and conclusions of law terminating the parental rights of Mother and Father pursuant to § 211.447. As to jurisdiction, the trial court states as follows:

That, notwithstanding any prior determination of jurisdiction, the Court has jurisdiction over the children pursuant to Section 211.031.1(1)(a), Section 211.447.2, and more particularly that the provisions of Section 211.447.2(2) RSMo.1986 have been met in that the Court finds that the children were abused or neglected by [Mother] and [Father]....

The trial court found that [Mother] was indicted on the charge of the Class C felony of abuse of a child, to which she pleaded guilty and was sentenced to five years, which sentence was suspended. The trial court further found:

pursuant to Section 211.447.2(3) that [ES], [MDS], and [BDS] have been under the jurisdiction of the Juvenile court of Cole County, Missouri for a period exceeding one year, said jurisdiction first being established as to [ES] on February 13, 1989, as to [MDS] on March 2, 1989, and as to [BDS] on September 18, 1989.

When the juvenile court may terminate parental rights and grounds for such termination are governed by § 211.447.2, which states in part:

The juvenile court may terminate the rights of a parent to a child upon a petition filed by the juvenile officer ... if it finds that the termination is in the best interests of the child and when it appears by clear cogent and convincing evidence that one or more of the following grounds for termination exist:

(1) The child has been abandoned.

. . . . .

(2) The child has been adjudicated to have been abused or neglected.

. . . . .

(3) The child has been under the jurisdiction of the juvenile court for a period of one year....

(emphasis added).

There are no allegations that the children were abandoned. Therefore, in order to terminate the parental rights to these children, the trial court must have found that either the children had been adjudicated as abused or neglected or that they had been under the jurisdiction of the juvenile court for one year.

"Has been adjudicated" implies that the adjudication has occurred in the past. Bearing that in mind and reviewing the orders entered by the court prior to the termination hearing, we find the trial court never adjudicated that these children were abused or neglected. Although there are allegations of abuse stated by the juvenile officer, there is no adjudication of abuse or neglect made for any of the children prior to the termination order. We, therefore, find that the children had not been adjudicated to have been abused and neglected and termination of the parental rights of Mother and Father pursuant to § 211.447.2(2) is improper.

Only one of the grounds for termination enumerated in § 211.447.2 is required to terminate parental rights. M.C. v. D.C., 762 S.W.2d 476, 478 (Mo.App.1988). Therefore, pursuant to 211.447.2(3), if the children had been under the jurisdiction of the juvenile court for a period of one year prior to the termination proceeding, the court had jurisdiction over the matter and could properly determine the rights of the parents.

Because the trial court's orders concerning these children are at issue, they are set forth herein in their entirety. The temporary order as to ES states:

Now on this 13th day of February, 1989, comes Michael W. Prenger, Juvenile Officer for the County of Cole, State of Missouri, and states to the Court that [ES] now comes within the purview of § 211.110(1), RSMo. for abuse, § 210.110(4), RSMo. for neglect and § 211.031(2)(d), RSMo. in that the behavior or associations of the child are otherwise injurious to her welfare and to the welfare of others and it would now be in her best interest to be placed in the temporary custody of the Division of Family Services, pending completion of the investigation, for placement at St. Mary's Health Center, Highway 50 and Missouri Boulevard, Jefferson City, Missouri and upon her release from St. Mary's Health Center she be placed in an approved foster home.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by this Court that [ES] be placed in the temporary custody of the Division of Family Services, pending completion of the investigation, for placement at St. Mary's Health Center, Highway 50 and Missouri Boulevard, Jefferson City, Missouri and upon her release from St. Mary's Health Center she be placed in an approved foster home, pending further Order of this Court.

The initial, temporary order as to MDS states:

Now on this 27th day of March, 1989, comes Michael W. Prenger, Juvenile Officer for the County of Cole, State of Missouri, and states to the Court that [MDS] now comes within the purview of § 210.110(1), RSMo. for abuse, § 211.031(2)(d), RSMo. in that the behavior or associations of the child are otherwise injurious to her welfare or to the welfare of others, § 211.031(1)(b), RSMo. in that the child is otherwise without proper care, custody or support, § 210.110(4), RSMo. for neglect and § 211.031(1)(a), RSMo. in that the parents or other persons legally responsible for the care and support of the child neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for her well-being and that on March 15, 1989 [MDS] was placed in the custody of the Division of Family Services for placement in an approved foster home.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by this Court that [MDS] be, and she hereby is placed in the custody of the Division of Family Services for placement in an approved foster home, pending further Order of ...