S----- A----- J-----, In Interest of

• Decision Date: 30 September 1991
• Docket Number: No. 17275,17275
• Parties: In the Interest of S_____ A_____ J_____ and S_____ L_____ J_____, children under seventeen years of age. Perry W. EPPERLY, Chief Juvenile Officer of Greene County, Missouri, Respondent, v. E_____ G. J_____, Appellant.
• Court: Missouri Court of Appeals

Page 690

818 S.W.2d 690

In the Interest of S_____ A_____ J_____ and S_____ L_____ J_____, children under seventeen years of age Perry W. EPPERLY, Chief Juvenile Officer of Greene County Missouri, Respondent, v. E_____ G. J_____, Appellant.

No. 17275.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 30, 1991.

Motion for Rehearing or to Transfer to

Supreme Court Denied Oct. 22, 1991.

Application to Transfer Denied Dec. 17, 1991.

Scott B. Tinsley, Springfield, for appellant.

Kay A. Van Pelt and F. Richard Van Pelt, Springfield, for respondent.

CROW, Judge.

On April 11, 1989, the Chief Juvenile Officer of Greene County commenced a proceeding to terminate the parental rights of H_____ S_____ J_____ C_____ and her former husband, E_____ G. J_____, to their daughter, S_____ A_____ J_____, born September 23, 1982, and son, S_____ L_____ J_____, born August 16, 1984. For convenience, we henceforth refer to the daughter as "A_____" and the son as "L_____."

The trial court heard four days of evidence. The father (E_____ G. J_____), henceforth referred to as "appellant," appeared in person and with counsel, and vigorously resisted termination. The mother, henceforth referred to as "H_____," was evidently served by publication. H_____ failed to appear at any time during the termination proceeding.

On November 9, 1990, the trial court entered an order terminating the parental rights of both parents to both children. Appellant brings this appeal from that order. H_____ did not appeal.

Inasmuch as appellant challenges the sufficiency of the proof to justify termination, a summary of the prodigious evidence is required. In synopsizing it, we observe the well established rule that the evidence and all reasonable inferences which may be drawn from it are considered in the light most favorable to the judgment. In the Interest of W.D.T., 785 S.W.2d 286, 287 (Mo.App.1990); In the Interest of B.C.H., 718 S.W.2d 158, 160 (Mo.App.1986); In re B.G.S., 636 S.W.2d 146, 148 (Mo.App.1982).

So viewed, the evidence establishes that on September 23, 1986, appellant and H_____, then husband and wife, were living together in Greene County, Missouri. Their two children were living with them. On that date, H_____, a member of United States Naval Reserve, departed for a "specialist school" in San Diego, California. Because appellant worked at night, H_____ arranged for Brenda Pearson to take care of the children in her absence. The children were customarily with Ms. Pearson from 3:30 p.m., until 7:45 a.m., the next day.

On a date which appears to have been Tuesday, November 4, 1986, while H_____ was still in California, Ms. Pearson informed appellant that A_____ had said appellant "was playing with her pee-pee and showing her brother, [L_____], how to play with her pee-pee." Appellant telephoned Daniel V. Taub, a clinical psychologist, and told him of the allegation. On the advice of Taub, appellant scheduled an appointment for A_____ to be evaluated by Dr. Joyce Tinsley at Burrell Mental Health Center. The appointment was for Thursday afternoon, November 6.

At 8:50 p.m., November 4--the day Ms. Pearson informed appellant about A_____' § allegation--a social service worker of the Missouri Division of Family Services ("DFS") received a "hot line" call regarding the allegation. Because of the lateness of the hour and an assumption the children were safe with Ms. Pearson, the DFS worker and her supervisor decided to leave the children with Ms. Pearson overnight. They asked her to bring the children to the Juvenile Office the next day.

Ms. Pearson brought both children to the Greene County Juvenile Office Wednesday, November 5, 1986. Deputy Juvenile Officer Marilyn Gibson interviewed A_____ using "anatomically correct" dolls. While A_____ was naming the parts of the body on the male doll, A_____ remarked: "Dad had hair. [L_____] did not." Ms. Gibson testified:

"... [A_____] started talking about daddy pinched and pulled at her pee-pee; and she took her hand and was kind of doing a pinching motion....

She ... said, 'It hurt.' And ... she did a thing where she kind of took her hand like this and put her finger and was going like that. And I said, 'Well, when did that happen?' or 'What was going on?' And that's when she said that that's when he sat on top of her, and he had taken her shirt off and didn't have his clothes on.

....

[S]he did also indicate to me that dad had wanted her to lick [L_____'s] pee-pee and that's when she kind of did the tongue movement, and she said something about, 'That was nasty.'

And then I said, 'Did she ever have to kiss dad anywhere?' ... And she said 'that he had wanted her to kiss him on his pee-pee and that he had wanted to kiss her on her pee-pee.' "

At the conclusion of the interview, Ms. Gibson took protective custody of both children. She informed appellant of this between 5:30 and 6:30 p.m., that day (November 5) and requested him to come to the Juvenile Office the next day.

On November 6, 1986, Ms. Gibson filed a petition asking the Juvenile Division of the Circuit Court of Greene County to take jurisdiction of A_____ and L_____ per § 211.031.1(1)(a), RSMo 1986. We henceforth refer to this proceeding as "the neglect case." The petition in the neglect case averred the children's physical, emotional, mental and moral well-being was in jeopardy because of appellant's inappropriate sexual contact and behavior involving them. The Juvenile Division found probable cause to believe it would be required to take jurisdiction and entered an order placing both children in the temporary legal custody of DFS.

The day the neglect case was filed (November 6), appellant, then age 41, kept his appointment with Ms. Gibson. A deputy sheriff and Sarah King, a DFS social worker, also attended the meeting. According to Ms. Gibson, appellant was upset, tearful, and angry because the children had been removed from his custody.

Appellant informed Ms. Gibson about A_____'s appointment with Dr. Tinsley that afternoon. Ms. Gibson stated Dr. Roy Grando would see A_____.

At appellant's request, Ms. King cancelled A_____'s appointment with Dr. Tinsley. Ms. King recalled appellant expressing a willingness to see Dr. Grando. Ms. King added, "[Appellant] denied that he had done anything to hurt his daughter."

According to a medical report, A_____ was examined "for sexual abuse" on November 6, 1986, by a pediatrician. A notation on the report reads: "No evidence of abuse or neglect."

Dr. Grando, a psychologist, performed an evaluation of A_____ November 7, 1986. Dr. Grando testified:

"[A_____] said something along the lines of, 'Daddy rubbed my pee-pee.' I asked her ... what was happening in that situation, and she told me that she had gone into her father's bedroom and lie [sic] down on the bed next to him, and then that he rubbed her pee-pee. She identified as she had identified on a doll with anatomical parts that the pee-pee was the pubic area of the doll. And I asked her ... what her father rubbed her with, and she said, 'His hand.' ...

... She made a statement that she was wearing a nightgown.... And she said that her father was under the covers but he ... didn't have any clothes on.

....

Q. ... Based on your observations and your discussion with [A_____], were you able to come to a conclusion or at least an opinion as to whether [she] had been sexually abused?

A. Yes, I was.

Q. And what was that opinion?

A. That she'd been sexually abused by her father."

H_____ returned from California by airplane Monday morning, November 10, 1986. ¹ Although the record is murky, appellant evidently met H_____ at the airport. H_____ later reported to a DFS worker that while she and appellant were in an automobile, appellant struck her, inflicting bruises. H_____ notified police about the incident and did not return to the marital home.

According to appellant, he checked himself into a hospital for "severe depression" later that day (November 10). He remained there about eight days.

On November 13, 1986, an obstetrician/gynecologist examined A_____. His report reads:

"External genitalia: Hymen is perfectly intact--there is no tear present in the entire circumference & no abrasions are present.

There is a small O sized red area just to the right of the hymeneal ring at 9 o'clock--which could be due to allergy or irritation.

There is no clinical evidence present of sexual abuse."

Nancy Bell, a "treatment worker" for DFS, was assigned the case when the children were placed in DFS custody. Appellant phoned Ms. Bell November 18, 1986, stating he was being released that day from the hospital and wanted to visit the children, who had been in foster care since November 5. A visit was scheduled for November 25 at the DFS office.

During the next few weeks, H_____ and appellant (separately) visited the children on scheduled occasions under DFS supervision.

According to appellant, H_____ filed a petition for dissolution of marriage December 16, 1986.

On January 22, 1987, the Juvenile Division of the Circuit Court, henceforth referred to as "the trial court," held a hearing on the issue of jurisdiction in the neglect case. Appellant appeared in person and with counsel. ² H_____ appeared by counsel, but not in person. The children were represented by their guardian ad litem, a lawyer.

At the outset of the hearing, Deputy Juvenile Officer Gibson filed a second amended petition. It averred the children were without adequate and proper care, custody, support, supervision and parenting, and that their physical, emotional, mental and moral well-being was in jeopardy by reason of A_____'s revelations about appellant. It further pled appellant agreed the children were in need of the care, treatment and services of the court, but that he denied having sexual contact with A_____. Additionally, it averred H_____ had failed, neglected or refused to provide a home for the children since returning from California.

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