S--M--W--, In re
| Decision Date | 07 September 1972 |
| Docket Number | A,F---,M---,P--- and M---,D,C,A---,W--- and M---,No. 25606,P--,S---,L---,25606 |
| Citation | 485 S.W.2d 158 |
| Parties | In reW--- and hildren under seventeen years of age. Harvey G. SEVITS, Juvenile Officer, Plaintiff-Respondent, v.P--- and efendants,ppellant. |
| Court | Missouri Court of Appeals |
Belt & Klinginsmith, Ronald M. Belt, Macon, for appellant.
Frick & Mayberry, Clifford B. Mayberry, Kirksville, for respondent.
In an action instituted on behalf of the State of Missouri by the Juvenile Officer of Adair County, under provisions of V.A.M.S. 211.441, the juvenile division of the Circuit Court of Adair County rendered a judgment terminating the parental rights of F--- A--- P--- and M--- L--- P--- in two of four children born of their marriage. Only F--- A--- P---, the father, appeals.
The petition identifies the two children involved as M--- L--- P---, born October 2, 1959, in Quincy, Illinois, and S--- M--- W--- P---, born May 1, 1958, also in Quincy Illinois. The parents of those children are stated to be M--- L--- P---, their mother, 'presently' residing in Quincy, Illinois, and F--- A--- P---, their father, 'presently' residing at LaPlata, Missouri. (At the time of filing the parents were separated.) According to allegations of the petition the children were made wards of the court on December 6, 1960, and since that date have been under supervision of the Adair County welfare office. The petition prays the court's order terminating the parental rights of the natural father and mother as to the children on grounds that (a) 'defendants for more than one year immediately prior to the filing of this petition have willfully, substantially and continuously neglected said children and refused to give said children necessary care and protection,' and that (b) 'defendants have for more than one year immediately prior to the filing of this petition, being financially able, willfully neglected to provide said children with the necessary subsistence, education and other care necessary for the health, morals and welfare of said children.'
The evidence in this case confirms the allegations of the petition that the children were made wards of the Adair County Juvenile Court following a hearing in December, 1960, and placed under supervision of the Adair County welfare office. Continuously thereafter the two children have remained under jurisdiction of the juvenile court and supervision by the welfare office. Pursuant to the December, 1960, hearing the court further ordered the father to pay $80.00 per month for the support of the two children. Those payments were made until July 10, 1963, at which time the care, custody and control of the children was 'placed back' with the parents under supervision of the Division of Welfare. On October 4, 1963, in accordance will the court's order, the juvenile officer again took custody of the children from the parents. In January of 1964, the court denied the parents' motion to set aside the previous order, and in September of 1964, the parents filed a motion to modify the existing custody order. In November, 1964, the court ordered the Division of Welfare to make an investigation as to the children in their care. Thereafter, on July 7, 1965, the petition instituting this action for termination of parental rights was filed, but the cause lay dormant until after the parents, on February 5, 1970, filed a motion to modify the previous order of custody so as to allow them visitation rights with the children. By due notice, that motion was called up for hearing on March 2, 1970. On that date this suit for termination of parental rights and the parents' motion for visitation rights were both tried and submitted to the court under the same evidence heard.
For reasons later to appear, we will not weigh the evidence to determine the merits of the essential issues raised by the pleadings. Consequently, for the purposes of this opinion, a general outline of the evidence adduced at the trial will suffice. Testimony generally supporting the allegations of the petition was given by child welfare workers employed by the Division of Welfare, the juvenile officer, a neighbor of the parents, and by Mr. and Mrs. R--- L---, foster custodians of the two children under supervision of the Adair County welfare office. The parents testified on their own behalf. The father testified that he had complied with the court's order upon him to pay the $80.00 monthly allowance for his children's support up until July of 1963, but not thereafter, because he was financially unable to do so. He also testified that the welfare worker discouraged him from trying to make the payments, and that recently he had been advised not to make any support payment until visitation was arranged. The two children were interviewed by the court in chambers in the presence of counsel for the parties. They expressed their desire to remain with their foster custodians.
In an extensive memorandum opinion, the trial court found that the allegations of the petition were sustained by the evidence and, specifically, 'that the parents did willfully neglect to provide the children with the necessary subsistence and failed to pay for their care and support while the legal custody of the children was lodged in the foster parents as wards of the court.' The court noted, in reference to the issue of failure to support, that the petition for termination was filed in 1965 and that 'the allegation was as to failure to support prior to that time.' However, the court observed, the issue as tendered by the parties was failure to support to the present time (1970). The court considered the petition to have been amended to that effect and found there was substantial evidence parental rights would necessarily require that their motion to modify the existing custody provision so as to allow visitation be overruled. Judgment of termination was entered in accordance with the court's findings.
Defendant father, hereinafter referred to as appellant, first complains that the petition does not state a cause of action because it fails to state the sex and residence of the children as required by V.A.M.S. Sec. 211.451, which provides, in part, that 'The petition for termination of parental rights shall include: (1) The name, sex, and date and place of birth and residence of the child; * * *.' Hence, appellant argues, the court to which the petition was addressed acquired no jurisdiction. We attribute no validity to this proposition. The petition designates the children by their respective Christian names M--- L--- and S--- M---, which, by universal understanding, clearly connote that the child named M--- L--- is of feminine gender and that the child named S--- M--- is of the masculine sex. Nor do we find any reason to consider that the petition failed to allege the children's residence. It is clearly stated therein that they were 'residing in Adair County, Missouri.'
Appellant's next complaint of error is that notwithstanding 'the parents filed a written demand for a jury they were not granted a trial of the issues by a jury', relying upon V.A.M.S. Sec. 211.481, which provides that 'a parent by written demand shall be granted a trial of the issues by a jury.' Appellant correctly asserts that written demand for a jury trial was filed. The date of that filing was August 11, 1965, four and a half years prior to the trial. However, when the cause came on for hearing on March 2, 1970, the parents entered into trial before the court without objection and without further reference to their demand for a jury. By so doing they waived their right to a jury trial. Section 510.190 V.A.M.S. and Civil Rule 69.01(b) expressly provide that 'Parties shall be deemed to have waived trial by jury * * * (4) By entering into trial before the court without objection.' 1
Appellant next contends that no investigative social study was made and filed with the court, as is required by Section 211.491 V.A.M.S. That statute reads as follows:
'In all proceedings for termination of parental rights of a child, except in cases where the parents have consented to the termination or have abandoned the child, an investigation and social study shall be made by the juvenile officer, the state division of welfare, or other public or private agency authorized or licensed to care for children as directed by the court and a written report shall be made to the court to aid the court in determining whether the termination is in the best interest of the child, and it shall include such matters as the parental background, the fitness and capacity of the parents to discharge parental responsibilities, the child's home, present adjustment, physical and mental condition and such other facts as are pertinent to the determination.'
Such omission, appellant submits, is a fatal procedural error. In the alternative, he suggests that if such study was, in fact, made, and a report thereof was submitted to the court, 'the trial court held the existence of the report to be privileged information.' We accept...
To continue reading
Request your trial
-
Denningham v. Denningham
...(D.C. 1964); Scott v. Scott, 415 A.2d 812 (D.C. 1980); Oltmanns v. Oltmanns, 265 Minn. 377, 121 N.W.2d 779 (1963); In re S______ M______ W______, 485 S.W.2d 158 (Mo.App. 1972); Hosking v. Hosking, 318 So.2d 559 (Fla.App. 1975); Comment, Use of Extra-Record Information in Custody Cases, 24 U......
-
Miller, Matter of
...903, 905 (App.Ct.1st Dist. 1972). A litigant must be given a full opportunity to be heard with all rights related thereto. In Re S-M-W, 485 S.W.2d 158 (Mo.App.1972). As noted by the courts quoted from, supra, a notion of fairness is included within the concept of procedural due process. In ......
-
Williams v. Board of Ed., Cass R-VIII School Dist., R-VIII
...79 S.Ct. 1400, 3 L.Ed.2d 1377; Roth, supra, 408 U.S., l. c. 577, 92 S.Ct. 2701; Sindermann, supra, 408 U.S., l. c. 597, 92 S.Ct. 2694; In Re S M W , supra. The appellant Williams makes the final contention that the decision of the Board was unsupported by substantial and competent evidence ......
-
M.J.S. v. K.E.S.
...Myers v. Moreno, 564 S.W.2d 83, 86 (Mo.App.1978); In Interest of D.L.D., 701 S.W.2d 152, 158-59 (Mo.App.1985). See also In re S.M.W., 485 S.W.2d 158, 163 (Mo.App.1972). Furthermore, it is the office of the petition to provide such notice, so that one whose rights are challenged may know wha......