Young v. Pitts

• Decision Date: 15 February 2011
• Docket Number: Nos. WD 71794,WD 72124.,s. WD 71794
• Citation: 335 S.W.3d 47
• Parties: William Allen YOUNG, Respondent,v.Chasity L. PITTS, Appellant.
• Court: Missouri Court of Appeals

335 S.W.3d 47

William Allen YOUNG, Respondent,

v.Chasity L. PITTS, Appellant.

Nos. WD 71794

WD 72124.

Missouri Court of Appeals, Western District.

Feb. 15, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied March 29, 2011.

Application for Transfer Denied

April 26, 2011.

Michael C. McIntosh, Independence, for appellant.Michele C. Puckett–Burkhead, Cameron, for respondent.Before Division II: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.KAREN KING MITCHELL, Judge.

Chasity Pitts (“Mother”) appeals the judgment of the Circuit Court of Caldwell County (“motion court”) modifying a prior judgment and parenting plan setting forth terms of custody of Mother's daughter, R.Y. (“Daughter”). Mother claims that the motion court erred in denying her motion for disclosure of Department of Social Services (“DSS”) investigative records ¹ pertaining to alleged abuse of Daughter by Mother's husband, Steve Pitts. Mother offers two reasons for her claim of error: (1) that the statute dealing with confidentiality and release of DSS records, section 210.150,² is unconstitutional as it violates due process; and (2) that the motion court's finding that the DSS's refusal to release the records to Mother was based upon concern for a person's life or safety was not supported by any evidence in the record. Mother also claims that the motion court abused its discretion in establishing a seven-and-one-half-hour time limitation on the presentation of her case at the motion hearing. We affirm the judgment of the motion court and deny the pending motion to transfer this appeal to the Missouri Supreme Court. We also dismiss Father's appeal of the award of attorney's fees.³

Factual and Procedural Background⁴

On November 15, 2007, the circuit court entered a judgment of paternity, custody, visitation, and support. In the judgment, joint legal and joint physical custody of Daughter was granted to Mother and William Allen Young (“Father”), with Mother's residence designated as residence for mailing and educational purposes. Father was ordered to pay child support in the amount of $450 per month. Per the original parenting plan, Father had Daughter every other week from Thursday evening until the following Tuesday evening, plus certain holidays and some summer vacation time, with Mother having Daughter the remainder of the time. After Daughter was to start Kindergarten, Father was to have Daughter on the first, second, and fourth weekends of each month, plus the holidays, with Mother to have Daughter at all other times.

In January 2008, someone made a hotline call to the DSS alleging that Mother and/or Pitts had abused Daughter sexually. After investigation, the allegations were found to have been unsubstantiated. In May of 2008, allegations of sexual abuse were made again. This time the allegations were found to have been substantiated as to Pitts.⁵ On July 24, 2008, after the second set of allegations of sexual abuse was made against Pitts,⁶ the visitation schedule was temporarily modified. The court granted Mother supervised visitation on Mondays from 7 a.m. to 3 p.m., on Fridays from 3 p.m. to 9 p.m., and every other Sunday from 7 a.m. to 3 p.m., with Pitts not to be present.

On June 4, 2008, Mother filed a motion to modify custody, alleging, among other things, that Father made repeated unsubstantiated calls claiming abuse of Daughter by Mother and Pitts. Mother requested that the motion court grant her sole legal custody with Father having supervised visitation. Father filed a counter-motion asking for sole legal custody and alleging that Pitts had sexually abused Daughter and that Mother had failed to protect Daughter from Pitts's abuse.

During pre-trial discovery, Mother served the DSS with a subpoena seeking access to the records concerning the two investigations. The DSS moved to quash the subpoena and later moved the court to dismiss Mother's resulting motions to compel discovery and for contempt against the DSS. The DSS asserted that it would not release the records pertaining to the abuse allegations against Mother and Pitts because some of the records were “law enforcement records which remain confidential during a criminal investigation.” The DSS continued that it “would not be providing records of [its] Children's Division pursuant to [section] 210.150 without information from the prosecutor that charges have been filed or the investigation is concluded with no charges filed.”

After a hearing on September 30, 2008, the motion court denied Mother's motions to compel discovery and for contempt against the DSS. The docket sheet states that the “[c]ourt does not require Children's Division to release information requested by [Mother] as the Children's Division believes release of such information may place life of juvenile in danger; therefore release of information will not be made pursuant to Section 210.150.4.”

At the final hearing on the respective motions to modify custody, the court reiterated that “since no criminal charges have been filed ... the reports are confidential and should not be turned over to either of the parties.”

On November 10, 2008, a hearing on temporary custody was held. The final hearing on the motions to modify custody was held on February 23, February 26, and April 30, 2009.⁷ At the final hearing, testimony began with Mother, who testified that Father's house was “nasty” and “very cluttered” with seven people living in a very small house. She also testified that Daughter was not kept clean when she was in the custody of Father and his wife (“Stepmother”). Mother's testimony then addressed the two allegations of sexual abuse made against her and Pitts. She testified that the first allegations against her and Pitts were found to be unsubstantiated and that the later allegations were found to be unsubstantiated as to her. After the second allegation, Pitts was ordered to have no contact with Daughter. Mother testified that she did not believe that “the substantiated [finding] was properly substantiated” and that she believed the allegations were made to deny her parenting time with Daughter. However, Mother acknowledged that Daughter had told a number of people, in Mother's presence, that Pitts had touched her inappropriately.

Mother testified that, after the first allegations, Pitts was no longer left alone with Daughter, except for two times when Pitts picked Daughter up from daycare and brought her to Mother's workplace. Mother testified that, after the second allegations, Daughter had not had any contact whatsoever with Pitts. Later, however, Mother testified that Pitts would sometimes enter their forty-acre property where Mother's home was located during Mother's visitation time with Daughter when Pitts knew that Mother and Daughter would not be there. Mother admitted that one time, when she and Daughter were returning home from an outing, Pitts was just leaving the property and the two cars met each other in the driveway. Mother also testified that shortly before the final hearing, she had made a hotline call to report that Daughter had been touched inappropriately by her five-year-old stepbrother while Daughter had been visiting Father's home.

The Daughter's guardian ad litem (“the GAL”) stated in closing that she was concerned that Pitts did not understand what “no contact” meant.⁸ There was evidence that Daughter reported seeing Pitts after the no contact order was in place. In response to these reports, the GAL went to Mother's house for a home visit one evening during Mother's visitation time with Daughter. Mother testified that on that visit, the GAL ran into Pitts sitting in his car on the property, two-tenths of a mile from the house. Subsequent to this visit, the motion court ordered Pitts not to be present on the forty acres on which Mother's house was located during visitation.

Pitts also testified at the hearing. He stated that when Daughter was getting ready for bed at night, he would lie down by her and scratch her back and her belly until she was comfortable, which would take about five or ten minutes. Pitts did not see anything wrong with this nighttime routine, and it continued after the first allegation of abuse although, unlike before, Mother was present in the room when this occurred. Pitts stated that he never touched Daughter inappropriately, although he did, until the first allegations were made, bathe her and wipe her after she used the toilet. Pitts admitted that after the allegations of sexual abuse were made, Mother never asked Pitts whether he had touched Daughter inappropriately because “[s]he didn't have to. She knew better.”

Father testified that Daughter had reported to him “several times” that she had seen Pitts, even after the court had ordered Pitts to have no contact with Daughter. Father testified that Daughter had reported to him on more than one occasion that Pitts had touched her inappropriately. Similarly, Stepmother testified that Daughter had told her on a number of occasions that Pitts had touched her inappropriately.

Noting that the Daughter stated repeatedly that Pitts had touched her inappropriately and that “we will not ever know” whether Daughter was abused, the GAL recommended that the court give legal and physical custody to Father. The GAL stated in closing argument that Mother “completely denied that there was even a possibility that anything occurred” and that it's very unfortunate that a parent hears from a child that something has happened to her and does not even ask—does not even take the time to ask her spouse.... [F]rankly, not to even take the time to ask and not to follow up on the things that should be done in order to make sure that the child is protected, I feel like that is the issue, for me, in this case ... and most of the reason why I have made the recommendation.

The motion court issued a judgment that referenced testimony from the final hearing and also...