Juvenile Officer v. F.D. (In re Interest of S.F.M.D.)

477 S.W.3d 626

In the Interest of: S.F.M.D., Plaintiff; Juvenile Officer, Respondent,

v.F.D., (Father), and R.R. (Mother), Appellants.

WD 78265 WITH WD 78279, WD 78333 and WD 78418

Missouri Court of Appeals, Western District.

OPINION FILED: DECEMBER 22, 2015

Darren Eugene Korte, Edward Moore, Kansas City, MO, Counsel for Respondent.

Aristotle Nikos Rodopoulos, (Attorney for Father), Meredyth Anne Vick, (Attorney for Mother), Lisa Renee Robinett (Attorney and Guardian for S.F.M.D.) Kansas City, MO.

Before Division One: Anthony Rex Gabbert, P.J., Victor C. Howard, and Cynthia Martin, JJ.

Anthony Rex Gabbert, Judge

F.D. (Father) and R.R. (Mother) appeal the circuit court's judgment assuming jurisdiction over their minor child, S.F.M.D., concluding that S.F.M.D. was in need of care and treatment, and placing custody of S.F.M.D. with the Children's Division. As set forth below, Father asserts eleven points on appeal and Mother asserts six. We affirm.

Factual and Procedural History¹

On August 29, 2013, when S.F.M.D. was almost four months old, police officers arrived at the Kansas City apartment where Father, Mother, and S.F.M.D. resided in response to a domestic disturbance call. Father was placed under arrest.

After noticing a burn on S.F.M.D.'s leg, the police asked that S.F.M.D. be taken to Children's Mercy Hospital for evaluation. At the hospital, the burn was examined, Mother was questioned by a hospital social worker, and a skeletal survey was performed on S.F.M.D. The skeletal survey revealed no abnormalities. Mother told the social worker that S.F.M.D. received the burn on August 25 when the family dog bumped into Mother's ironing board and her iron fell on S.F.M.D.'s leg. Mother reported that she and Father, who arrived shortly after the accident, had treated the burn with olive oil, Neosporin, and gauze. Mother revealed to the social worker that there was a lengthy history of domestic violence between Mother and Father and that such incidents had intensified after S.F.M.D. got burned. After S.F.M.D. was treated and Mother was interviewed, Mother was placed under arrest for child endangerment, and S.F.M.D. was placed in police protective custody.

On August 30, 2013, the Juvenile Officer filed a Petition alleging that S.F.M.D. was without proper care, custody, and support because Mother neglects his medical needs, specifically referencing Mother's failure to seek medical treatment for the burn on S.F.M.D.'s leg. Later that day, the Family Court issued an Order for Temporary Protective Custody Pursuant to Rule 123.04, placing S.F.M.D. in the custody of the Children's Division. An investigator with the Children's Division was assigned to investigate the circumstances surrounding S.F.M.D.'s burnt leg and allegations of domestic violence between Mother and Father.

On September 2, 2013, Mother met with a caseworker at Truman Medical Center after being released on bail. Mother executed a Petition for Order of Protection against Father that was filed later that day. In her petition, Mother asserted that, on August 28, Father, agitated that Mother had allowed the baby to get burned, had beaten Mother in the head with brass knuckles. She alleged that the following day, Father hit and punched her while she was holding S.F.M.D. in her arms and that Father would not let her leave the apartment. She stated that Father had repeatedly hit her in the preceding week and that she was afraid that he would harm her when he was released from jail. After completing her Petition, Mother was escorted by the police to a shelter for battered women.

On September 3, 2013, Mother told the investigator from the Children's Division that incidents of domestic violence between her and Father had been going on for three months. She told the investigator that she had filed an ex parte order for protection and was staying at a domestic violence shelter. After staying at the domestic violence shelter for one week, Mother returned to live with Father.

On September 18, 2013, S.F.M.D. was taken back to Children's Mercy Hospital for re-examination and was given another skeletal survey. The skeletal survey showed healing fractures on four of the ribs on the child's right side.

On September 30, 2013, Mother's Petition for Order of Protection was dismissed when neither Mother nor Father appeared for the hearing. That same day, the Juvenile Officer filed a First Amended Petition. In the first count, the Juvenile Officer alleged that Mother had neglected the child based upon S.F.M.D. having sustained a leg burn and broken ribs. In the second count, the Juvenile Officer alleged that Father had abused or neglected S.F.M.D. based upon the leg burn, the broken ribs, a general history of violent and criminal acts, and the two instances of domestic violence specifically described by Mother in her Petition for Order of Protection.

The Juvenile Officer's petition was heard by the Family Court on October 28 and November 19, 2013. At the start of the hearing, the Juvenile Officer amended the pleadings to exclude any allegations related to the burn on S.F.M.D.'s leg. As so amended, in Count I, the Juvenile Officer alleged:

1. The minor child is without proper care, custody and support necessary for his well-being and is subject to this Court's jurisdiction pursuant to Section 211.031.1 RSMo. in that his mother neglects him.

2. The child suffered several rib fractures while in his mother's care, as diagnosed by Children's Mercy Hospital staff on September 18, 2013. Mother is unable to provide an explanation of when and how the rib fractures occurred.

3. Mother's actions place the child at risk of further neglect absent this Court's intervention.

Count II averred:

1. The minor child is without proper care, custody and support necessary for his wellbeing and is subject to this Court's jurisdiction pursuant to Section 211.031.1 RSMo. in that his father abuses and neglects him.

2. On or about August 28, father hit mother in the head while wearing brass knuckles. On or about August 29, 2013, father hit and punched mother while she was holding the child. Additionally, the child suffered several rib fractures while in his father's care, as diagnosed by Children's Mercy Hospital staff on September 18, 2013.

3. Father has a history of violence and criminal action that impairs his parenting ability. In Case Number 16CR99001774–01, father [under another name] pleaded guilty to Felony Distribution of a Controlled Substance near Schools.

4. Father's actions place the child at risk of further harm and neglect absent this Court's intervention.

After hearing the evidence, the Family Court sustained the Juvenile Officer's allegations and placed the child in the custody of the Children's Division. Mother and Father appealed. On October 14, 2014, this court reversed the trial court's judgment and remanded for further proceedings finding that "[b]ecause the Family Court failed to satisfy its statutory obligation under § 211.181 to enter specific factual findings supportive of its finding that S.F.M.D. was in need of care and treatment, this Court cannot know what specific facts were found to exist and cannot meaningfully review the Family Court's judgment." In re S.F.M.D., 447 S.W.3d 758, 765 (Mo.App.2014). We remanded the matter "for entry of a judgment complying with the fact finding requirement of § 211.181," and noted that the court, prior to entering such judgment, was free to reopen the case and to consider additional evidence, including evidence related to events that had occurred since the entry of the order of disposition. Id.

On November 4, 2014, the Juvenile Officer moved to reopen evidence and a hearing was scheduled. The parties disagreed, however, as to what evidence should be allowed at that hearing. The Family Court overruled the Father's objection that evidence regarding a May 2014 domestic violence incident be allowed into evidence because it had not specifically been pled in the Juvenile Officer's petition. Father conceded, however, that evidence would be allowable if "you can do it in a way that supports your pending allegations." The court noted that it had already heard the evidence and had briefly mentioned it in a prior dispositional order, but that the evidence was heard at a time when the rules of evidence did not apply. The court expressed that it did not believe there was "a notice problem" as the evidence had previously been raised before the court and the parents were well aware that it was going to be discussed.

Evidence was then introduced that in May of 2014, Father choked Mother with his legs and threatened her by saying, "Bitch, I'm going to give you a dirt nap." Mother hit Father in the face with a hammer knocking out some of his teeth. This occurred during a time that the parents were having unsupervised visitation with S.F.M.D. Father testified that, at the time of the incident, S.F.M.D. was across the street with another son of Father and a "baby mama" of Father.

On December 31, 2014, the Family Court entered Findings of Fact and Conclusions of Law sustaining the Juvenile Officer's allegations as amended in open court. On January 23, 2015, a dispositional hearing was held. Thereafter, the court made Findings and Recommendations, including that the child continue in the custody of the Children's Division. Father and Mother appeal.

Standard of Review

We review juvenile adjudication proceedings under the standard applied in other court-tried civil cases and will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. In re A.G.R., 359 S.W.3d 103, 108 (Mo.App.2011). We consider the evidence in the light most favorable to the circuit court's ruling and ignore any evidence to the contrary. In re A.M.S., 272 S.W.3d 305, 307 (Mo.App.2008) ; In re B.J.K., 197 S.W.3d 237, 247 (Mo.App.2006). Pursuant to Rule 116.02, at all juvenile hearings involving adjudication of a...