In the Interest of: S.F.M.D. Juvenile Officer v. F.D. (Father) R.R. (Mother) , 2014 Mo. App. LEXIS 1162 ( 2014 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
IN THE INTEREST OF: S.F.M.D., )
)
Respondent, )
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JUVENILE OFFICER, ) WD77071 (Consolidated with WD77104)
)
Respondent, ) Opinion filed: October 14, 2014
)
v. )
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F.D. (Father), )
)
Appellant, )
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R.R. (Mother), )
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
The Honorable Justine E. Del Muro, Judge
Before Division Three: Gary D. Witt, Presiding, Judge,
Joseph M. Ellis, Judge and Thomas H. Newton, Judge
Father and Mother appeal from a judgment entered by the Circuit Court of
Jackson County assuming jurisdiction over their minor child, S.F.M.D., concluding that
S.F.M.D. was in need of care and treatment, and taking custody of S.F.M.D. For the
following reasons, the judgment is reversed, and the cause is remanded for further
proceedings consistent with this opinion.
When S.F.M.D. was almost three months old, on August 29, 2013, in response to
a domestic disturbance call, police officers arrived at the Kansas City, Missouri
apartment where Father, Mother, and S.F.M.D. resided. 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 did not reveal any abnormalities. Mother
told the social worker that S.F.M.D. had gotten burned on August 25 when the family
dog bumped into her ironing board and her iron had fallen and contacted 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
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investigate the circumstances surrounding the S.F.M.D.'s burnt leg and allegations of
domestic violence between Mother and Father.
After being released on bail, on September 2, 2013, Mother met with a
caseworker at Truman Medical Center. 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 she had allowed the baby to get burned, had
beaten her in the head with brass knuckles. She claimed that the following day Father
had hit and punched her while she was holding S.F.M.D. in her arms and that he 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 a 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 a hearing. That same day, the Juvenile
Officer filed his First Amended Petition. In the first count, he alleged that Mother had
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neglected the child based upon S.F.M.D. having sustained a leg burn and some 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.1 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.
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The opinion of the healthcare providers treating S.F.M.D. appears to have been that the parents
provided proper care for the burn under the circumstances and that treatment by a doctor had not been
required for that injury.
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3. Father has a history of violence and criminal action that impairs his
parenting ability. In Case Number 16CR99001774-01, father [under a
different name] pleaded guilty to Felony Distribution of a Controlled
Substance near Schools.2
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 entered its Order Upon Adjudication
Hearing finding:
The allegations are denied by the mother and father.
Evidence adduced sustains the allegations as to counts 1 and 2, as
amended in open Court.
Testimony having been heard and other evidence received by the Court,
the Court finds the evidence adduced sustains the allegations. Therefore
the Petition is sustained. The Court having found it had jurisdiction over
said juvenile and the Court having received evidence concerning the need
of said juvenile for care and treatment, and it being found that said juvenile
is in need of care and treatment.
The Court finds the mother's testimony generally incredible.
The Court finds an extremely high likelihood of the rib fractures occurring
while the child was in the parents' custody.
Subsequently, the court issued its "Findings and Recommendations" which ordered that
S.F.M.D. be committed to the custody of the Children's Division for placement in
licensed placement. In addition, the court ordered individual counseling for Mother and
Father on domestic violence issues, supervised visits and unsupervised visits as
allowed by the Children's Division, provision of a parent aid to assist the family with
parenting skills, psychiatric evaluation of Mother and Father, and random urinalysis for
2
Father pleaded guilty to that charge in 1999.
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Mother and Father. Father brings eight points on appeal from the Family Court's
judgment, Mother brings six.3
On appeal, Mother and Father contend that the Family Court erred in finding that
clear and convincing evidence established that S.F.M.D. was in need of care and
subject to the court's jurisdiction based upon Mother and Father's neglect. Section
211.031.1 confers exclusive original jurisdiction to family and juvenile courts in
proceedings involving any child who is alleged to be in need of care because his or her
parent or parents neglect or refuse to provide support or other care necessary for the
child's wellbeing. "To assert jurisdiction under section 211.031.1(1), the juvenile court
must find clear and convincing evidence that the child is in need of care because the
parent has neglected to provide the care necessary for the child's well-being." In re
A.R., 330 S.W.3d 858, 862 (Mo. App. W.D. 2011) (internal quotation omitted).
"Evidence is clear, cogent and convincing when it instantly tilts the scales in the
affirmative when weighed against the evidence in opposition and the fact finder's mind
is left with an abiding conviction that the evidence is true." In re N.J.B., 327 S.W.3d
533, 537 (Mo. App. S.D. 2010) (internal quotation omitted). "When a court finds that a
child falls within the parameters of § 211.031.1(1), 'the court shall so decree and make a
finding of fact upon which it exercises jurisdiction over the child.'" In re T.B.L.T., 367
S.W.3d 663, 665 (Mo. App. E.D. 2012) (quoting § 211.181.1) (emphasis omitted). "'The
determination to remove the child from the parent must be preceded by a finding that
removal of the child was necessary to protect the child and a detail of the evidence on
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"[A] finding of jurisdiction and judgment of disposition pursuant to the provisions of sections 211.031 and
211.183 is appealable." In re G.G.B., 394 S.W.3d 457, 463 (Mo. App. E.D. 2013).
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which that ultimate finding rest[s].'" In re G.F.M., 169 S.W.3d 109, 112 (Mo. App. W.D.
2005) (quoting In re A.L.W., 773 S.W.2d 129, 133, 135 (Mo. App. W.D. 1989)).
In this case, the only specific factual finding made by the Family Court was that
there was "an extremely high likelihood" S.F.M.D. suffered broken ribs at some point
while in the care of Father and Mother. Such a finding is not sufficient, in and of itself,
to establish that Father and/or Mother abused or neglected the child. Children
frequently suffer injuries that are not the result of abuse or neglect. There were no
findings in the judgment, or allegations in the Juvenile Officer's petition, that either
parent caused the rib injury; was aware of the injury; could have done anything to
prevent the injury; should have sought medical treatment for the injury; or needed to,
but failed to, take steps to avoid a similar injury in the future. Indeed, aside from
pleading that S.F.M.D. suffered broken ribs while in the care of Father and Mother, the
Juvenile Officer merely averred that Mother was "unable to provide an explanation of
when and how the rib fractures occurred." Without more, a parent's lack of knowledge
of when and how an injury occurred is not sufficient to establish that they abused or
neglected their child. In short, the Family Court's finding related to S.F.M.D.'s injured
ribs does not, by itself, support a finding of abuse or neglect on the part of either Father
or Mother.
In its judgment the trial court did find that the allegations in the petition had been
proven; however, even if we were to view the averments found to have been proven as
factual findings adopted by the trial court, those averments are almost entirely
conclusory and assert very few specific facts. In addition to the previously discussed
allegations related to S.F.M.D. sustaining a rib injury, the petition alleged that, on
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August 28, Father hit Mother with brass knuckles and, the following day, Father
punched Mother while she was holding S.F.M.D. The petition further generally asserted
that Father had a history of violence and criminal action that impairs his parenting ability
and specifically referenced a 1999 conviction for the sale of marijuana within 2,000 feet
of a school.
For the instance with the brass knuckles or Father's "history of violence and
criminal action" to constitute neglect or abuse, more specific findings would be required,
as the averments found to be proven establish no connection between those acts and
the welfare of S.F.M.D. The fact that Father struck Mother with brass knuckles the day
before the child was placed in protective custody, while a heinous crime, does not
establish that this harmed or posed any potential harm to S.F.M.D. There was no
allegation or finding that S.F.M.D. was present when that attack occurred or was
otherwise effected by the incident. Similarly, a generic finding that Father has a history
of violence and criminal activity at some point in his past is insufficient to establish that
neglect or abuse on the part of Father, absent findings establishing the specific types of
violent acts or crimes were committed by Father, when and against whom such acts
were committed, that similar behaviors were likely to occur in the future, and that such
acts and/or Father's diminished parenting ability resulting therefrom posed a risk of
harm to S.F.M.D. The only specific criminal activity referenced in the petition, aside
from the two instances of domestic violence against Mother, was Father's 1999
conviction for selling marijuana within 2,000 feet of a school. A finding as to one
instance of selling marijuana 15 years ago does not support a finding of abuse or
neglect on the part of Father.
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The fact that Father punched Mother while she was holding S.F.M.D. might well
be sufficient to support a finding of neglect or abuse on the part of Father but, from the
judgment rendered, we cannot know if the trial court did or would have found abuse or
neglect based on that fact alone. Furthermore, none of the Family Court's findings as to
Count II establish neglect on the part of Mother. The fact that Mother was a victim of
domestic violence on two occasions in the two days immediately before the child was
placed in protective custody does not establish that she was neglectful in her parenting
of S.F.M.D. Likewise, the fact that the father of her child has a history of violent and/or
criminal acts at some point in his past does not establish that Mother was neglectful.
Certainly, evidence was presented that might support additional findings that
could support an ultimate finding of neglect on the part of Mother, especially if she is
found to be insistent on continuing to live with and expose S.F.M.D. to an abusive or
violence prone Father. The evidence could also support additional findings bolstering
the ultimate finding of abuse and neglect on the part of Father beyond the singular
instance of striking Mother while she held the child. Because 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. See In re T.B.L.T., 367 S.W.3d 663, 665 (Mo. App. E.D.
2012) ("Here, the family court's judgment provided lip-service to the statutes, but merely
offered the conclusory statement that Mother 'failed [to] provide the proper care, custody
and support as alleged in the petition.' Given the evidence adduced at the hearing
regarding Mother's alleged involvement with methamphetamine and the child's
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exposure to such an environment, it is inexcusable that the family court did not make
any findings of fact to support the exercise of jurisdiction."); In re E.K., 154 S.W.3d 453,
455 (Mo. App. S.D. 2005) (holding that the conclusory nature of the juvenile court's
findings and a lack of specific factual findings precluded any meaningful appellate
review of the court's decision).
"The failure to make the mandatory statutory findings requires this court to
remand the case so that the juvenile court may enter a judgment complying with the
dictates of the law." In re E.K., 154 S.W.3d at 455. Accordingly, the trial court's
decision is reversed, and the cause is remanded for entry of a judgment complying with
the fact finding requirement of § 211.181. Prior to entering such judgment, the Family
Court is free, in its discretion, to reopen the case and to consider additional evidence,
including evidence related to events that have occurred since the entry of the order of
disposition. Id.; Interest of K.L.B., 898 S.W.2d 696, 702 (Mo. App. S.D. 1995).
Because they could affect matters on remand, we will address a couple of
evidentiary issues raised by Appellants on appeal. In his first point, Father contends
that the Family Court erred in admitting into evidence testimony from pediatric nurse
practitioner Amy Terreros regarding the existence of the rib fractures, the potential age
of those fractures, and the possible causes of such fractures. Father argues that
Terreros was not sufficiently qualified to provide such expert testimony, that her
opinions were not based on sufficient evidence or reliable data, and were offered in
terms of possibility. Mother makes similar claims in her second point.
Section 490.065 governs the admissibility of expert testimony in civil cases.
Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d 752, 761 (Mo. banc 2010). It "sets out
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the legal basis for admitting expert testimony" and provides that "[i]f the trial court finds
that the expert is qualified 'by knowledge, skill, experience, training, or education,' that
the expert's testimony will assist the trier of fact, and that the facts or data the expert
uses are reasonably relied upon by experts in the field and otherwise reasonably
reliable, the trial court must admit his or her testimony, and if not, it must be excluded."
Kivland v. Columbia Orthopaedic Group, LLP, 331 S.W.3d 299, 311 (Mo. banc
2011). "In deciding whether to admit an expert's testimony, the circuit court is required
to ensure that all of the statutory factors are met; however, the court is not required to
consider the degree to which they are met." Id. "So long as the expert is qualified, any
weakness in the expert's knowledge is for the [finder of fact] to consider in determining
the weight to give the expert." Id. "Appellate courts generally say they review a circuit
court's evidentiary rulings for abuse of discretion." Id.The record reflects that Terreros has bachelor's and master's degrees in nursing
and a doctorate degree in nursing practice. She has seven years experience in the
division of child abuse and neglect at Children's Mercy Hospital in Kansas City, Missouri
where her duties have included the evaluation, assessment, diagnosis, and treatment of
child abuse and neglect injuries. She testified that she has seven years experience
reading radiology reports and that she has completed numerous continuing professional
education courses. The Family Court certainly did not abuse its discretion in finding that
Terreros qualifies as a medical expert based upon her knowledge, education, training,
and experience.
Appellants specifically complain that Terreros was not qualified to diagnose rib
fractures in an infant from x-rays and that such a diagnosis could only be made by a
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medical doctor or radiologist. While Terreros did testify that she was capable of
diagnosing such fractures from x-ray images and could see the healing fractures on
S.F.M.D.'s x-ray films, her testimony reflected that she had relied upon the diagnosis
made by Dr. Christopher Keup in his skeletal survey report as to the existence the
healing rib fractures. Dr. Keup's report was admitted into evidence and is not
challenged by Appellants on appeal. Moreover, no testimony or evidence was admitted
at trial that could be viewed as challenging Dr. Keup's diagnosis regarding the existence
of healing rib fractures on September 18. Thus, even assuming, arguendo, that
Terreros should not have been allowed to testify as to her own interpretation of the x-ray
films, the testimony was cumulative to the skeletal survey report, and its admission
would have to be viewed as harmless.
Appellants' real complaints relate to Terreros's testimony regarding how long it
takes for rib fractures to show up in x-rays and the possible causes of S.F.M.D.'s rib
fractures. While Appellants contend that Terreros improperly opined on the age of the
rib fractures, her testimony in this area was actually limited to stating that, based upon
her education and review of scientific literature on the subject, it takes seven to ten days
before callous formation, like that appearing in S.F.M.D.'s September 18 x-ray and upon
which Dr. Keup's diagnosis of healing rib fractures was based, becomes visible in x-ray
films. She stated that S.F.M.D.'s rib fractures, therefore, occurred at least seven to ten
days prior to September 18 and could have occurred prior to August 30, despite not
appearing in the x-rays taken that day.4 The trial court properly determined that
4
This is not the same thing as opining as to the age of the fractures based upon an interpretation of the
x-ray films as Appellants attempt to characterize the testimony.
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Terreros was qualified to offer such testimony based upon her education, experience,
and review of scientific literature.
As to the possible causes of S.F.M.D.'s rib fractures, Terreros testified regarding
the multiple known potential causes for rib fractures in an infant and which of those
potential causes she had ruled out based upon S.F.M.D.'s medical history, the tests that
had been performed, and her examination of him. Such matters appear well within the
purview of a nurse practitioner specializing in the treatment of potentially abused
children. The trial court did not err in allowing such testimony based upon Terrerros's
knowledge, skill, experience, training, and education. Point denied.
In his fourth point, Father contends that the Family Court abused its discretion in
admitting into evidence Mother's Petition for Order of Protection against Father. He
argues that the petition was hearsay and that no evidence was offered to establish that
an exception to the hearsay rule applied. Mother makes similar arguments in her first
point, claiming that the evidence was improperly admitted as substantive evidence
against her.
"We review a decision to admit or exclude evidence for an abuse of discretion."
Meyer v. Purcell, 405 S.W.3d 572, 581 (Mo. App. E.D. 2013). "An abuse of discretion
occurs when the court's decision is clearly against the logic of the circumstances and is
so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of
careful consideration." Id.The first thing that the Juvenile Officer did at trial was to offer into evidence
Mother's Petition for Order of Protection. Both Father and Mother objected on hearsay
grounds. The Family Court commissioner then stated, "Well, it's a certified legal
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document. I don't think that – obviously it's relevant and it's not hearsay, because
they're both parties. . . . [S]he can testify and say it isn't her statement, but I still have to
receive a certified document. So it's received."
Section 490.130 provides that "[c]opies form the record of proceedings of any
court of this state, attested by the clerk thereof . . . shall be received as evidence of the
acts or proceedings of such court in any court of this state." Thus, while the petition
might well have been properly admitted on this basis, the statute only provides for its
admission as evidence of the fact that the petition was filed and not as evidence of the
truth of the matters asserted within that petition. Accordingly, even if the document was
properly admitted under the statute for this limited purpose, the parties' hearsay
objections could not be disregarded on that basis as they were challenging its
admission as proof of the matters asserted in the petition.
We, therefore, consider whether an exception to the hearsay rule is applicable.
The sole exception noted by the commissioner and advanced by the Juvenile Officer
applies to admissions that have been made by a party. "A statement can be admitted
as an admission of a party opponent if it is material to the issues of the case, is relevant
to the case, and is offered by the opposing party." State v. Eisele, 414 S.W.3d 507,
514 (Mo. App. E.D. 2013). Mother's petition certainly meets those criteria. However,
"[w]hile admissions of a party opponent are exceptions to the hearsay rule, it is well
established under Missouri law that admissions of a co-defendant are not admissible
against another co-defendant merely because of one's being a co-party to litigation."
Viacom Outdoor, Inc. v. Taouil, 254 S.W.3d 234, 237 (Mo. App. E.D. 2008) (internal
quotation omitted). Accordingly, the petition was properly admitted as substantive
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evidence against Mother, who, by signing the petition, is deemed to have admitted the
averments contained therein; but, as to Father, the petition cannot be considered as
substantive evidence of the truth of the matters asserted therein. That said, the
averments in the petition could most certainly be utilized to impeach testimony by
Mother, to the extent her testimony is contrary thereto, and used against Father in that
manner.
For the foregoing reasons, the judgment is reversed, and the cause is remanded
for further proceedings consistent with this opinion.
________________________________
Joseph M. Ellis, Judge
All concur.
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