In the Interest of L.A.B. ( 2015 )

In the Missouri Court of Appeals
Eastern District
SOUTHERN DIVISION
) No. ED102737
)
In the Interest of L.A.B. ) Appeal from the Circuit Court
) of St. Francois County
)
)
) Hon. Sandy Martinez
)
)
) FILED: December 29, 2015
OPINION
The Department of Social Services, Children’s Division, appeals the order of the
juvenile division of the circuit court of St. Francois County instructing Children’s
Division to designate a person to make end-of-life medical decisions for a child in the
Division’s custody. We reverse.
Background
Baby was born August 2014 and taken into protective custody due to Mother’s
heroin addiction. Paternity was not established, and Mother’s parents declined custody.
Children’s Division placed Baby in foster care, where she thrived until November 2014
when the Division placed her with Mother’s cousin and her husband. Twenty-seven days
later, Baby was admitted to Children’s Hospital with severe neurological injury and signs
of non-accidental trauma. Doctors later determined that she was brain-dead and
requested a do-not-resuscitate (DNR) order. All parties - Mother, Children’s Division,
the juvenile officer, and the guardian ad litem - agreed that Mother should make medical
decisions for Baby, including signing a DNR order and terminating life support. At a
hearing December 2nd, the parties presented their stipulation to the Juvenile Court for
approval. The court declined to grant authority directly to Mother and instead ordered
Children’s Division to designate the appropriate person, whether Mother or someone
else. Following the hearing and with the Division’s permission, Mother went to the
hospital and signed the requisite forms to discontinue life-sustaining support. Baby died
shortly thereafter.
Children’s Division now appeals the Juvenile Court’s order, asserting that
Children’s Division lacks authority to make extraordinary medical decisions on behalf of
a child in its custody, as such authority rests with the Juvenile Court.
Appellate Review
As a threshold matter, Mother moved to dismiss this appeal as moot in light of
Baby’s death. But courts make an exception to mootness when the issue has general
public interest and importance, is likely to recur, and will otherwise evade appellate
review. In re J.L.R., 257 S.W.3d 163, 166 (Mo. App. W.D. 2008). To establish that such
is the case here, Children’s Division submitted to this court: (1) a nearly identical order
issued by this Juvenile Court in 2013 directing the Division to designate a party to make
medical decisions for another child in the Division’s custody, (2) an order issued by
another Missouri circuit court in 2007 authorizing a mother to make extraordinary
decisions on behalf of her child in the Division’s custody, and (3) three orders issued by
other Missouri circuit courts between 2010 and 2015 in which the court authorized the
2
termination of life support for children in the Division’s custody. These orders persuade
us that this issue is of public importance and likely to recur. We therefore deny Mother’s
motion to dismiss and exercise our discretion to review the merits.
Our standard of review for decisions in juvenile proceedings is the same as for
any court-tried civil case. In re T.B.L.T., 367 S.W.3d 663, 664 (Mo. App. E.D. 2012).
We will affirm the trial court's judgment unless there is no substantial evidence to support
it, the decision is against the weight of the evidence, or it erroneously declares or applies
the law. Id. at 665, citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The
Division contends that the juvenile court erred as a matter of law, so our review is de
novo. Missouri Dept. of Social Services, Children’s Div. v. B.T.W., 422 S.W.3d 381, 387
(Mo. App. W.D. 2013).
Discussion
Children’s Division asserts that the Juvenile Court erred by requiring the Division
to make extraordinary medical decisions for Baby because that authority rests with the
Juvenile Court.
In support of its position, Children’s Division cites the statutory framework
establishing its limited authority. Most notably, Children’s Division has the power “to
accept for social services and care homeless, dependent, or neglected children in all
counties where legal custody is vested in the children’s division by the juvenile court
where the juvenile court has acquired jurisdiction.”1 §207.020.1(17). “Legal custody”
1
References to the juvenile court’s “jurisdiction” should be interpreted to articulate its
“authority,” merely setting statutory limits on remedies or relief that the court may grant. K.H. v.
State, 403 S.W.3d 720, 723 (Mo. App. W.D. 2013) citing J.C.W. ex rel. Webb v. Wyciskalla, 275
S.W.3d 249, 253 (Mo. 2009).
3
means the right to the care, custody and control of a child and the duty to provide food,
clothing, shelter, ordinary medical care, education, treatment, and discipline of a child.
§211.021.1(4); Rule 110.04(16). (emphasis added) Given this definition and invoking
the maxim expressio unius est exclusio alterius (the expression or inclusion of one thing
implies the exclusion of the other), Children’s Division contends that its authority to
make medical decisions for a child in its custody is limited to ordinary decisions and
excludes extraordinary decisions such as that affecting Baby here.
The Juvenile Officer responds that Juvenile Court did not err in requiring the
Division to make decisions for Baby because, as legal custodian, the Division routinely
manages the medical circumstances of children in its care and thus is better suited for the
responsibility.
Both parties stray from the relevant issue in debating whether Children’s Division
has the statutory authority to make extraordinary medical decisions. We need not opine
on the precise scope of Children’s Division’s authority or where the line is drawn
between ordinary and extraordinary care. Rather, the narrow question before us on the
present facts is whether the Juvenile Court abdicated its responsibility by directing
Children’s Division to designate a decision-maker?2 We hold that it did.
The juvenile code “is rooted in the concept of parens patriae, that the state will
supplant the natural parents when they fail in that role … . This parens patriae
relationship exists between the child and the juvenile court.” J. D. H. v. Juvenile Court of
St. Louis Cnty., 508 S.W.2d 497, 500 (Mo. 1974) (emphasis added); In Interest of R L C,
Jr., 967 S.W.2d 674, 677 (Mo. App. S.D. 1998).
2
Children’s Division operates under the aegis of the Department of Social Services and thus acts
on behalf of the executive branch of government.
4
For example, the aforementioned statute empowering Children’s Division to
accept children into care when the juvenile court confers legal custody (§207.020.17)
further contemplates that, if a child in custody needs care or treatment that the Division
cannot provide, then the Division can ask the court to relieve it of custody. The court
must act swiftly and “shall be vested with full power to make such disposition of the
child as is authorized by law.” §207.020.1(17)(a).3 As another example, §210.166,
governing actions for medical neglect, permits Children’s Division to file a petition and
empowers the circuit court to ensure that medical services are provided to the child when
the child’s health requires it.”4 In short, while the Division’s authority is limited, the
court’s authority is broad.
The primacy of the court’s parens patriae responsibility is evident throughout
Missouri statutes and case law. The General Assembly has declared that, as a matter of
public policy, the paramount concern is the best interest of the child. See e.g., §211.011
(state’s child welfare policy is best interests of the child); §211.443 (statutes regarding
3
The full text of §207.020.1(17)(a) states: The children's division may, at any time, if it finds the
child placed in its custody is in need of care or treatment other than that which it can provide,
apply to the court which placed such child for an order relieving it of custody of such child. The
court must make a determination within ten days and the court shall be vested with full power to
make such disposition of the child as is authorized by law, including continued custody.
4
Section 210.166 authorizes Children’s Division, juvenile officers, physicians, hospitals, and
other health care providers to bring an action alleging medical neglect by a child’s parents or
guardians and to obtain a court order authorizing the requisite care. The statute states in pertinent
part: “A petition filed under this section shall be expedited by the court involved in every manner
practicable, including, but not limited to, giving such petition priority over all other matters on the
court's docket and holding a hearing, at which the parent, guardian or other person having
authority to consent to the medical care in question shall, after being notified thereof, be given the
opportunity to be heard, and issuing a ruling as expeditiously as necessary when the child's
condition is subject to immediate deterioration. Any circuit or associate circuit judge of this state
shall have the authority to ensure that medical services are provided to the child when the child's
health requires it.”
5
termination of parental rights to be construed to promote best interests of the child).
Missouri law leaves no doubt that the court is the ultimate authority on that question. See
e.g., §452.375.2 (court shall determine custody in best interests of the child); In re
Marriage of Hendrix, 183 S.W.3d 582, 591 (Mo. 2006) (court, not parties, determines
what custody arrangement is in the best interests of the children.); In re Q.A.H., 426
S.W.3d 7, 12 (Mo. 2014) (courts must determine whether termination of parental rights is
in the best interests of the child).
By analogy, in the probate context, a guardian appointed by the probate court has
statutory authority to make end-of-life decisions on behalf of the ward. Matter of
Warren, 858 S.W.2d 263 (Mo. App. W.D. 1993). The probate court must determine the
proper guardian for incapacitated persons notwithstanding the recommendation of the
Department of Mental Health.5 See e.g., Prost v. Schuffman, 202 S.W.3d 41 (Mo. App.
E.D.) (probate court obligated to consider suitability of family member as potential
guardian for disabled adult notwithstanding DMH request for appointment of public
administrator). Missouri law also recognizes the probate court’s authority to appoint a
guardian for children who are under the “parallel” jurisdiction of the juvenile court
pending termination of parental rights and adoption. In re J.M.J., 404 S.W.3d 423 (Mo.
W.D. 2013).
5
Like the Department of Social Services, the Department of Mental Health is also part of the
executive branch.
6
Simply put, the judiciary is vested with the responsibility to authorize end-of-life
medical decisions on behalf of and in the best interests of children under its jurisdiction.6
The court may not abdicate or delegate that duty.
Conclusion
The Juvenile Court erred in ordering Children’s Division to appoint a person to
direct Baby’s end-of-life care. The trial court’s judgment is reversed.
______________________________________
Lisa Van Amburg, Chief Judge
Gary M. Gaertner, Jr., J., and
Philip M. Hess, J., concur.
6
Of course, absent termination of parental rights, subrogation of parental authority in these
circumstances is subject to the requirements of due process, particularly notice and an opportunity
to be heard. Due process was satisfied here in that Mother participated in the proceedings, and
there was no evidence in the record suggesting that Mother was incapable of making the decision.
7