In the Interest of: B.O. v. Juvenile Office ( 2020 )

In the
Missouri Court of Appeals
Western District

IN THE INTEREST OF: B.O., 
 WD82883
Appellant,  OPINION FILED:
v. 
 FEBRUARY 25, 2020
JUVENILE OFFICE, 

Respondent. 


Appeal from the Circuit Court of Daviess County, Missouri
The Honorable R. Brent Elliott, Judge
Before Division One: Thomas H. Newton, Presiding Judge, Mark D. Pfeiffer, Judge,
Anthony Rex Gabbert, Judge
B.O. appeals the circuit court’s judgment finding that B.O., pursuant to Section 559.036,1
violated his court-ordered probation agreement by failing to maintain satisfactory academic
performance and school attendance, and violated Section 569.120, by, in concert with others,
committing three counts of the class B misdemeanor of Property Damage in the Second Degree,
if he were an adult. B.O. contends the circuit court 1) erred in committing B.O. to Division of
Youth Services (DYS) without a dispositional hearing, 2) erred in finding B.O. committed property
1
Unless otherwise noted, all statutory references are to the Revised Statutes of Missouri as updated through
2017.
damage in the second degree relating to a vehicle owned by Roni Betchel, and 3) erred in finding
B.O. committed property damage in the second degree relating to a vehicle owned by Tina
Ableidinger. We affirm in part and reverse in part.
Background and Procedural Information
On May 18, 2018, the Juvenile Division of the Daviess County Circuit Court found B.O.
to be within the jurisdiction of the court after B.O. admitted to being beyond parental control
pursuant to Section 211.031.1(2)(b) and violating compulsory school attendance laws pursuant to
Section 211.031.1(2)(a). The court ordered B.O. be made a ward of the court and placed on
probation for an indeterminate period of time under Juvenile Office supervision. B.O. remained
in the custody of his legal guardian and was to complete twenty hours of community service and
participate in counseling.
On March 4, 2019, the Juvenile Office moved to modify the court’s previous order of
disposition and requested B.O. be committed to the legal and physical custody of DYS for an
indeterminate period of time. The allegations in the motion were that, 1) in violation of Section
559.036, B.O. committed a misdemeanor, if he were an adult, by violating condition #2 of his
court-ordered probation agreement by failing to maintain satisfactory academic progress and
school attendance by missing seventeen days of school without justification, 2) in violation of
Section 569.120, B.O., in concert with others, committed the Class B Misdemeanor of Property
Damage in the Second Degree, if he were an adult, by knowingly damaging the property of another
by using a crowbar to break the front and rear driver side windows of a pickup owned by Roni
Betchel, 3) in violation of Section 569.120, in concert with others, committed the Class B
Misdemeanor of Property Damage in the Second Degree, if he were an adult, by using a crowbar
to break the windshield and passenger headlight of a vehicle owned by Jim Harrington, and 4) in
2
violation of Section 569.120, in concert with others, committed the Class B Misdemeanor of
Property Damage in the Second Degree, if he were an adult, by using a crowbar to break the front
driver side and middle driver side window of a van owned by Tina Ableidinger.
On June 3, 2019, an adjudication hearing was held on the Juvenile Office’s Motion to
Modify.2 After the adjudication hearing, but prior to the court entering Judgment, B.O.’s counsel
advised the court that, if the court sustained the allegations, Counsel desired to make a dispositional
argument against the Juvenile Office’s recommendation of DYS custody. The court replied,
“Okay. Anything further.” The court then found all allegations in the Motion proven and, without
further argument or evidence taken regarding disposition, placed B.O. in the legal and physical
custody of DYS for an indeterminate period of time. This colloquy followed:
[B.O.’s COUNSEL]: Judge, I would just like to make a few comments about the
disposition. I know you just ruled on that, but I would like
to at least make an argument about that before he is actually
committed. I think that this is a case, with restitution, he
should be given the opportunity –
THE COURT: I just committed him. What do you mean?
[B.O.’s COUNSEL]: I understand. I was wanting to make an argument for the
disposition portion of this in the event that you found he had
violated. So I was making – my first argument was just
about the evidence. Now I was going to make an argument
on the disposition.
THE COURT: Okay. Well, your argument is noted, but it won’t change my
decision any.
2
At the trial setting where all parties, including B.O., were present, the court inquired as to whether the issue
was a truancy matter. The Juvenile Office advised that the original petition related to truancy, and at the time of the
filing of the Motion to Modify, B.O. had missed seventeen days of school. Further, that B.O. was allegedly attending
online classes, but the Juvenile Office had received no confirmation. The Juvenile Office advised that, additionally,
the Motion to Modify involved delinquency violations of probation conditions involving property damages. The court
stated: “Well, here’s the bottom line: I’m going to set this for hearing. We’re going to hear this case, and you’re
probably not going to like the result. If you want a hearing, you’re going to get a hearing.
3
The court’s “Order and Judgment of Disposition Committing Juvenile to Custody of Division of
Youth Services” stated that the court had “received further evidence concerning the need of care
and treatment which cannot be furnished by placing the juvenile in his own home, but which
requires the care, custody and discipline of a facility of the Division of Youth Services because
suitable community based treatment services would not be appropriate in this matter.” The
Judgment ordered B.O. detained until accepted by DYS, that DYS was to accept B.O. into a facility
within ten business days of the order, and that the court’s jurisdiction over B.O. would terminate
upon B.O.’s receipt by DYS. This appeal follows.
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 evidence to the contrary. Id. We review questions of law de
novo. Cosby v. Treasurer of State, 579 S.W.3d 202, 206 (Mo. banc 2019).
Point I – Dispositional Hearing
In his first point on appeal, B.O. contends the circuit court erred in committing B.O. to
DYS without a dispositional hearing, arguing this denied B.O. due process, denied B.O. a
fundamentally fair dispositional hearing, and violated Rule 128.03.3 B.O. argues that Rule 128.03
requires dispositional hearings to be on the record and grants juveniles the right to testify, present
3
All rule references are to the Missouri Supreme Court Rules (2017) unless otherwise noted.
4
evidence, cross-examine witnesses, present arguments of law and fact, and present arguments
concerning the weight, credibility, and effect of the evidence.
The Juvenile Office argues that a dispositional hearing was not required prior to the court
ordering B.O. placed with DYS because B.O. had a prior dispositional hearing after he admitted
to being beyond parental control and failing to attend school. The Juvenile Office contends that,
at that time B.O. was made a ward of the court and, pursuant to Section 211.181, placed on
probation for an indeterminate amount of time under the terms and conditions fixed by the Juvenile
Office. Therefore, B.O. was only entitled to an adjudication hearing on the allegations in the
Motion to Modify and not entitled to a dispositional hearing after the Motion was adjudicated. The
Juvenile Office argues that Rule 119.03 simply states that a court may modify a judgment after a
hearing on the record, and B.O. was provided an adjudication hearing on the allegations in the
Motion to Modify.
The Juvenile Office further argues that Rule 128.03 provides that dispositional hearings
“may be held” separate from or immediately following an adjudication hearing under Rule 128.02,
arguing that the court may, therefore, choose to hold a dispositional hearing separate from, directly
following, “or combined with” a hearing on a motion to modify. (Emphasis added).4
First, we disagree with the Juvenile Office’s position that a dispositional hearing may, at
the court’s discretion, be melded with an adjudication hearing. Nowhere in the Missouri Supreme
Court Rules is a “combined” hearing provided for, nor would such be practical where Rule
128.02.b provides that the “rules of evidence shall apply” in adjudication hearings, and Rule
4
Although the Juvenile Office does not dispute that B.O. was denied a dispositional hearing, contending he
was not entitled to one, this argument suggests an alternative claim that a dispositional hearing was actually provided
B.O. during the adjudication hearing. There is no support in the record for this claim.
5
128.03.b states that the “rules of evidence do not apply” in dispositional hearings. We find Rule
128.02 dispositive of this issue. As applicable here it provides that, at an adjudication hearing in
a proceeding under subdivision (2) or (3) of subsection 1 of Section 211.031, upon finding that
any allegation in the petition or motion to modify is proved within the applicable standard of proof,
the court shall make findings on the allegations in the petition or motion to modify that are proved
and enter an order regarding whether the court has jurisdiction over the juvenile. Id. at 128.02 a,
e. (Emphases added). Further,
f. If the dispositional hearing does not immediately follow the adjudication
hearing, the court:
(1) Shall continue or, if appropriate, amend any detention order;
(2) May order a social study to be prepared pursuant to Rule 118,01; and
(3) Shall schedule the dispositional hearing.
Id. (Emphases added). Hence, Rule 128.02 clearly mandates a separate dispositional hearing that
must occur immediately following an adjudication hearing or at a later, scheduled, date. Rule
128.03 reiterates that the mandatory hearing may immediately follow or be held separate from the
adjudication hearing and provides for how the court is to conduct such a hearing. It states, in
relevant part:
a. A dispositional hearing in a proceeding under subdivision (2) or (3)
of subsection 1 of section 211.031, RSMo, may be held separate from or
immediately following an adjudication hearing held pursuant to Rule 128.02.
b. At such a dispositional hearing, the court shall receive evidence and,
in accordance with the best interests of the juvenile, determine and make findings
on the legal and physical custody of the juvenile and on the disposition to be
imposed on the juvenile. The hearing shall be held on the record. The court may
take judicial notice of the court’s file. The rules of evidence do not apply. All
parties shall be afforded the opportunity to testify, present evidence, cross-examine
6
witnesses, and present arguments of law and fact and arguments concerning the
weight, credibility and effect of the evidence.
Id.
Second, we disagree with the Juvenile Office’s position that Rule 119.03 provides that no
dispositional hearing is required if adjudication is pursuant to a motion to modify. Rule 119.03.b
states: “The court may modify a judgment or order under which it has jurisdiction over a juvenile
after a hearing on the record or by agreement of all parties.” (Emphasis added). The only grounds
for which the court already had jurisdiction of B.O. were for status offenses – B.O.’s admissions
of truancy and being beyond parental control. The “Comment” to Rule 119.03 states:
This Rule 119.03 is not intended to suggest that a court without a hearing
may modify a judgment or order so as to impose additional restraints upon the
juvenile or upon the juvenile’s parents, guardian or custodian, to deprive the
juvenile’s parents, guardian or custodian of custody of the juvenile, or to commit
the juvenile to the division of youth services.
Here, B.O. was, in part, alleged to have committed a misdemeanor in violation of Section
559.036, if he were an adult, by violating condition #2 of his court-ordered probation agreement
by failing to maintain satisfactory academic progress and school attendance. Section 559.036,
however, regards probation revocation for criminal defendants and is inapplicable to juveniles.
“Juvenile proceedings are civil, not criminal, and are focused on continuing care, protection, and
rehabilitation of the juvenile, not punishment.” In Interest of A.C.C., 561 S.W.3d 425, 428 (Mo.
App. 2018). B.O. was already under the jurisdiction of the court for lack of school attendance and
the court ordered a specific disposition regarding that initial finding. The modification request
with regard to B.O.’s lack of school attendance was, therefore, essentially a request to modify the
court’s previous disposition and present evidence as to why modification was justified – in this
case, for violation of the Juvenile Office’s terms of probation requiring school attendance. Because
7
the hearing on the modification request was essentially a dispositional hearing as it was a request
to change the previous disposition with regard to B.O.’s failure to attend school, B.O. should have
been given the opportunity under both Rule 119.03 and Rule 128.03 to present evidence and
argument as to why a disposition of DYS custody was inappropriate.5 Here, the court deprived
B.O.’s guardian of custody of B.O. and committed B.O. to DYS without B.O. being heard on this
disposition. We note that, if the Juvenile Office was attempting to adjudicate new allegations of
truancy in the Motion to Modify, as it may have been attempting as evidenced by the Motion
improperly charging B.O. with alleged misdemeanors for failure to attend school, a dispositional
hearing would still be required pursuant to Rule 128.02, as discussed below.
Third, regardless of whether the Juvenile Office’s motion was termed a “Motion to Modify
Previous Order of Disposition,” the hearing on the Juvenile Office’s allegations of property
damage was an adjudication hearing. Property damage allegations, if proven, allow a court to
assume jurisdiction of a juvenile under Section 211.031.1(3). As discussed above, Rule 128.02
sets forth guidelines for adjudication hearings in proceedings under Section 211.031.1(2) or (3).
It states, in relevant part: “At such an adjudication hearing, the court shall determine what
allegations in the petition or motion to modify are admitted by the juvenile and receive evidence
on the allegations that have not been admitted.” Rule 128.02.b. (Emphasis added). “All parties
5
We note that Section 211.181.2, which regards dispositional orders regarding status offenses, states that
execution of any order entered pursuant to this subsection, including a commitment to any state agency, may be
suspended and the child placed on probation subject to conditions as the court deems reasonable. “After a hearing,
probation may be revoked and the suspended order executed.” Id. Here, B.O. was not originally ordered into DYS
custody with a suspended execution of that order, nor could he have been. Under Section 211.181.2 (2)(a), a child
may not be committed to DYS unless he/she is “presently under the court’s supervision after an adjudication under
the provisions of” Section 211.031.1(2) or (3). B.O. was not presently under the court’s supervision in May of 2018
when B.O. was found to be within the jurisdiction of the court after admitting to being truant and beyond parental
control.
8
shall be afforded the opportunity to testify, present evidence, cross-examine witnesses, and present
arguments of law and fact and arguments concerning the weight, credibility and effect of the
evidence.” Id. Further, after adjudicating the petition or motion to modify, a dispositional hearing
shall be held. Rule 128.02 e, f. Hence, dispositional hearings are required where allegations are
proven in either a petition or motion to modify filed pursuant to Section 211.031.1(2) or (3).
C.L.B. v. Juvenile Officer, 22 S.W.3d 233 (Mo. App. 2000), discusses that motions to
modify were not historically used to adjudicate new allegations. C.L.B. involved Rule 117.05
(1995), now repealed, which provided that in all hearings upon a petition alleging as a basis for
jurisdiction that the juvenile committed an act or acts which would be a crime if committed by an
adult, such were to be proved beyond a reasonable doubt. Id. at 237 (Emphasis added). In “all
other hearings the facts alleged shall be by clear and convincing evidence.” Id. The Juvenile
Officer in C.L.B. contended that, because the juvenile was already under the court’s jurisdiction
and committed a new crime while on probation, the lesser standard of clear and convincing
evidence applied. Id. We disagreed stating:
It may be that, at the time that Rule 117.05 was adopted, motions to modify
were not used to adjudicate guilt or innocence of other crimes, and that such
adjudications were anticipated to occur only during the initial hearing which
provided a basis for the court to take jurisdiction over the juvenile in the first
instance. Whatever was the case at that time, however, counsel for C.L.B. alleges,
and counsel for the Juvenile Officer confirms, that now motions to modify are used
to do far more than merely modify the disposition made on the juvenile’s original
adjudication of guilt in the case which initially brought the juvenile within the
juvenile court’s jurisdiction.
Now, motions to modify are often also used to provide a forum for an
adjudication of the juvenile’s guilt of additional crimes occurring while the juvenile
was under the court’s jurisdiction. And, under his interpretation of Rule 117.05,
the Juvenile Officer took the position that because he had charged a juvenile under
the juvenile court’s jurisdiction of a crime by means of a pleading denominated as
a motion to modify, the standard of proof applicable to modifications of a juvenile’s
9
disposition would apply, even though the juvenile would in fact be charged with
and actually found guilty of a separate crime.
This is a misuse of the motion to modify procedure. If that procedure is
truly being used to modify a prior disposition based on a parole violation, then a
clear and convincing evidence standard is proper. However, under In re Winship,
the motion to modify procedure cannot properly be used to provide a forum for an
adjudication of guilt of an act which would be a crime if committed by an adult,
with all the collateral consequences of a conviction of that offense, unless a beyond
a reasonable doubt standard is applied to that aspect of the trial.
We find no reason, either in common sense or as required under our
constitutional precepts, for not providing a beyond a reasonable doubt evidence
standard in the case of an adjudication of guilt of a child just because the child is
already within the court's jurisdiction where the adjudication of guilt is a conviction
for the commission of a criminal act carrying similar burdens on account of that
conviction outside as well as inside the jurisdiction of the juvenile court.
Id. at 239.
The Juvenile Office contends that C.L.B. holds that a juvenile’s rights to a fair disposition
after adjudication of a motion to modify are fully protected by using a beyond reasonable doubt
standard when adjudicating the allegations. We disagree. The issues of disposition and/or
dispositional hearings were not addressed in C.L.B. and Rule 128.02 clearly mandates that
dispositional hearings shall occur after an adjudication on a motion to modify if the court
determines that proven allegations bring the juvenile within the court’s jurisdiction.
The Juvenile Office also contends that the court had ample evidence to determine an
appropriate disposition based on the evidence presented at trial regarding B.O.’s probation
violations and property damage, as well as the Social Investigation Summary filed by the Juvenile
Office prior to the court initially taking jurisdiction of B.O. on the 2018 status offenses. Yet, the
Social Investigation Summary from the prior adjudication recommended B.O. remain in the
custody of his grandmother subject to supervision through the Juvenile Office. The Juvenile Office
recommended a different disposition at B.O.’s trial on the Motion to Modify and the court accepted
10
the Juvenile Officer’s recommendation of DYS custody. B.O. should have been given an
opportunity to present his own evidence and argument and refute any evidence, argument, and
recommendations of the Juvenile Office.6 Rule 128.03.
The court erred in modifying the prior disposition and committing B.O. to DYS without
conducting a dispositional hearing in compliance with Rules 128.02 and 128.03.
B.O.’s first point on appeal is granted.
Points II and III – Sufficiency of the Evidence
In his second and third points on appeal, B.O. contends there was insufficient evidence to
support that B.O. committed property damage in the second degree relating to vehicles owned by
Roni Betchel and Tina Ableidinger.
“In determining whether sufficient evidence has been presented to sustain an adjudication
in a juvenile proceeding, the trial court’s decision must be given the same deference as it would
be given in an adult criminal proceeding.” In re D.M., 370 S.W.3d 917, 922 (Mo. App. 2012)
(superseded on other grounds). We view the evidence and reasonable inferences drawn therefrom
in the light most favorable to the judgment, and ignore all evidence and inferences to the contrary.
Id.
The evidence was that, on January 1, 2019, Daviess County Deputy Sheriff Larry Adams,
Jr., was dispatched to 400 Forest Street, Jamesport, Missouri, in reference to a vandalized vehicle.
When he arrived, he saw a white Chevrolet pickup truck that had damage to its windows. The
driver’s side window and the rear driver’s side window were broken. Roni Betchel owned the
pickup.
6
Section 211.181 regards actions the court may take in its Order for disposition; it does not dispense with
Rule 128.02 and 128.03 dispositional hearing requirements as suggested by the Juvenile Office.
11
Later that day, Adams was dispatched in reference to vandalism of a minivan owned by
Jim Harrington which was parked in front of the Jamesport Tavern. The windshield and passenger
side front headlight assembly were broken.
Adams next responded to an allegation of an assault that occurred in Jamesport, and spoke
with Jason Turley who informed him of additional property damage. After speaking with Turley,
Adams located a vandalized minivan belonging to Tina Ableidinger on West Auberry Grove.
There was damage to the driver’s and rear driver’s side windows and the driver’s side mirror
assembly. On North Locust, Adams located a Ford pickup truck that had damage to the driver’s
side mirror. Turley told Adams that B.O. was present during all incidents of vandalism – that
Turley, B.O., and J.R. (another juvenile) were together the entirety of the evening.
Turley testified that on December 31, 2018, he was cruising the back roads of Jamesport
with B.O. and J.R. J.R. was driving, B.O. was in the front passenger seat, and Turley was in the
back seat behind B.O. At some point, J.R. and B.O. used a crowbar and took turns bashing the
driver’s side windows of a white pickup truck. Turley believed the white truck belonged to
someone he had attended school with whose name started with a “J.” Later, “they started bashing
more by the bar and to the tavern,” including a minivan. While near the tavern, B.O. tried to hit
the van with the crowbar while hanging from the window of the moving vehicle. B.O. dropped
the crowbar and they stopped the car to retrieve it. J.R. hit the front windshield of the van with
the crowbar as he ran back to the car. The trio drove on and went down a back street by a church,
with B.O. hanging out the window hitting side mirrors on cars. Turley testified that he told J.R.
and B.O. several times that he wanted to go home. Turley testified that, the following day, Turley
went to B.O.’s home to advise B.O.’s mother about the vandalism, and was “grabbed up by his
12
stepdad and I had stitches in my arms.” Turley stated that he then contacted the police about B.O.’s
stepfather’s assault as well as B.O.’s actions the previous evening.
B.O. argues on appeal that the Juvenile Office failed to present evidence sufficient to prove,
beyond a reasonable doubt, that B.O. took part in property damage to the white pickup truck
belonging to Roni Betchel and the minivan belonging to Tina Ableidinger. We disagree.
As relevant to B.O.’s appeal, the Juvenile Office’s Motion to Modify alleged that B.O., in
concert with others, committed the Class B Misdemeanor of Property Damage in the Second
Degree, if he were an adult, by knowingly damaging the property of another by using a crowbar
to break the front and rear driver side windows of a 2001 Chevrolet 2500 pickup owned by Roni
Betchel. Further, that B.O., in concert with others, similarly damaged Tina Ableidinger’s van. The
damage allegedly occurred on December 31, 2018.7
The evidence at trial was that B.O. used a crowbar to break the windows of a white pickup
on December 31, 2018, in Jamesport, Missouri. Turley testified that B.O. was responsible for
breaking the windows in the “white Chevy.” On January 1, 2019, police were dispatched to victim
reports of property damage to vehicles; police were called to investigate the broken windows of
Roni Betchel’s white Chevrolet pickup, located on Forest Street, and the broken windshield and
passenger side front headlight assembly of Jim Harrington’s minivan, located near Jamesport
Tavern. Reasonable inferences can be drawn from this evidence that B.O., either alone or with
7
B.O. does not dispute that the Juvenile Office presented sufficient evidence to prove B.O. participated in
property damage to Jim Harrington’s minivan.
13
others, knowingly damaged Roni Betchel’s white Chevrolet pickup.8
Regarding Tina Ableidinger’s minivan, Deputy Adams was not even aware of damage to
Ableidinger’s minivan until Turley contacted him. Adams followed up on Turley’s statements
which led him to two more damaged vehicles, including Tina Ableidinger’s minivan. At that time,
Ableidinger had not yet reported damage to her vehicle. It can reasonably be inferred from this
evidence that, because police only discovered the damage to Ableidinger’s minivan after Turley
reported B.O.’s behaviors to police and provided specific information regarding specific vehicle
damage inflicted by B.O. and J.R., leading police to discover Ableidinger’s damaged minivan, that
B.O. took part in the damage to that minivan.
We find sufficient evidence from which a reasonable fact-finder could conclude that the
Juvenile Office proved, beyond a reasonable doubt, that on December 31, 2018, in concert with
others, B.O. committed the Class B Misdemeanors of Property Damage in the Second Degree, if
he were an adult, by knowingly damaging Roni Betchel’s and Tina Abliedinger’s vehicles.
B.O.’s second and third points on appeal are denied.
Conclusion
We conclude that sufficient evidence supported the court’s Judgment finding B.O.
committed the Class B Misdemeanors of Property Damage in the Second Degree, if he were an
adult, by knowingly damaging Roni Betchel and Tina Abliedinger’s vehicles. We conclude the
circuit court erred in failing to conduct a dispositional hearing in compliance with Rules 128.02
and 128.03 after adjudicating the Juvenile Office’s Motion to Modify. We reverse the circuit
8
The court was free to disregard Turley’s belief that the white Chevy pickup belonged to an individual Turley
had attended school with whose name started with “J.”
14
court’s Judgment on this ground only and remand for a dispositional hearing in compliance with
Rules 128.02 and 128.03.
Anthony Rex Gabbert, Judge
All concur.
15