Beevers v. M.H.

842 S.W.2d 200, 1992 Mo. App. LEXIS 1773, 1992 WL 339754
CourtMissouri Court of Appeals
DecidedNovember 24, 1992
DocketNo. 17837
StatusPublished
Cited by4 cases

This text of 842 S.W.2d 200 (Beevers v. M.H.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beevers v. M.H., 842 S.W.2d 200, 1992 Mo. App. LEXIS 1773, 1992 WL 339754 (Mo. Ct. App. 1992).

Opinion

MAUS, Judge.

This appeal stems from the termination of the parental rights of M.H., T.H. and E.B. to two children, R.I.H. and K.D.H. M.H. is the mother of R.I.H. and K.D.H. Both children were born during her marriage to T.H. However, M.H. asserted E.B. was the putative father of K.D.H. Only M.H. appeals from the judgment of termination.

The children were taken into protective custody by the Howell County Juvenile Officer on December 6, 1989, and December 12, 1989. That custody was, pursuant to Rule 111.02 b. (3), continued by ex parte orders on December 7,1989, and December 13, 1989. On March 23, 1990, the Juvenile Division of the Circuit Court of Howell County adjudicated the children to be abused and under the court’s jurisdiction by reason of § 211.031.1(l)(a).1 On January 16, 1991, a Petition for Termination of Parental Rights was filed. A hearing on that petition was held on August 29, 1991. A judgment terminating the parental rights of the defendants was entered on September 17, 1991.

By her first point of error, M.H. contends her parental rights were improperly terminated under § 211.447.2(3) because the children had not been under the jurisdiction of the Juvenile Division for one year. To support this argument, she points out that the Petition for Termination was filed less than ten months after the Juvenile Division adjudged the children to be under its jurisdiction by reason of § 211.031.l(l)(a). She cites In Interest of Baby Girl W, 728 S.W.2d 545 (Mo.App.1987), In Interest of D.J.B., 718 S.W.2d 132 (Mo.App.1986) and In Interest of D.L.D., 701 S.W.2d 152 (Mo. App.1985).

She relies principally upon the doctrine in In Interest of D.J.B., supra. In that case, a judgment of termination was based upon § 211.447.2(2)(i) b. RSMo Supp.1982. Termination under that section (now repealed), as under present § 211.447.2(3), had to be premised upon the child having been under the jurisdiction of the juvenile division for one year. In D.J.B., supra, the court found the petition upon the basis of which the juvenile court assumed jurisdiction of the child failed to state facts establishing jurisdiction and an ex parte order assuming jurisdiction was void. The court concluded that a judgment of termination based upon one year’s jurisdiction was erroneous as the juvenile division did not acquire jurisdiction. In reversing the judgment of termination, the appellate court said:

“It, therefore, follows that if the judgment in the termination proceeding is solely based on the pleading and proof on the allegations of paragraph six, the judgment must, necessarily, fail due to the lack of proof of any valid court order entered under the claimed authority of § 211.181. In Interest of D.L.D., supra, 701 S.W.2d [152] at 159-160 [Mo.App.1985].” In Interest of D.J.B., 718 S.W.2d at 139. (Emphasis added.)

Section 211.447.2(3), in relevant part, provides the Juvenile Division may terminate parental rights when “[t]he child has been under the jurisdiction of the juvenile court for a period of one year, and....” Section 211.131.3 RSMo 1986 provides:

[202]*202“The jurisdiction of the court attaches from the time the child is taken into custody.”

The findings upon which the Juvenile Division based its judgment terminating M.H.’s parental rights included the following:

“The ‘period of one year’ mentioned in § 211.447.2(3) means one year immediately next preceding the filing of the petition. Thus if ‘jurisdiction’ did not commence until the formal adjudication was made, the Court has no power to terminate parental rights under that section. However, the Court finds that its jurisdiction of the two children here attached from the time they were first taken into custody in December 1989, more than one year before the petition was filed. § 211.131.3 expressly states that ‘the jurisdiction of the Court attaches from the time the child is taken into custody.’ Although no cases have been found construing this provision, and although the term ‘jurisdiction’ may be used in various senses in the law of our State, nevertheless all sections of the Juvenile Code are to be read together and construed in pari materia. It must therefore be presumed that the term ‘jurisdiction’ in § 211.447.2(3) has the same meaning it bears in § 211.131.3. Accordingly, the Court may entertain the TPR petition under § 211.447.2(3).” (Emphasis in original.)

In addition to § 211.131.3 RSMo 1986, the following Rules are relevant:

“The jurisdiction of the court attaches from the time the juvenile is taken into judicial custody.” Rule 111.01 c.
“ ‘[Jjudicial custody’ means the taking or retention of custody of the person of a juvenile in either protective custody or detention;”. Rule 110.05 a. (8).
“ ‘[Protective custody’ means the taking and retention of the person of a juvenile in judicial custody in connection with proceedings under section 210.125 or subdivision (1) of subsection 1 of section 211.031 RSMo;”. Rule 110.05 a. (19).

Citing § 211.131.3 RSMo 1986 and Rule 111.01 c., the respondent Juvenile Officer argues that “the child has been under the jurisdiction of the juvenile court” within the meaning of § 211.447.2(3) since he took them into custody more than one year before he filed the Petition for Termination.

The term “jurisdiction” is used in various contexts and with different meanings. In re Marriage of Neal, 699 S.W.2d 92 (Mo.App.1985). There are three alternative events that could be held to establish when “the child has been under the jurisdiction of the juvenile court” within the meaning of § 211.447.2(3). Those three alternatives are: when the juvenile is taken into protective custody by the Juvenile Officer, Rule 111.01 c.; when the juvenile has been taken into protective custody and the juvenile division by an ex parte order “determines the conditions requiring protective custody continue to exist”, Rule 111.02 b. (3); or the entry of a judgment, following an adversarial hearing, finding facts which establish “its jurisdiction over the child”, § 211.-181.

The cases cited by M.H. apparently construe § 211.447.2(3) to mean that a child is not under the jurisdiction of the Juvenile Division within the meaning of that subsection until there has been an adversarial hearing pursuant to § 211.181 and a judgment entered finding the child is within the jurisdiction of the Juvenile Division. However, that construction is not mandated by the express terms of § 211.447.2(3) nor by the provisions of Chapter 211. The phrase “under the jurisdiction of the juvenile court” must be judicially construed.

Chapter 211 is a Code and the statutes within that Code are to be construed together. State v. Williams, 473 S.W.2d 382 (Mo.1971). The canons of statutory construction are well known. A canon particularly applicable to the construction of the foregoing phrase is the following:

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Bluebook (online)
842 S.W.2d 200, 1992 Mo. App. LEXIS 1773, 1992 WL 339754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beevers-v-mh-moctapp-1992.