Greene County Juvenile Office v. M.E.G.

340 S.W.3d 607, 2011 Mo. App. LEXIS 579
CourtMissouri Court of Appeals
DecidedApril 26, 2011
DocketNo. SD 30866
StatusPublished
Cited by9 cases

This text of 340 S.W.3d 607 (Greene County Juvenile Office v. M.E.G.) 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
Greene County Juvenile Office v. M.E.G., 340 S.W.3d 607, 2011 Mo. App. LEXIS 579 (Mo. Ct. App. 2011).

Opinion

PER CURIAM.

M.E.G. (“Mother”) appeals the termination of her parental rights to and over her young child, X.D.G. (“Child”). The judgment entered by the Juvenile Division of the Circuit Court (“the trial court”) terminated Mother’s parental rights on the grounds of abuse and/or neglect and a failure to rectify the conditions that caused Child to come into alternative care (“failure to rectify”).

Because the trial court’s abuse/neglect and failure to rectify findings were not supported by substantial evidence of a convincing link between Mother’s past behavior, her conduct at the time of the termination trial, and the trial court’s prediction of the likelihood of future harm to Child, as mandated by our high court in In re K.A.W., 133 S.W.3d 1, 11 (Mo. banc 2004), we must reverse the trial court’s judgment in regard to its termination of Mother’s parental rights.1

[610]*610Facts

While our recitation of the relevant facts is generally in accordance with the principle that trial evidence is viewed in the light most favorable to the decision, see In re C.A.M., 282 S.W.3d 398, 405 (Mo.App. S.D.2009); In re M.R.F., 907 S.W.2d 787, 789 (Mo.App. S.D.1995), we also cite opposing evidence because grounds for termination must be supported by evidence that “instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.” K.A.W., 133 S.W.3d at 12 (emphasis added).

On April 22, 2008, Greene County Children’s Division employee Pamela Drake investigated a hotline call that alleged Child, approximately seven weeks old at the time, had a fracture of the tibia bone of his left leg. Medical records indicated that Child was examined in the emergency room on the evening of April 21, 2008. Drake contacted Mother at the hospital emergency room where Mother and Child’s paternal great-aunt had taken Child for examination and treatment. Mother told Drake that she brought Child to the emergency room when Father noticed Child’s leg was swollen. Mother “had no explanation[ ]” for the injury other than stating that both parents had been pushing or pumping Child’s legs to relieve gas. Mother “said that for the past two, two-and-a-half weeks, [Child] had been extremely fussy[ ]” and “cried all the time.” Mother told Drake that Child “cried the most when he was having his diaper changed.” Mother told Drake that Child had been in the care of Father and herself (“the parents”) during the previous two weeks. Mother also explained to Drake that immediately after Child’s birth, the family lived with Mother’s parents before moving to their own home. Child was released from the hospital into Mother’s care, and Drake continued her investigation.

Father called Drake on April 23rd and he told her that about a week earlier he noticed that Child’s left calf felt harder than the right one, but he did not notice any swelling until the evening Child was taken to the hospital. Drake said Father indicated that he noticed the swelling around 8:00 p.m. Father told Drake that about two weeks before the trip to the emergency room, Child did not want to be held, was “very fussy,” and cried constantly. During that time, Father did not think Child had been left with anyone. He said that about three weeks previously Child had stayed with Mother’s parents for about three-to-four hours.

Drake then visited the parents’ home that same day, and Father told her at that point that other people had been around the infant during “the past few weeks.” Both parents told Drake that they had taken Child to the doctor three times in the past week. Drake spoke with one of the doctors, who indicated to her that Child was diagnosed with acid reflux. Drake did not speak with the other doctors the parents had mentioned. It was arranged that Father’s mother would stay in the parents’ home with Child and act as Child’s primary caregiver until a conference with a juvenile officer could be held the following day.

At the conference with the juvenile officer, the parents could provide no satisfactory explanation for how Child had been injured. Because the weekend was coming up, the parents agreed to allow Child to stay with relatives and that they (the parents) would not have any unsupervised visitation with Child. A day or two later, Mother gave Drake a list of seven people she said had been in the parents’ home during the two week period before they [611]*611had taken Child to the emergency room. Drake spoke with several people, but she did not know if any of them were on the list Mother had given her.

Dr. Rogers saw Child on April 23rd. He testified that the parents’ only explanation for the break (which the doctor described as being at “the mid-shaft of [Child]’s left tibia),” was that Child “had a lot of gas pain and that they had been performing some sort of a maneuver to pump his legs back and forth to try and assist with expulsion of the gas.” Dr. Rogers did not believe that such activity was consistent with the type of injury he had observed and stated, “The amount of force that would be required to break the tibia, you know, in an infant, would be considerable, and I did not think that simply holding the legs and pumping them back and forth would administer sufficient force to the leg to — to produce such a fracture.” Dr. Rogers said that because a young child’s bone is not brittle, it generally tends to bend before it breaks — like “a green stick off of a tree” — and is therefore difficult to break.

Dr. Rogers further explained that because Child was too young to walk, or even to roll over, some potential causes of injury — such as rolling off a bed or falling down while playing — could be eliminated. When asked whether he could say when the fracture had occurred, Dr. Rogers stated:

It’s difficult to say exactly. However, in a young patient, they tend to produce callus or healing bone quickly, and sort of the younger the — the patient is, the faster the callus will begin to show up on x-ray. And I noted that there was no callus that was visible on the x-rays that had been taken on April 21st or April 22nd, so I assumed that it was a — an acute fracture probably within a week, but it’s hard to say exactly.

Dr. Rogers also testified that there was no visible bruising on Child’s leg, but the injury showed swelling and Child indicated pain when the leg was moved. He explained that swelling is the most common visible sign of injury; bruising can vary from child to child. Dr. Rogers testified that the swelling, caused by injury to the soft tissue around the bone and/or bleeding from the broken bone itself, commences “[wjithin hours, for sure.” Thereafter, “you would expect some swelling probably to persist for a couple of weeks anyway.” Finally, Dr. Rogers said that it would have been unusual for such a child to be seen in a doctor’s office or emergency room without someone noticing the fracture.

By April 30, 2008, an additional medical evaluation had been completed and revealed that Child had also sustained other fractures. Dr. Clyde Parsons, III testified that records from a full-body scan performed on Child on April 24, 2008, not only confirmed the left tibia fracture previously discovered by Dr. Rogers but also revealed fractures of Child’s right tibia and the ulna bone in Child’s left arm. Dr.

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340 S.W.3d 607, 2011 Mo. App. LEXIS 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-county-juvenile-office-v-meg-moctapp-2011.