In Interest of ALW

773 S.W.2d 129
CourtMissouri Court of Appeals
DecidedMay 16, 1989
Docket40722
StatusPublished
Cited by27 cases

This text of 773 S.W.2d 129 (In Interest of ALW) 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
In Interest of ALW, 773 S.W.2d 129 (Mo. Ct. App. 1989).

Opinion

773 S.W.2d 129 (1989)

In the Interest of A.L.W., L.R.W., A.M.W. and H.A.K.
Alan M. GREMLI, Juvenile Officer, Respondent,
v.
C.J.W. (Natural Mother), Appellant.

No. 40722.

Missouri Court of Appeals, Western District.

May 16, 1989.
Motion for Rehearing and/or Transfer Denied June 27, 1989.
Application to Transfer Denied August 1, 1989.

Steven Douglas Wolcott, Gladstone, for appellant.

Max Von Erdmannsdorf, Kansas City, for respondent.

Before FENNER, P.J., and SHANGLER and BERREY, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 27, 1989.

SHANGLER, Judge.

This review consolidates four appeals from orders of the Juvenile Division of the Circuit Court of Clay County which made the four minor daughters of C.J.W., the *130 natural mother, wards of the court and placed them into the custody of the respective natural fathers.

In response to emergency telephone advice from neighbors and the landlady, the police found the four children at their home unattended and unsupervised. That was on April 7, 1988. The investigation by the social workers discovered that the children had been left alone overnight by the mother and had been left unsupervised on other occasions. On those allegations, the juvenile officer brought a petition under § 211.031.1(1), RSMo 1986, on the ground that the parents or others legally responsible neglected or refused to provide proper support and care for the children. The court was asked to assume jurisdiction of the care and protection of each child.

At the hearing on the petitions there was evidence that on numerous other occasions the mother left the children with relatives or friends for extended periods who became unwilling custodians when the mother did not return as promised. There was other evidence that the mother accepted other children as a babysitter, but then left them with her own children and simply did not return, nor did anyone know where she could be reached. On some such occasions, other responsible adults stepped in to care for the children. An aunt had looked after the children on occasions when they had been left unattended, but had to discontinue that intervention because it interfered with her work and imperilled her employment. The grandmother of the four children [mother of the appellant] also testified that some months before, she fetched the children from the home of a neighbor where her daughter had left them the night before but had not returned by the next morning. She reprimanded the daughter about that and other like behavior. The evidence related incident after incident when the mother left the children unattended or in the charge of an adult with the promise to return within hours, but then she did not come back until days later.

The natural father of three of the girl children, a joint custodian under the decree of dissolution of marriage, testified that on 15 or 20 occasions the mother left the children with her boyfriend and did not return, so that he was called by the boyfriend to retrieve them. It was his testimony that the mother was an habitual user of drugs, and that she called on him urgently at odd hours for drug money. The maternal grandmother of the children reported to the juvenile authorities during the investigation of these petitions that the mother had admitted to her past cocaine use. Other witnesses also testified to her drug habits. It was the report of the guardian ad litem of the four children that, although the mother receives $800 per month in child support and the monthly cost for utilities, subsidized rent and food amounts to only $483 per month, the mother is constantly short of funds. That report disclosed also that the mother was given money by a friend for drug tests. At the hearing on the adjudication of the petitions in the juvenile court, the mother acknowledged that the order of joint custody of the dissolution court provides that she undertake a three month drug-counseling session. There was evidence that the order was not heeded.

An incident prior to the event of April 7, 1988, which prompted the petitions for the court to assume jurisdiction over the four children, gave a reason to Division of Family Services to suspect the need for protective services for the children. That entailed a regimen of regular contact with the family, counseling, and instruction in parenting. The mother, however, denied any such need and refused the services. It was her response that the pre-April 7, 1988 incident—when she left the children unattended for some time—was "a one-time thing." She knew "it was wrong [and] shouldn't have done it, [but] it would never happen again."

The appellant mother gave her explanation of why her children were found alone on April 7, 1988, and denied that she had been gone the entire previous night. She explained that she had returned that night, took the baby-sitter home, and then was called by Donna Abernathy, a pregnant woman with labor pains, took her to the hospital, and then was delayed by car trouble. The eldest child, an eleven-year-old, *131 reported, however, that someone called Sam had spent the night with them as baby-sitter. That is the same Sam the mother said she took home at 11 p.m. that night. The guardian ad litem reported, however, that the North Kansas City Hospital had no record of any treatment of Donna Abernathy on April 7, 1988, as asserted in the testimony of the mother.

The juvenile court found from this evidence—that is, that on at least one occasion prior to April 7, 1988, the children were left alone without adult supervision—that the allegations of the petitions were proven by the requisite quantum and assumed jurisdiction of the children under § 211.031.1(1). That phase of the adjudication done, the court received evidence as to the disposition to be entered. The order in each case made the child the ward of the juvenile court until the age of seventeen years or until jurisdiction was earlier terminated. The oldest child, eleven years of age, was placed in the custody of her natural father subject to the supervision of the Missouri Division of Family Services. The three younger children, ages six, six and four, were placed in the custody of their natural father subject to a like supervision. The mother was granted regular visitation also subject to supervision.

On this appeal the mother contends that the allegations of the petition were not proven by clear and convincing evidence, and hence the assumption of jurisdiction of the children was without lawful ground. The mother contends also that the order of disposition, which undertakes to remove the children from her custody but neglects to articulate the findings § 211.183, RSMo Supp.1988 requires, remains unformulated as a judgment.

The standard of proof in a hearing on a petition which alleges as a basis for jurisdiction that the child is in need of the care and protection of the juvenile court is evidence clear and convincing. Rule 117.05(b); In the Interest of E.J., 741 S.W.2d 892, 894[3] (Mo.App.1987). The rules of evidence which appertain to such a proceeding are those which govern a case in equity. Rule 117.04; State ex rel. R.L.W. v. Billings, 451 S.W.2d 125, 126[2] (Mo. banc 1970). The mother acknowledges that there was substantial evidence, by proof clear and convincing, that on April 7, 1988, she left the four children alone.

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Bluebook (online)
773 S.W.2d 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-alw-moctapp-1989.