In Re ASO

75 S.W.3d 905, 2002 WL 1162403
CourtMissouri Court of Appeals
DecidedJune 4, 2002
DocketWD 60680
StatusPublished

This text of 75 S.W.3d 905 (In Re ASO) 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 Re ASO, 75 S.W.3d 905, 2002 WL 1162403 (Mo. Ct. App. 2002).

Opinion

75 S.W.3d 905 (2002)

In the Interest of A.S.O.
Chad Campbell, Chief Juvenile Officer, Respondent,
v.
R.L.O. (Natural Mother), Appellant.

No. WD 60680.

Missouri Court of Appeals, Western District.

June 4, 2002.

*908 Ronald R. Holliday, St. Joseph, for Respondent.

Candace J. Barnes, St. Joseph, for Appellant.

David R. Schmitt, St. Joseph, Guardian ad litem.

Before HOWARD, P.J., and EDWIN H. SMITH and NEWTON, JJ.

EDWIN H. SMITH, Judge.

R.L.O. (mother) appeals the judgment of the Circuit Court of Buchanan County, Juvenile Division, terminating her parental rights to her minor child, A.S.O. The Juvenile Officer's (JO) petition to terminate parental rights was first heard by the Honorable J.W. "Bill" Roberts, resulting in a termination of parental rights (TPR) judgment, pursuant to § 211.447.4(3),[1] which was appealed to this court in In re A.S.O., 52 S.W.3d 59 (Mo.App.2001) (A.S.O. I). In that appeal, we reversed the judgment for failure of the juvenile court to make the findings required to terminate under § 211.447.4(3) and remanded the cause with directions for the court to make the requisite findings. While A.S.O. I was pending on appeal, Judge Roberts retired. Upon remand, his successor, the Honorable Daniel F. Kellogg, pursuant to Rule 79.01,[2] entered, without granting a new trial, a judgment[3] terminating the mother's parental rights, from which she now appeals (A.S.O. II).

The mother raises three points on appeal. In Point I, she claims that the juvenile court in A.S.O. II erred in entering its TPR judgment, terminating her parental rights to A.S.O., because it abused its discretion in failing, pursuant to Rule 79.01, to grant a new trial prior to entering its judgment. In Point II, she claims that the juvenile court in A.S.O. II erred in terminating her parental rights, pursuant to § 211.447.4(3), because such termination was not supported by clear, cogent and convincing evidence. In Point III, she claims that the juvenile court erred in terminating her parental rights, pursuant to § 211.447.4(3), because it failed to make the requisite finding of § 211.447.4(3)(a) for termination under that section.

We affirm.

Facts

R.L.O. is the natural mother of A.S.O., who was born on August 16, 1996. In *909 August of 1997, the Division of Family Services (DFS) opened a case on A.S.O. after it received a hotline call that A.S.O. was being abused and neglected by her mother. After an investigation by the DFS, A.S.O. was placed in foster care in the spring of 1998.

On December 23, 1999, the Buchanan County Juvenile Office filed a petition in the Circuit Court of Buchanan County, Juvenile Division, requesting that the court terminate the mother's parental rights pursuant to § 211.447.4(2) and § 211.447.4(3). The mother filed her answer to the petition on January 19, 2000. The matter proceeded to trial before the Honorable J.W. "Bill" Roberts on August 24, 2000, and after hearing testimony for two days, the case was continued to October 5, 2000, at which time the trial was concluded. At the conclusion of the evidence, the cause was taken under advisement. On October 23, 2000, Judge Roberts entered his judgment terminating the mother's parental rights, pursuant to § 211.447.4(3), and ordered that A.S.O. continue as a ward of the court and remain in the care and custody of the DFS. On November 29, 2000, the mother filed her notice of appeal. On December 31, 2000, while the mother's appeal was pending, Judge Roberts retired and was succeeded by the Honorable Daniel F. Kellogg on January 1, 2001.

On August 15, 2001, this court reversed the TPR judgment of Judge Roberts and remanded the case, with directions, for the court to enter its findings, conclusions and judgment in accordance with § 211.447. In re A.S.O., 52 S.W.3d 59 (Mo.App.2001). The judgment was reversed for failure of the juvenile court to make the findings required by § 211.447.4(3)(a)-(d). Id. at 65-66. Upon remand, Judge Kellogg entered on October 3, 2001, without granting a new trial, a judgment terminating the mother's parental rights to A.S.O., pursuant to § 211.447.4(3).

This appeal follows.

I.

In Point I, the mother claims that the juvenile court in A.S.O. II erred in entering its TPR judgment, terminating her parental rights to A.S.O., because it abused its discretion in failing, pursuant to Rule 79.01, to grant a new trial prior to entering its judgment. Specifically, the mother claims that it was an abuse of discretion not to grant a new trial in that the court's decision to terminate under § 211.447.4(3) turned on credibility assessments by the court of various witnesses who testified in A.S.O. I, which assessments the court could not fairly make without having personally observed the witnesses testify.

There is no dispute that Judge Kellogg's authority to enter his TPR judgment in A.S.O. II on remand is governed by Rule 79.01. It provides:

If by reason of going out of office, death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact are filed, then any other judge sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that those duties cannot be performed because such judge did not preside at the trial or for any other reason, such judge may grant a new trial.

Rule 79.01 (emphasis added). There is also no dispute that under the rule, the decision as to whether to grant the mother a new trial was within the sound discretion of the court. However, there is a dispute *910 over whether the rule requires the trial court to sua sponte consider granting a new trial or whether a request has to be made by one of the parties. The JO takes the latter position and contends that without a request, as was the case here, the issue of the court's failure to grant a new trial under the rule was not preserved, relegating the appellant to plain error review under Rule 84.13(c). We disagree.

In support of his position that Rule 79.01 should be interpreted as requiring a request for a new trial in order to preserve that issue on appeal, the JO asserts that the "term `grant,' [as used in Rule 79.01] given it's [sic] common usage, presupposes a request." Other than this bare assertion, the JO cites no authority for interpreting Rule 79.01 as requiring a request for a new trial, and our review does not disclose any cases addressing the issue. Thus, this issue of interpreting the rule appears to be a case of first impression.

In interpreting Supreme Court rules, we are to apply the same rules used for interpreting state statutes. State ex rel. Streeter v. Mauer, 985 S.W.2d 954, 956-57 (Mo.App.1999). Hence, in interpreting Rule 79.01, we are to ascertain the intent of the Supreme Court, giving the words used their plain and ordinary meaning. Id. at 957.

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Bluebook (online)
75 S.W.3d 905, 2002 WL 1162403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aso-moctapp-2002.