In Re ECHJ

160 S.W.3d 815, 2005 Mo. App. LEXIS 630, 2005 WL 946838
CourtMissouri Court of Appeals
DecidedApril 26, 2005
DocketWD 64575, WD 64576
StatusPublished

This text of 160 S.W.3d 815 (In Re ECHJ) 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 ECHJ, 160 S.W.3d 815, 2005 Mo. App. LEXIS 630, 2005 WL 946838 (Mo. Ct. App. 2005).

Opinion

160 S.W.3d 815 (2005)

In the Interest of E.C.H.J. & D.C.L.J., Plaintiffs;
L.V.J., (Father), Appellant,
v.
Juvenile Officer, Respondent;
C.R.Y. (Mother), Defendant.

Nos. WD 64575, WD 64576.

Missouri Court of Appeals, Western District.

April 26, 2005.

*816 Jill Renee Creed, Macon, MO, for plaintiff and Guardian for Minors.

Joshua Fay, Macon, MO, for appellant.

Mike Greenwell, Shelbina, MO, for respondent.

Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.

JAMES M. SMART, JR., Judge.

L.V.J. ("Father") appeals from a judgment terminating his parental rights to his two minor children. The termination was based on Father's convictions in Iowa for sexual abuse and incest. Father challenges the statutory grounds for termination and the best interest rulings as against the weight of the evidence. We affirm.

Father and Mother were married. Two children were born of the marriage: D.C.L., a male who was eleven years old at the time of trial, and E.H.J., a female who was eight years old. These children are the subjects of the termination action at issue. Father also had another child from a previous relationship, A.J., who was nineteen years old at the time of trial.

In November 2001, while the family was living in Iowa, Mother witnessed Father engaging in sexual conduct with his daughter A.J. At that time, A.J. was sixteen years old and was living with Father and Mother. An information was subsequently filed, charging Father with five counts of third-degree sexual abuse and five counts of incest. After a guilty plea, Father was convicted in Iowa of one count of sexual abuse and one count of incest. See IOWA CODE §§ 709.4 and 726.2. Father was sentenced to a ten-year prison term in Iowa.

Meanwhile, sometime after the arrest, Father and Mother divorced. A judgment granted Mother legal and physical custody of the children. Father was granted no *817 visitation and ordered to pay child support. Mother moved to Missouri with the children. Father remains in prison in Iowa.

On July 1, 2003, the Juvenile Officer of Macon County, Missouri, filed a Petition for Termination of Father's parental rights with his two minor children, E.C.H. and D.C.L. Mother and the juvenile officer testified in behalf of termination. Father presented only his own testimony. The trial court ordered the termination of Father's parental rights as to the minor children.

The trial court relied on three statutory grounds. First, the court relied on section 211.447.2(3)(d),[1] finding that Father was convicted of a felony assault that resulted in serious bodily injury to one of his children. Second, the court relied on section 211.447.4(2), finding that Father committed severe and recurrent acts of sexual abuse toward another child in the family. Finally, the court relied on section 211.447.4(4), finding that Father was convicted of a sexual offenses prohibited by Chapter 566 in which one of his children was the victim, and a section 568.020 offense (incest) in which one of his children was the victim.

Father challenges each ground as against the weight of the evidence.

The court may not terminate parental rights unless it first finds that one of the statutory grounds has been proven by clear, cogent, and convincing evidence. In the Interest of E.D.M., 126 S.W.3d 488, 491 (Mo.App.2004). Clear, cogent and convincing evidence is evidence that instantly tilts the scales in favor of termination and leaves the finder of fact with the abiding conviction that the evidence is true. Id. (quoting In the Interest of C.C., 32 S.W.3d 824, 826 (Mo.App.2000)). Here, the trial court was presented with such evidence.

Section 211.447.4(4) provides that termination is appropriate where the parent has been found guilty of or pleaded guilty to (1) a Missouri Chapter 566 felony violation (sexual abuse) where one of his children was the victim or (2) a violation of Missouri section 568.020 (incest) where one of his children was the victim.

Here, the Juvenile Officer presented the certified copies of Father's Iowa convictions for third-degree sexual abuse and incest. IOWA CODE §§ 709.4 and 726.2. Father concedes that he was found guilty of the Iowa crimes. However, he points out that he was not found guilty of any Missouri crimes. Therefore, he says, the court's finding that the grounds in section 211.447.4(4) were proven is against the weight of the evidence.

Father chooses to construe the language as requiring a conviction in Missouri of a Missouri statute. Of course, in light of the obvious legislative purpose, it only makes sense to construe the language as requiring a conviction, whether in Missouri or elsewhere, of conduct that in Missouri would be violative of Chapter 566 or section 568.020 if it took place in Missouri. Where one view of the language does not comport with the obvious legislative purpose in the light of common sense, we will interpret such language so as to reflect the actual purpose of the legislature. See Phillips v. Am. Motorist Ins. Co., 996 S.W.2d 584, 591-93 (Mo.App.1999) (refusing to apply literal interpretation of statute where it would lead to an absurd result that the legislature could not have intended).

*818 It would make little sense to restrict the grounds in section 211.447.4(4) to crimes committed in Missouri. A parent's sexual violation of one of his own children raises a grave challenge to the issue of whether that parent should retain parental rights; and it makes no difference whether the acts were committed in Missouri or another state. It is absurd to think that the legislature would be concerned only about offenses perpetrated in Missouri and would be willing to expose children to the same risks posed by the tendencies reflected by the same heinous conduct committed elsewhere. While ordinarily we construe statutes affecting parental rights narrowly, such a narrow construction cannot apply in a case such as this, where the narrow construction would be absurd.

That the State of Missouri is concerned about the nature of the offense, and not the location of the offense, is further evident from the General Assembly's later enactment (in 2004) of section 211.038. In that statute, the legislature, concerned about avoiding reunification of children with parents who have offended sexually against children, provided indirectly some clarification of intent as to section 211.447.4(4). In section 211.038, the legislature provided that no child may be "reunited with a parent ... [who] has been found guilty of, or plead guilty to, a felony violation of Chapter 566 ... or ... 568.020... or an offense committed in another state when a child was the victim ... that would be ... a violation of ... 568.020 ... if committed in Missouri." This language confirms the legislative intent to base such decisions on the criminal conduct against a child or children, not the location of the criminal conduct. It would make no sense to provide that conviction of incest in Iowa would absolutely preclude reunification of parent and child in an abuse case in Missouri, but would not be grounds to terminate the parental rights of such a parent.

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Bluebook (online)
160 S.W.3d 815, 2005 Mo. App. LEXIS 630, 2005 WL 946838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-echj-moctapp-2005.