In the Interest of B_ M_ P

704 S.W.2d 235
CourtMissouri Court of Appeals
DecidedJanuary 20, 1986
DocketNos. 14089 to 14092
StatusPublished

This text of 704 S.W.2d 235 (In the Interest of B_ M_ P) 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 the Interest of B_ M_ P, 704 S.W.2d 235 (Mo. Ct. App. 1986).

Opinions

CROW, Presiding Judge.

Pursuant to § 211.447, RSMo Cum.Supp. 1984, a separate petition was filed with respect to each of five minors, § 211.442(1), RSMo Cum.Supp. 1984, to terminate the parental rights of their parents, § 211.-442(2), RSMo Cum.Supp. 1984. All five minors were born to the same mother, hereafter referred to as “G_” The four youngest (those whose names are abbreviated in the title of this action) were sired by the same father, J_ W_, hereafter referred to as “appellant.” The Juvenile Division of the Circuit Court of Bollinger County, hereafter referred to as “the trial court,” conducted a hearing at which all five petitions were considered simultaneously. Thereafter, the trial court entered a separate order with respect to each of the five minors, terminating the [239]*239parental rights of both parents of each minor.

Appellant appeals from each of the four orders terminating his parental rights to a child of his. § 211.482, RSMo 1978. G_ did not appeal from any of the orders. The father of the eldest child did not appeal from the order regarding that child. That child was born to G_ out of wedlock, and the father of such child had never acknowledged such child as his own by affirmatively asserting paternity. See § 211.442(2), RSMo Cum.Supp. 1984.

Appellant's four appeals were consolidated, and he has filed one brief containing three assignments of error. One of them (Point 2) states:

“The court erred in terminating appellant’s parental rights with respect to all children in that the State failed to show by clear, cogent and convincing evidence that he repeatedly committed an act of incest and other sexual molestation (Section 211.447.2(2)(c)) or that he subjected the children to a substantial risk of serious physical, mental or emotional harm by reason of ‘debauchery or repeated lewd and lascivious behavior’ (Section 211.447.2(2)(h)). Nor was there evidence of any efforts whatsoever to offer treatment or services to the family for the alleged sexual abuse. There was no evidence of any mistreatment of [B_ N_ W_, R_C__W_, or J_T_W_

The trial court, in order to terminate appellant’s parental rights to any one of his children, was required to find that at least one of the statutory grounds relied on by the Juvenile Officer in regard to such child was established by clear, cogent, and convincing evidence. § 211.447.2(2), RSMo Cum.Supp. 1984; D.G.N. v. S.M., 691 S.W.2d 909, 912[2] (Mo. banc 1985); In the Interest of M.N.M., 681 S.W.2d 457, 458 (Mo.App.1984). This standard of proof meets the due process requirements of U.S. Const, amend. XIV, as enunciated in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 1402-03[13, 14], 71 L.Ed.2d 599 (1982). The trial court was also required to find that termination of appellant’s parental rights was in the best interest of such child. § 211.447.2, RSMo Cum.Supp. 1984; D.G.N., 691 S.W.2d at 912[2]; M.N.M., 681 S.W.2d at 458.

All five children were represented in the trial court by a guardian ad litem, an attorney at law. The guardian ad litem has not filed a brief in this Court, but the guardian ad litem has adopted the brief filed by counsel for the Juvenile Officer, which brief urges us to affirm the orders of termination.

In discussing the evidence on which the trial court based its orders, we refer to the eldest of the five children (the child not sired by appellant) as “Girl 1,” said child being a female born May 26, 1977. Of the four children sired by appellant, the three eldest are females. They are: B_ M_P_, hereafter referred to as “Girl 2,” born July 23, 1979, out of wedlock; R._C_W_, hereafter referred to as “Girl 3,” born September 24, 1980, in wedlock; and B_N_W_, hereafter referred to as “Girl 4,” born February 21,1983, in wedlock. The youngest child, a male, was born January 27, 1984, in wedlock. He is hereafter referred to as “Boy.”

The saga that ultimately spawned this litigation began when G_came to Bol-linger County in 1977 as a foster child. At that time, she was pregnant with Girl 1. G_was 17 years of age when Girl 1 was born.

G_ met appellant in 1978, and they lived together in Bollinger County, in the home of appellant’s mother, hereafter referred to as “R_W_,” for “a year or so.” R_W_lived there with them. Apparently, Girl 1 lived there also.

Appellant and G_ (and presumably Girl 1) then left R_W_’s home and moved into “a little cabin, two room cabin,” and were residing there when Girl 2 was born.

Some time thereafter, appellant and R_W_brought Girl 1 and Girl 2 to the Bollinger County office of the Division of Family Services (“D.F.S.”), expressing [240]*240concern that G_was not giving the girls “proper care.” Appellant was desirous that his sister take custody of, or adopt, Girl 2.

As a result of D.F.S. involvement, juvenile jurisdiction was acquired over both girls. They, together with G_, were admitted to the Blosser Home, Marshall, Missouri, on January 7, 1980, for residential counseling and development of G_’s parenting skills.

G_, Girl 1, and Girl 2 remained at the Blosser Home until “the first of March of 1980,” when they returned to Bollinger County with appellant. At that time, they “moved back to the basement” of R_ W_'s home. Juvenile jurisdiction was thereupon terminated, but D.F.S. continued to provide protective services.

Appellant and G_ were married in April, 1980. As noted earlier, Girl 3 was born September 24, 1980, and Girl 4 was born February 21, 1983.

In June, 1983, D.F.S. received a report that Girl 4 “was not being properly supervised.” A D.F.S. caseworker explained: “She had be [sic] placed on the hood of the pick-up truck in her punkin’ seat and had fallen off and sustained bruises and scratches on her head. She had been sit [sic] on the kitchen table in her punkin’ seat and had fallen off to the concrete floor. And this had happened more than once.”

Boy, as already explained, was born January 27, 1984. Appellant, G_, and all five children continued to reside in the basement of R_ W_’s home. Describing it, the caseworker testified: “It’s an unfinished basement. No — It’s concrete floor. There were no partitions. The mattresses were on the floor for the bedding. ... [T]here was not sufficient closet space or storage space, so generally it was cluttered and unkept.”

In April, 1984, appellant and G_ “were having a lot of marital problems.” G_ contacted a D.F.S. caseworker and asked if the latter would put the children in foster care. D.F.S. declined, choosing instead to work with appellant and G_ “trying to help them work through their problems.”

On June 8, 1984, D.F.S. received a “child abuse hotline report” that appellant was “sexually abusing” Girl 1. At that time, appellant, G_., and the five children were still residing in the basement of R_ W_’s home. A caseworker went there that same afternoon. When the caseworker arrived, G_ was standing at a sink washing dishes. The caseworker testified: “It was a very hot day. The odor in the basement smelled of urine and musty odor. The baby [Girl 4] was lying on the kitchen table. The kitchen table was in a slanting position. Evidently the legs weren’t very sturdy. She was there sleeping. There were drippings of food on the table. Flies all over the child....

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704 S.W.2d 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-b_-m_-p-moctapp-1986.