State v. M.B.

718 S.W.2d 132, 1986 Mo. App. LEXIS 4811
CourtMissouri Court of Appeals
DecidedOctober 10, 1986
DocketNo. 13739
StatusPublished
Cited by10 cases

This text of 718 S.W.2d 132 (State v. M.B.) 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
State v. M.B., 718 S.W.2d 132, 1986 Mo. App. LEXIS 4811 (Mo. Ct. App. 1986).

Opinion

PER CURIAM.

The parental rights of M.B., mother of D.J.B., were terminated by judgment entered in the trial court on March 10, 1984.1 M.B. filed an appeal, which was dismissed by this court for lack of jurisdiction, based on our belief that her notice of appeal was not timely filed. On transfer, the Supreme Court disagreed, holding that her notice was timely filed, and remanded the case to us for consideration of the appeal on the merits. In Interest of D.J.B., 704 S.W.2d 217 (Mo. banc 1986). We reverse.

D.J.B. was born February 24, 1972, and first came to the attention of the Butler County Circuit Court on July 3, 1978, when the juvenile officer of that county filed a petition alleging that D.J.B. was within the jurisdiction of the court because he was “in need of care and treatment under the supervision of this court for the following reasons: _ (c) The behavior, environment or associations of the child are injurious to his welfare or to the welfare of others ... in that heretofore to-wit, on the 2nd day of July, 1978, at and in the City of Poplar Bluff, County of Butler, and State of Missouri, said child did become neglected, to-wit: see line (e).” The petition did not state any facts to support the conclusions stated in the petition.

At the time the petition was filed, § 211.-091 and Rule 114.01(3)2 required that a petition seeking to bring a child within the jurisdiction of the juvenile court plainly set forth the facts which would confer such jurisdiction. The latter specified “including the date, place and manner of the acts alleged and the law or standard of conduct, if any, allegedly violated by the acts....” Section 211.031 provided, as it still does in somewhat different form, the outline of areas of juvenile court jurisdiction, including where “[t]he behavior, environment or associations of the child are injurious to his [134]*134welfare or to the welfare of others.... ” § 211.031.1(l)(c).3

The petition did not contain any allegation that M.B., or any other named person, had neglected the child, or what specific acts had been committed by M.B., or anyone else, that constituted neglect of the child by M.B., who was his custodian. Since the petition did not charge M.B. with neglect of her child, or inform her of the factual basis for any such charge, the allegations of the petition were insufficient, as a matter of law, to vest the Butler County Circuit Court with jurisdiction over the child. In Interest of C.J.A.A., 674 S.W.2d 266, 268 (Mo.App.1984); M.R.H. v. McElroth, 622 S.W.2d 15, 17 (Mo.App.1981). It, therefore, follows that the subsequent ex parte juvenile court order entered July 5, 1978, removing D.J.B. from the custody of his mother and placing him in the custody of the Division of Family Services (D.F.S.), with authority to place the boy in a foster home, which order was entered without hearing or notice, and was based solely on the basis of the allegations of the petition filed on July 3, was void for lack of jurisdiction.

Service of a copy of the defective petition was made on the mother on July 21, 1978, together with a summons advising her that a hearing would be held on the matter at 11:00 a.m. on July 25, in the Butler County Juvenile Court in the courthouse at Poplar Bluff. The next entry on the court’s docket sheet shows a guardian ad litem was appointed for D.J.B. on July 24, 1978. The record is silent as to what, if anything, transpired on July 25, which was the hearing date. The next record of any court order or proceeding is a summons issued to M.B. on March 24, 1980, directing her to appear in court on April 11, 1980, at 10:30 a.m. for a hearing on a petition in the interest of her son. We assume the petition referred to in the summons is the one filed July 3, 1978, as that is the only one shown in the record as filed up to that time.

The next chronological court record before us is a juvenile court docket entry of April 11, 1980, which reads as follows: “Juv.Off. in person — Juvenile by g.a.l. Jim Markel — Waived formal hearing — Evid. sustains petition — Found neglected — Child made a ward of the court — continue custody w/D.F.S. in foster care.” This was followed on July 2, 1982, with a filing by the juvenile officer of a petition for termination of parental rights, which, as amended November 24, 1982, reads as follows:

Comes now William G. Hentz, duly appointed juvenile officer of the Circuit Court of Butler County, State of Missouri and after making preliminary inquiry as provided by law, states:
1. [D.J.B.], a male child born February 24,1972, a resident of Butler County, Missouri.
2. The biological mother of the child is [M.B.] whose address is 208 North Riverview, Poplar Bluff, Missouri.
3. The biological father of the child is [J.H.B., Jr.], whose address is unknown.
4. This Court did on the 5th day of July, 1978 find that said child came within the jurisdiction of this Court and committed said child to the custody of the Division of Family Services and that thereafter, up to and including the date of the filing of this Petition said agency has provided for the care of said minor child.
5. That termination of all the parental rights of [M.B.] and [J.H.B., Jr.] in, to and over [D.J.B.] is being sought by the filing of this Petition and the institution of this proceeding by petitioner in acord [sic] with Section 211.447.2.
6. That the custody of the child has not been with his parents for six months or longer, the child has been under the jurisdiction of this Court for one year or longer immediately prior to the filing of the Petition to Terminate, the parents have failed, on a continuing basis, to rectify the conditions which form the basis of the petition filed under Section [135]*135211.031, and the Order entered Section 211.181, and there is reasonable cause to believe that the parents will not, even if given more time, rectify those conditions on a continuing basis, that the Juvenile Office, Division of Family Services and further agency have used reasonable, diligent and continuing efforts to aid the parents to rectify the conditions and provide on a continuing basis a proper home for the child.
7. The mother, [M.B.] is so mentally deficient she is unable to form an interest or act knowingly, and has substantially and continuously neglected the child and failed to give the child necessary care and protection. The mother, [M.B.], is unfit by reason of habitual use of intoxicating drugs which has also affected her health.
8. That for the foregoing reasons set forth in the paragraph immediately above termination of all parental rights of said parents in, to and over said minor child would be in the best interest of said child.
WHEREFORE, petitioner prays the Court to order, adjudge and decree all of the parental rights of [J.H.B., Jr.] and [M.B.] in, to and over said [D.J.B.] be terminated and said custody be transferred to the Division of Family Services and for such other and further relief as the Court shall deem meet and proper.

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Cite This Page — Counsel Stack

Bluebook (online)
718 S.W.2d 132, 1986 Mo. App. LEXIS 4811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mb-moctapp-1986.