T.N. v. Phelps County Juvenile Office

120 S.W.3d 782, 2003 Mo. App. LEXIS 1592, 2003 WL 22309603
CourtMissouri Court of Appeals
DecidedOctober 9, 2003
DocketNo. 25171
StatusPublished
Cited by2 cases

This text of 120 S.W.3d 782 (T.N. v. Phelps County Juvenile Office) 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
T.N. v. Phelps County Juvenile Office, 120 S.W.3d 782, 2003 Mo. App. LEXIS 1592, 2003 WL 22309603 (Mo. Ct. App. 2003).

Opinion

James K. Prewitt, Judge.

This appeal involves the placement of N.D. (“Child”) into the protective and legal custody of the Phelps County Division of Family Services (“DFS”) upon the juvenile court’s finding that her parents are “unfit, unable or unwilling to be [her] custodian.” Although Child’s father, P.N., (“Father”) has filed a separate appeal, the appeal before us is a pro se appeal brought by T.N. (“Grandfather”), Child’s paternal grandfather, who indicates on his notice of appeal that “[t]his appeal is taken on [Child’s] behalf pursuant to Section 211.261[,] RSMo.” Child’s mother, R.D., (“Mother”) has not filed an appeal.2

The only issue addressed in this opinion is related to Grandfather’s contention that he may, in addition to bringing this appeal on behalf of Child, appeal on his own behalf. All other issues raised in his appeal are addressed in a separate order and memorandum opinion, which affirms the actions and judgment of the juvenile court in compliance with Rules 84.16(b)(2) and (5). For that separate opinion, the parties have been furnished with a memorandum, for their information only, that sets forth the reason for the order.

FACTS

Mother and Father are not married and live apart from each other. Prior to the proceedings at issue, Child was living with Mother, and never had lived with Father.

Child was born October 10, 2001, at Barnes-Jewish Hospital in St. Louis. At [784]*784that time, both Mother and Child tested positive for benzodiazepine. This information was reported to Stacy Johns, a caseworker at DFS, in a referral from a newborn crisis assessment by the hospital. Upon her investigation into the care of Child, Ms. Johns determined that Mother was in need of treatment for her drug addiction.

There were attempts to avoid intervention from the juvenile court prior to the removal of Child. Services offered to Mother included public assistance programs such as Medicaid as well as food stamps, counseling, and parenting classes. A “safety plan” was created that called for Mother’s participation in outpatient drug therapy three times per week until arrangements could be made for Mother to admit herself for inpatient treatment, but Mother failed to comply with the outpatient therapy. Mother tested positive on subsequent drug screenings December 27, 2001 and again on January 15, 2002. She was scheduled for inpatient treatment at the McCambridge Center in Columbia, to begin on February 4, 2002. However, Mother failed to keep her appointment at the center.

On February 5, 2002, a request for detention and petition were filed by Phelps County Chief Deputy Juvenile Officer, Don Nelson (“Juvenile Officer”), requesting the detention of Child pursuant to Section 211.031.1(l)(b), which alleges that Child was “in need of care and treatment because [she was] otherwise without proper care, custody or support.” An order of detention was filed placing the child in the care and custody of DFS on that same date. Child was temporarily placed in foster care until suitable placement options could be investigated, and a guardian ad litem (“GAL”) was appointed for her.

On February 13, 2002, Father filed a motion to add him as a party and a motion requesting a protective custody hearing. That hearing was held on February 14, 2002, and Father was brought in as a party. In addition to Father, those present at the protective custody hearing included Mother, maternal grandmother (“Grandmother”), Juvenile Officer, and GAL.

Grandfather also was present at the hearing, and moved to intervene, but his motion was denied until a legal determination as to Child’s paternity was submitted. Father had filed a petition for determination of paternity, custody and child support in Boone County on January 7, 2002, in which he alleged that he “is probably the biological father of Child.” However, at the time of the protective custody hearing, there had been no legal determination in the Boone County action.

Although paternity test results were admitted by GAL, the juvenile court informed Father that he could not be considered for custody of Child until he was legally declared Child’s natural father. As Grandfather’s rights were deemed derivative of Father’s, the court also declined to consider Grandfather for custody of Child.

At the protective custody hearing, the court heard testimony from the parties and Ms. Johns. Ms. Johns testified that there had been ongoing efforts since Child’s birth to get Mother into drug treatment facilities, but all such efforts had failed. She opined that due to Mother’s living arrangements, it was in Child’s best interest for DFS to take protective custody of her. Mother lived with Grandmother; Mother’s sister also lived there, and she also was involved with drug use. In a docket entry filed February 14, 2002, the juvenile court found “that there was a need for continued protective custody and the child could not be returned safely home[,]” due to Mother’s drug problem, which would require inpatient treatment.

[785]*785On a finding that Grandmother was a possible custodian, the court ordered her to submit to drug testing. It also required that she enter into an agreement with DFS “that no other adult relative remain in the household overnight while the child is in [Grandmother’s] custody.” GAL requested a home study for Grandmother, and Juvenile Officer requested that the court order a home study for Father to facilitate placement of Child at the earliest possible time.

On March 6, 2002, another hearing was held “initially for trial setting,” with the same parties present. A date for the adjudicatory hearing was set. Upon evidence presented by Father that he had been legally declared to be Child’s father, the juvenile court formally recognized his paternity and allowed Grandfather to intervene as a party.

Physical custody of Child was transferred to Grandmother, conditioned on the court’s requirement that neither of Grandmother’s daughters was to live in the house with Child. Both parents consented to this transfer of custody. Grandfather filed a motion to dismiss for failure to state a claim, which the court reviewed and overruled. Grandfather then requested a change of judge, and Judge Haslag agreed to disqualify himself.

On March 11, 2002, Juvenile Officer filed the first amended petition. Judge Sheffield was assigned to the case on March 20, 2002. Juvenile Officer filed a motion to modify the court’s previous order that stipulated Mother was not allowed to reside with Grandmother. The court granted the motion, finding it was in Child’s best interest to allow Mother to also reside with Grandmother.

Father and Grandfather filed motions to modify the protective custody order on May 22, 2002. On June 4, 2002, Grandfather filed his first amended motion to modify the protective custody order and requested that Child be placed with Father or alternatively, with Grandfather “for periodic weekends of temporary custody.”

On July 22, 2002, the court held the “adjudication” hearing and took up the motions to dismiss and modify the protective custody order. Grandfather moved for dismissal, asserting that the juvenile court did not have jurisdiction, as the first amended petition did not state specifically what actions by Father constituted abuse or neglect. The juvenile court overruled the motions. Grandfather also submitted a request for findings of fact and conclusions of law.

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Bluebook (online)
120 S.W.3d 782, 2003 Mo. App. LEXIS 1592, 2003 WL 22309603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tn-v-phelps-county-juvenile-office-moctapp-2003.