Opinion
No. ED78271
November 27, 2001
Appeal from the Circuit Court of the City of St. Louis; Honorable Thomas J. Frawley.
Margaret B. Wilson, Melvin L. Raymond, Modupeola B. Oji, for Appellant.
Richard J. Childress, Bruce C. Antrim, for Respondent.
Nancy M. Schaefer, Guardian Ad Litem.
Before DRAPER III, P.J., RUSSELL, J., AND HOFF, J.
D.H.W., a six year old female, was taken into emergency protective custody by the Division of Family Services (hereinafter, "DFS") after an incident in which she required medical attention for being hit with a shoe. Subsequently, the circuit court, juvenile division, entered several orders and judgments regarding the welfare and placement of D.H.W. The trial court transferred custody of D.H.W. from her natural mother (hereinafter, "Mother") to her paternal grandmother. Mother appeals the findings and judgment of jurisdiction of the juvenile court in its order dated April 27, 2000 claiming that the trial court based its findings on unreliable evidence and that the judgment failed to comply with Section 211.183 RSMo (2000). The juvenile court's judgment is reversed and the cause is remanded for findings consistent with this opinion.
All further statutory references herein are to RSMo (2000) unless otherwise noted.
On December 17, 1999, Mother was required to work for several hours in the evening. Mother did not secure appropriate child care for D.H.W. nor take the child with her to work. Rather, when Mother left for work, the child remained alone in the residential home. When Mother returned from work, D.H.W. was not in the house. Mother called her mother's home looking for information on D.H.W.'s whereabouts. Mother's older daughter answered the phone and began yelling at Mother for leaving D.H.W. at home alone. D.H.W. was at her maternal grandmother's house.
Mother drove to her mother's, picked up D.H.W., and drove to a gasoline station. Mother's older daughter followed Mother to the service station. Mother began pumping gas and yelling at D.H.W. for trusting and leaving their home to go with her sister. Mother took off her right shoe claiming to emphasize the importance of what she was saying. While Mother had her shoe in her hand, she struck D.H.W. Mother then noticed her older daughter and they continued arguing. Mother paid for her gasoline and drove home. The older daughter called 911, reporting that Mother hit D.H.W.
Police responded to Mother's residence. The police asked Mother to step out of her car, they handcuffed her, and placed her in the back of the police car. D.H.W. was taken out of the car by one of the officers on the scene. D.H.W. was shaking and began to vomit. She had blood on her right ear and stated that Mother had hit her with a shoe. D.H.W. was taken for medical treatment, and Mother was arrested for child abuse.
D.H.W. was taken by ambulance to Children's Hospital and examined by a doctor. The doctor reported that he found a small puncture wound to an area of the right scalp above the ear with some bleeding. The doctor also stated that he found fresh bruises and circular marks which were most likely cigarette burns. There were several other marks not suggestive of abuse. During the exam, the doctor asked D.H.W. what occurred. The doctor stated that D.H.W. told him that Mother hit her with a shoe and punched her. The doctor testified that D.H.W.'s injuries were consistent with her statement, and he concluded that his findings were consistent with a history of child abuse. D.H.W. was treated and released into the custody of DFS and placed with her paternal grandmother.
D.H.W. was taken into protective custody on an emergency basis on March 17, 2000. At that time, the parties were advised of a trial setting on April 12, 2000. Trial was held on April 12, 2000, and the corrected findings and judgment of jurisdiction of the juvenile court were filed April 27, 2000. The trial court then conducted a dispositional hearing on May 17, 2000, but did not file the Order and Judgment of Disposition until May 22, 2000. Mother appeals.
Mother raises two points of error on appeal. In her first point, Mother alleges that the trial court erred in its judgment in finding that "the injuries sustained by the juvenile were neither accidental, nor self-inflicted, but were the result of physical abuse and that the juvenile would be at risk of further harm or neglect if returned to the custody of Mother" because the finding was based upon the unreliable testimony of a physician and that there was reliable evidence showing that the injury sustained was not the result of abuse. We disagree.
Attorneys are reminded when drafting their points relied on to review the dictates of Thummel v. King, 570 S.W.2d 679, 685 (Mo.banc 1978) and Rule 84.04(d).
Mother contends that the trial court disregarded the reliable evidence presented by D.H.W.'s maternal grandmother. The maternal grandmother, a registered nurse, testified that the circular marks on D.H.W.'s body were the result of mosquito bites. In addition to this testimony, the trial court heard testimony from the doctor who examined D.H.W. following "the shoe incident." He found definite indications that D.H.W. was being abused and that the circular marks all over her body were the result of cigarette burns.
We defer to the trial court's determination of witness credibility and its ability to choose between conflicting evidence. In re C.N.W., 26 S.W.3d 386, 394 (Mo.App.E.D. 2000). "The trial court is free to accept or reject all, part, or none of the testimony of a witness." McGowan v. McGowan, 43 S.W.3d 857, 861 (Mo.App.E.D. 2001). The facts viewed in the light most favorable to the judgment support the trial court's determination that the circular marks on D.H.W.'s body were cigarette burns and not mosquito bites. Point denied.
In her second point on appeal, Mother claims the trial court erred in finding that DFS engaged in reasonable efforts to prevent the removal of the juvenile from the custody of Mother in that there was no testimony or evidence on record to support such a finding. Mother argues that the trial court failed to make the necessary findings of reasonable efforts as required by Section 211.183. We agree.
When a child is removed from the home, "the court's order shall include a determination of whether [DFS] has made reasonable efforts to prevent or eliminate the need for removal of the child and, after removal, to make it possible for the child to return home." Section 211.183.1. If a child is taken from the home during an emergency situation wherein it is not safe for that child to remain in the home, reasonable efforts shall be deemed to have been made. Id. DFS engages in reasonable efforts by utilizing its available services to meet the needs of the child and the family. Section 211.183.2. "In determining reasonable efforts to be made and in making such reasonable efforts, the child's present and ongoing health and safety shall be the paramount consideration." Id. Once the court makes its determination as to whether reasonable efforts have been made, the court "shall enter findings, including a brief description of what preventive or reunification efforts were made and why further efforts could or could not have prevented or shortened the separation of the family." Section 211.183.3.
On March 17, 2000, D.H.W. was taken from her home on an emergency basis. At that time, she could not safely remain at the home even with in-home services and hence DFS was deemed to have made reasonable efforts. However, at the time of trial and the completion of the dispositional order, there was no emergency. The trial court found that DFS had made reasonable efforts, but it did not enter any findings as to what efforts were made. Since the trial court failed to specifically enter what reasonable efforts were being made, the trial court did not meet the mandates set forth in Section 211.183.
The record on appeal contains evidence that Mother and DFS have entered into parenting plans and that Mother is meeting some of those goals.
The judgment of the juvenile court is reversed and the cause is remanded for additional evidence if necessary to allow the court to make specific findings of fact as required by statute, and to enter a new judgment consistent with the evidence. D.H.W. shall remain in the temporary legal custody of DFS and physical custody of paternal grandmother pending the outcome of the juvenile court's determination on remand.
GEORGE W. DRAPER III, Judge Mary R. Russell, Judge and Mary K. Hoff, Judge concur.