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Section 7.1		Generally
Section 7.2		Abuse - Generally
Section 7.3		Physical Abuse - Section 210.110(1), RSMo
Section 7.4		Sexual Abuse - Section 210.110(1), RSMo
Section 7.5		Emotional Abuse - Section 210.110(1), RSMo
Section 7.6		Neglect - Section 210.110(8), RSMo
Section 7.7		Timing of Neglect
Section 7.8		Factual Examples of Neglect
Section 7.9		Status Offenses - Generally
Section 7.10		Truancy - Section 211.031.1(2)(a), RSMo
Section 7.11		Incorrigible - Section 211.031.1(2)(b), RSMo
Section 7.12		Runaway - Section 211.031.1(20(c), RSMo
Section 7.13		Behavior/Associations Injurious - Section 211.031.1(2)(d), RSMo
Section 7.14		Offenses Applicable Only to Children - Section 211.031.1(2)(e), RSMo
Section 7.15		Delinquency - Section 211.031.1(3), RSMo
Section 7.16		Adoption and Safe Families Act

Section 7.1 Generally

Because certain juvenile court rules apply to all proceedings while certain rules apply only to abuse/neglect proceedings and still others apply only to status/delinquency proceedings, it is necessary that the trial judge be familiar with the types of cases which may be heard in the juvenile court and the specific required elements which must be proven in each type of case. Elements of the various grounds for termination of parental rights are discussed infra. The three major types of cases are: (1) abuse/neglect, (2) status offenses and (3) delinquency.

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Section 7.2 Abuse - Generally

Missouri law recognizes three types of abuse:

1. Physical abuse,

2. Sexual abuse, and

3. Emotional abuse.

 Abuse generally (although not always) involves an overt act as distinguished from neglect, which usually is thought of as a deprivation.

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Section 7.3 Physical Abuse - Section 210.110(1), RSMo

The elements of a physical abuse case are as follows:

 1. Physical injury.

2. Inflicted on a child.

3. Other than by accidental means.

4. By those responsible for the child's care, custody and control.

Note: Discipline including spanking, administered in a reasonable manner, shall not be construed to be abuse. Section 210.110(1), RSMo.

 Evidence that a child suffers from injury while in the care, custody and control of the parent is sufficient to establish jurisdiction even though there is no evidence that the parent or caretaker was responsible or that the injury occurred intentionally. In Interest of E.J., 741 S.W.2d 892 (Mo. App. E.D. 1987).

Prior abuse of another child in the family is prima facie evidence of imminent danger to a sibling so as to justify court intervention and removal of the child. In Interest of D.D.H., 875 S.W.2d 184 (Mo. App. S.D. 1994). See also In Interest of W.J.D., 756 S.W.2d 191 (Mo. App. S.D. 1988) and In re M R F, 907 S.W.2d 787 (Mo. App. S.D. 1995).

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Section 7.4 Sexual Abuse - Section 210.110(1), RSMo

The elements of sexual abuse are as follows:

1. Sexual abuse.

2. Inflicted on a child.

3. Other than by accidental means.

4. By those responsible for the child's care, custody and control.

It is sufficient to allege sexual abuse of one child and danger of harm to other children and an express finding as to the specific act of sexual abuse or particular date is not necessarily required. In Interest of W.J.D., 756 S.W.2d 191 (Mo. App. S.D. 1988); see also In re M R F, 907 S.W.2d 787 (Mo. App. S.D. 1995). Hearsay declarations are admissible. Id. A juvenile court petition states a cause of action, and is sufficient to support exercise of jurisdiction over a child where the child is subjected to unsupervised contact with an individual, especially a parent, who has been convicted of sexually abusing another minor child, because the court is not required to wait for the child to be abused before the court intervenes. In Interest of M.A.T., 934 S.W.2d 2 (Mo. App. W.D. 1996). Evidence that mother refused to take the children to the doctor, that mother put her tongue in the child's mouth while kissing him, that child touched mother between her legs, that mother exposed herself to the children, that children touched their genitals inappropriately, that children played with dolls in a sexual manner, and that children stated to various adults that mother and her paramour had fondled them and performed oral sex on them constitutes sufficient evidence to support a judgment on the petition. In Interest of T.B., 963 S.W.2d 252 (Mo. App. W.D. 1997).

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Section 7.5 Emotional Abuse - Section 210.110(1), RSMo

The elements of emotional abuse are as follows:

 1. Emotional abuse.

2. Inflicted on a child.

3. Other than by accidental means.

4. By those responsible for the child's care, custody and control.

 Emotional abuse generally occurs over a period of time and is not necessarily linked to a single act. A juvenile court, however, is not required to stand idly by in the face of a situation recognized as potentially harmful and await a child's emotional destruction before attempting to protect the child from an injurious and harmful environment which is potentially destructive of a child's emotional health. L. v. Jackson County Juvenile Officer, 544 S.W.2d 330 (Mo. App. 1976).

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Section 7.6 Neglect - Section 210.110(8), RSMo

The elements of neglect are as follows:

1. Failure to provide.

2. By those responsible for the child's care, custody and control.

3. Proper or necessary support, education as required by law, nutrition or medical, surgical or any other care necessary for the child's well-being. Section 210.110(12), RSMo.

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Section 7.7 Timing of Neglect

Neglect that is alleged to have occurred one to two years prior to the petition was not too remote to constitute neglect of a present need where the evidence indicated a child needed supervised medical care because of neglectful conduct by his parents. In Interest of R.G., 885 S.W.2d 757 (Mo. App. E.D. 1994).

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Section 7.8 Factual Examples of Neglect

The following have been found to be neglectful justifying assumption of jurisdiction:

• In Interest of S.E.S., 845 S.W.2d 140 (Mo. App. W.D. 1993) (father told daughter she could not return home until willing to abide by house rules and did not give her financial support)

• In Interest of L.J.M.S., 844 S.W.2d 86 (Mo. App. E.D. 1992) (mother attempts removal of child from hospital where child needs psychiatric treatment and in imminent danger of committing suicide)

• In Interest of M.D.S., 837 S.W.2d 338 (Mo. App. W.D. 1992) (permitting children to watch television recreation of sexually inappropriate acts, parent encouraging one daughter to have direct sexual contact with father)

• S.H. v. O.M.H., 796 S.W.2d 71 (Mo. App. E.D. 1990) (parents did not work, possessed no substantial income, moved frequently, children split up between mother and father occasionally, custody of children shifted from mother to putative father from time to time)

• M.A. v. J.A., 781 S.W.2d 94 (Mo. App. E.D. 1989) (weekly placement of child in metal dog cage for two hours as punishment)

• In Interest of K.H., 652 S.W.2d 166 (Mo. App. E.D. 1983) (finding of dangerous environment not required to exercise jurisdiction)

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Section 7.9 Status Offenses - Generally

Missouri Law defines five status offenses. Section 211.031.1(2) (a)-(e), RSMo. Shorthand names for these five status offenses are as follows:

1. Truancy

2. Incorrigible

3. Runaway

4. Behavior/associations injurious

5. Offense applicable only to children

 The term "child" as defined in Chapter 211, RSMo means a person younger than 17 years of age. Section 211.021(2), RSMo.

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Section 7.10 Truancy - Section 211.031.1(2)(a), RSMo

The elements of truancy are as follows:

 1. Child

2. While subject to compulsory school attendance

3. Repeatedly and

4. Without justification

5. Absent from school.

 Note: Compulsory school attendance is governed by Section 167.031, RSMo and basically provides that any parent, guardian or person having charge, control or custody of a child between the ages of seven and 16 years is responsible for enrolling the child in school. It should be noted that this section provides that if the parent should enroll a child as early as the age of five, non-attendance of the child constitutes a violation of the provisions of Section 167.061, RSMo except as provided in Section 167.031, RSMo. Thus, a parent having a child between seven and 16 years shall cause the child to attend regularly a public, private, parochial, parish, home school or a combination of such schools not less than the entire school term of the school which the child attends. Section 167.031.1, RSMo. A child may be enrolled as early as age five, and if the child is enrolled prior to reaching seven years of age, the child is subject to the compulsory school attendance law. Once enrolled, children may not be subject to the compulsory attendance law if they fall within the exceptions listed in Section 167.031.1(1), (2) or (3), RSMo. Those exceptions essentially are for mentally or physically incapacitated children, children between 14 and 16 years of age when legal employment has been obtained and the child is excused by the superintendent after having advised the parents or guardians, and where a child between five and seven years of age has been dropped from the school's rolls as a result of a written request by the parent, guardian or person having charge, control or custody of the child.

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Section 7.11 Incorrigible - Section 211.031.1(2)(b), RSMo

The elements of incorrigibility are as follows:

1. Child

2. Disobeys reasonable and lawful directions

3. Of his parents or other custodian

4. And is beyond their control.

Note: The term "parent" means either a natural parent or a parent by adoption, and if the child is illegitimate, the term "parent" means the mother. Section 211.021(5), RSMo. The term "parent" as defined in the Supreme Court Rules applicable to procedure in juvenile courts under Chapter 211, RSMo adds the phrase "whose parental rights have not been terminated" to the definition of the term "parent." Cf. Supreme Court Rule 110.04(a)(19). See also definition of the term "custodian" in Supreme Court Rule 110.04(a) (5), and also the definition of the term “guardian” in Supreme Court Rule 110.04(a)(9).

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Section 7.12 Runaway - Section 211.031.1(2)(c), RSMo

The elements of a runaway are as follows:

 

1. Child

2. Is habitually absent from his home

3. Without sufficient cause, permission or justification.

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Section 7.13 Behavior/Associations Injurious - Section 211.031.1(2)(d), RSMo

The elements of this status offense are as follows:

 1. Behavior or associations

2. Of the child

3. Are otherwise injurious to his welfare or to the welfare of others

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Section 7.14 Offenses Applicible Only to Children - Section 211.031.1(2)(e), RSMo

The elements of this status offense are as follows:

 1. Child

2. Is charged with an offense not classified as criminal

3. Or with offense applicable only to children.

 Exception: The juvenile court shall not have jurisdiction over any child who has attained fifteen and one-half years of age who is charged with the violation of a non-felony state or municipal traffic ordinance or regulation, and shall have concurrent jurisdiction with the municipal court over any child who is alleged to have violated a municipal curfew ordinance, and shall have concurrent jurisdiction with the circuit court over any child who is alleged to have violated a state or municipal ordinance or regulation prohibiting possession or use of any tobacco product.

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Section 7.15 Delinquency - Section 211.031.1(3), RSMo

Delinquency is the commission of an act by a child that would constitute a violation of state law or municipal ordinance if the child were an adult. To prove the child has committed a crime, the juvenile officer must prove the same elements to the same standard of proof as the state would be required to do if an adult were charged with the same offense.

 The juvenile court shall not have jurisdiction over any child who has attained the age of 15½ years of age who is alleged to have committed a non-felony violation of a state or municipal traffic ordinance or regulation. Section 211.031.1(2)(e), RSMo. See also Op. Atty. Gen. No. 164-92, Baird, Dec. 31, 1992.

The juvenile court does not have jurisdiction over a child who has attained the age of fifteen and one-half years who is alleged to have committed a non-felony violation of a state or municipal traffic ordinance or regulation. However, prior to 1989, even though said juveniles were dealt with in adult court, the adult court did not have jail as an option because Section 211.151.2, RSMo and Supreme Court Rule 110.04(7) each prohibit placement of a child/juvenile in a jail or other adult detention facility. In 1989, the legislature enacted Section 211.033, RSMo, which permits a "traffic court judge" to request the juvenile court to order the commitment of a person under the age of seventeen years to a juvenile detention facility. The term "traffic court judge" is not defined in the juvenile code, but see Section 479.500, RSMo. Further, the legislature has granted concurrent jurisdiction with municipal court over alleged violations of municipal curfew ordinances. Section 211.031.1(3) RSMo. Concurrent jurisdiction with the circuit court has also been granted to the juvenile court related to possession or use of tobacco products. This provision provides that the juvenile court shall have concurrent jurisdiction over "any child" who is alleged to have violated a state or municipal ordinance or regulation prohibiting possession or use of any tobacco product.

 Law enforcement officials may fingerprint and photograph a 16 year old charged with a first offense of driving while intoxicated under Section 577.010, RSMo or an equivalent municipal ordinance, without authorization to do so by the juvenile judge, since the offense of driving while intoxicated, first offense, is not a felony and is not within the jurisdiction of the juvenile court. Op. Atty. Gen. No. 53-88, Stevenson, July 27, 1988. Note: This opinion was rendered before the statute was changed to allow permits to be granted at 15 years of age and the result is probably the same for a 15½ year old. See also Op.Atty. Gen. No. 164-92, Webster, December 31, 1992.

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Section 7.16 Adoption and Safe Families Act

The Adoption and Safe Families Act of 1997 (ASFA), P.L. 105-89, and the regulations implemented thereunder by the U.S. Department of Health and Human Services, Administration for Children and Families, requires certain judicial actions, determinations and corresponding findings in the court's orders. This is so children in alternative care may be and remain eligible for federal funding. The actions and findings are as follows:

1. In the first order of removal (even if temporary, and whether emergency or not), the court must make a finding that continuation of the child in the home is contrary to the welfare of the child. Supreme Court Rule 123.04.

	a. This is required to insure eligibility for federal funding and applies even in status or delinquency cases where a child may end up in foster care. Thus, the best practice is to make this finding in all orders where a child is removed from home and placed in alternative care.
	b. This should be made in the first order of removal, which may not always be the first order in the case, if removal takes place at a later date for some reason.
	c. Affidavits of efforts or other documents submitted by Children’s Division or others do not take the place of a judicial determination. The judicial determination may, however, be based upon affidavits of efforts, court reports, facts set forth in requests for custody or emergency or temporary custody authorizations or any other related, timely and relevant documents. The order should cross- reference any documents used to support the judicial determination.
	d. “Reasonable efforts” refer to the exercise of reasonable diligence and care by personnel of the Children’s Division to utilize all available services in order to meet the needs of the juvenile and family. Section 211.183.2, RSMo.
	e. The reasonable efforts finding in the order may be done in the form of a checklist so long as it is clear that the finding was made on a case-by-case basis based upon an individual review of each child's specific circumstances.

2. Within 60 days of actual removal, the court must make a finding that reasonable efforts have been made to prevent or eliminate the need for the child's removal from the home and to prevent placement in alternative care. See also Section 211.183, RSMo ("initial reasonable efforts findings"). This finding must be made within 60 days even if the hearing on the pleadings is continued beyond the 60 day deadline. See Supreme Court Rule 124.04(g) and Comment that follows.

	a. Affidavits of efforts or other documents submitted by Children’s Division or others do not take the place of a judicial determination. The judicial determination may, however, be based upon a sustained petition or pleading, affidavits of efforts, court reports, facts set forth in requests for custody or emergency or temporary custody authorizations or any other related, timely and relevant  documents. The order should cross- reference any documents used to support the judicial determination.
	b. The finding in the order may be done in the form of a checklist so long as it is clear that the finding was made on a case-by-case basis based upon an individual review of each child's specific circumstances.

3. Within 12 months of removal (presumably at the permanency hearing), the court must make a finding that reasonable efforts have been made to finalize the permanency plan. This finding must be made every 12 months thereafter ("permanency reasonable efforts findings"). See Supreme Court Rule 124.09.b(5).

	a. Prior to the permanency hearing (to be held not later than 12 months after foster care placement), the court should take steps to insure at interim review hearings that Children’s Division is making reasonable efforts to reunify the family (if that is the permanency plan). See Supreme Court Rule 124.08.
	b. Affidavits of efforts or other documents submitted by Children’s Division or others do not take the place of a judicial determination. The judicial determination may, however, be based upon a sustained petition or pleading, affidavits of efforts, court reports, facts set forth in requests for custody or emergency or temporary custody authorizations or any other related, timely and relevant documents. The order should cross- reference any documents used to support the judicial determination.
	c. The finding in the order may be done in the form of a checklist so long as it is clear that the finding was made on a case by case basis based upon an individual review of each child's specific circumstances.

4. Children’s Division may be excused from making reasonable efforts where there are certain aggravated circumstances. See Section 211.183, RSMo. Generally, those circumstances are: (1) severe or recurrent acts of physical, emotional or sexual abuse or incest; (2) serious crimes committed upon the child or another child in the family; or (3) the parent's rights to a sibling have been involuntarily terminated.

	a. The existence of these aggravated circumstances is established by a determination by a court of "competent jurisdiction." Section 211.183.7, RSMo.
	b. If the court determines Children’s Division need not make reasonable efforts, a permanency hearing must be held within 30 days to finalize a permanency plan. See Section 211.183.8, RSMo.

 

5. ASFA and Missouri law (Section 211.447.2, RSMo) mandate the filing of a Termination of Parental Rights petition in cases where: (1) the child has been in foster care for 15 out of the most recent 22 months; (2) an "infant" is determined by a court of competent jurisdiction to be abandoned; or (3) where a court of competent jurisdiction has determined that a parent has committed certain crimes. See Section 211.447.2, RSMo.

a. The mandatory filing of the Termination of Parental Rights petition as described in the preceding paragraph becomes optional where (1) the child is being cared for by a relative; (2) a "compelling reason" exists not to file a TPR petition; or (3) the family has not been provided "reasonable efforts." Section 211.447.4, RSMo.

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