In the Interest of N.H.
In the Interest of N.H.
Opinion of the Court
Rhondalynn Harris (Mother) appeals from the trial court’s judgment of disposition placing Mother’s minor son, N.H., in the custody of the Missouri Department of Social Services, Children’s Division, (Division) after finding, in relevant part, that N.H. had missed 55 out of 99 days of school during the 2003-04 school year, as well as almost half of the days of school during the 2002-03 school year. We affirm the judgment with modification.
In February 2004, the Division filed a petition seeking the care and custody of N.H. due to educational neglect under Section 211.031.1 RSMo 2000.
Prior to hearing testimony at the dispo-sitional hearing, both the DJO and N.H.’s
During the dispositional hearing, the trial court remarked it would “not make a finding of no reasonable efforts since there may be a mental health issue, ... [a]nd maybe the mental health issue will convince me that reunification is appropriate,” and required the Division “to engage in reasonable efforts to reunify [N.H.] with Mother.”
The-trial court’s judgment of disposition placed legal custody of N.H. with the Division and, in part, specifically required the Division “to. engage in reasonable efforts to reunify [N.H.] with Mother.” The judgment of disposition also, however, stated in the attached Exhibit 1 that, “[i]n the opinion of the Court, pursuant to Section 211.183.7 RSMo., reasonable efforts by the ... Division for Motherfs reunification with N.H.] are not required because: ... Mother has subjected [N.H.] to a severe act or recurrent acts of emotional abuse.”
In her sole point, Mother urges the finding of the trial court that reasonable efforts by the Division to reunify N.H. and Mother are not required because Mother has subjected N.H. to a severe act or recurrent acts of emotional abuse was not supported by substantial evidence and was against the weight of the evidence.
We review the judgment in this educational neglect proceeding under the standard for court-tried civil cases, In Interest of J.B., 58 S.W.3d 575, 578 (Mo.App. E.D. 2001). Therefore, we affirm the judgment “unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. We also “defer to the trial court on issues of fact and the credibility of witnesses.” Id. Additionally, “[i]n reviewing the sufficiency of the evidence, we consider the evidence and all reasonable inferences which might be drawn ther.efrom in the light most favorable to the trial court’s judgment.” Id.
Section 211.183, pursuant to which the trial court made its challenged finding, provides that
[t]he division shall not be required to make reasonable efforts [to make it possible for the child to return home] but has the discretion to make [such] reasonable efforts if a court of competent jurisdiction has determined that ... [t]he parent has subjected the child to a severe act or recurrent acts of ... emotional ... abuse toward the child....
Section 211.183.7(1). While the statutorily required “emotional abuse” is not statutorily defined, and we have not been directed to or found a Missouri case addressing “a severe act or recurrent acts of ... emotional ... abuse” for purposes of Section 211.183.7(1), we are not persuaded that
Respondent DJO argues testimony presented at the dispositional hearing that N.H. was seeing a therapist, had seen a doctor, had “psychological issues,” and had poor hygiene when the Division worker first saw him “could well have led the trial court to the conclusion that there had been a severe act or recurrent acts of emotional abuse.” Such testimony is not sufficient under the circumstances of the case because none of that testimony in any way linked or associated those circumstances to emotional abuse of N.H. by Mother or to emotional abuse of N.H. arising out of his undisputed absence from school.
Respondent also contends our decision in In Interest of A.H., 45 S.W.3d 899 (Mo.App. 2001), supports the challenged finding of the trial court here. In that case, we found there was competent and substantial evidence to support the trial court’s determination that the minor child had been subjected to a severe act of physical abuse and, therefore, reasonable efforts at reunification were not required. Id. at 901. The trial court’s finding was based on the minor child’s medical records, which indicated that: the child had been “dropped approximately four feet onto a concrete ground” by the child’s mother’s boyfriend while in mother’s custody, resulting in a fractured left femur; the child “had other bruises in various degrees of healing”; and the child had “required medical attention at [a hospital] after falling down a flight of stairs” approximately one year earlier. Id. The minor child’s mother did not testify or present evidence at the dispositional hearing. Id. We find the case factually distinguishable because the basis of the severe abuse was physical and medical records were available to establish that physical abuse, whereas in the present case there is no evidence available establishing N.H. was the victim of emotional abuse, much less severe or recurrent acts of such abuse.
Without more, there is no evidentiary support for the trial court’s challenged determination. Mother’s contention that the challenged finding is not supported by substantial evidence and is against the weight of the evidence is well-taken.
Moreover, the trial court’s judgment of disposition was inconsistent. At
A judgment that is inconsistent or contradictory on a material matter, or that is based on conclusions at variance with the facts, cannot stand. Barrett v. Barrett, 963 S.W.2d 454, 457 (Mo.App. E.D. 1998). While such judgments may be reversed and remanded, we are authorized by Rule 84.14 to “dispense with the remand process” and render a judgment the trial court should have rendered. Norber v. Marcotte, 134 S.W.3d 651, 662 (Mo.App. E.D. 2004). Pursuant to Rule 84.14, we may modify a challenged judgment by deleting portions of it. See Hileman v. Hileman, 909 S.W.2d 675, 680 (Mo.App. E.D. 1995); State Div. of Family Servs. v. A.J., 872 S.W.2d 594, 598 (Mo.App. E.D. 1994); Meiners v. Meiners, 858 S.W.2d 788, 791 (Mo.App. E.D. 1993).
We accordingly modify the judgment of disposition only by deleting the finding in Exhibit 1 of the judgment of disposition stating that “[i]n the opinion of the Court, pursuant to Section 211.183.7 RSMo., reasonable efforts by the ... Division for Mother[’s reunification with N.H.] are not required because: ... Mother has subjected [N.H.] to a severe act or recurrent acts of emotional abuse.” As so modified, the judgment of the trial court is affirmed.
. In relevant part this statute provides that the family court has exclusive original jurisdiction in proceedings "DQnvolving any child who may be a resident of or found within the county and who is alleged to be in need of care and treatment because ... [t]he child while subject to compulsory school attendance is repeatedly and without justification absent from school.” Section 211.031.l(2)(a) RSMo 2000. All subsequent statutory citations are to RSMo 2000, unless otherwise noted.
Reference
- Cited By
- 6 cases
- Status
- Published