Juvenile Law

Shawn R. McCarver, Esquire

Where juvenile is charged with burglary, the presence of valuables in the building alone does not constitute sufficient evidence of intent to steal. In Interest of J.N.C.B., No. 75299 (Mo. App. W.D., June 28, 2013), Witt, J.

Police responded to an alarm at the middle school. Upon entering the building, officers heard laughter, noise and a “ruckus” coming from the southeast side of the building. As the officers approached, the juveniles looked like they were going to exit out the east door. The juvenile was adjudicated guilty of burglary in the second degree. The juvenile does not dispute the fact that the evidence showed that he entered unlawfully or remained unlawfully in the building. Instead, the juvenile contends that there was insufficient evidence that the juvenile was in the building for the purpose of stealing. The only evidence of intent to steal was that valuables were present in the building. There was no evidence of forced entry, the juveniles were making no effort to be quiet, there was no evidence that anything was damaged or missing and when the police saw the juveniles, they looked like they were going to exit the building. There was no evidence of attempted flight. Because the building had not been used for an extended period of time, there was no reason for an intruder to anticipate the presence of valuables. Although there were valuables in the building, standing alone, the mere presence of valuables in a building, with no other indicia of intent to steal, is insufficient to establish the intent element beyond a reasonable doubt. The ability to find intent to steal from unlawful entry combined with the presence of valuable items is a permissible inference, not a mandatory presumption.

Held: Reversed.

Trial court had no authority to assume jurisdiction over children where petition alleged sexual abuse and medical neglect. The sexual abuse and medical neglect were not proven and the court assumed jurisdiction because parents had a “toxic relationship.” Adjudication on grounds not pleaded violates Rule 124.06 as well as fundamental principles of due process. Appellate court did not reach issue of recusal of trial judge, denied without hearing, but noted the ruling was “strongly influenced” by judge’s prior knowledge of and dealings with the family. The court stated that the trial court may not disregard constitutional restrictions imposed by statute or due process. In Interest of Y.S.W. and R.C.W., No. 98899 (Mo. App. E.D., June 28, 2013), Odenwald, J.

The juvenile officer filed petitions alleging sexual abuse by father and certain medical neglect. Those allegations were not substantiated. Nevertheless, the juvenile court assumed jurisdiction because of the “toxic relationship” of the parents. The children were placed in foster care. Mother appeals. Rule 124.06 provides that the court shall enter a judgment denying the petition if the allegations are neither admitted nor approved. Because the allegations were not supported by clear and convincing evidence, the juvenile court was divested of any authority to make an adjudication relating to the children. This result is also supported by fundamental principles of due process. Due process mandates that parents in juvenile court cases facing allegations of abuse or neglect are entitled to notice of the specific allegations against them and the opportunity to defend against those charges. The judgment entered in this case deprived mother of both notice and the opportunity to present a defense. The judgment is reversed. The appellate court did not reach the issue of whether the trial court should have recused. The court, however, noted that the record suggested that the ruling was “strongly influenced” by the court’s prior knowledge and dealings with the family. The appellate court stated that courts “may not disregard constitutional restrictions” imposed by statute or due process.

Consent to adoption is not required for all adoptees, age 14 and older, who are without sufficient mental capacity to consent to the adoption. In such cases, the trial court should consider the fitness and propriety of the adoption. Matter of DeBrodie, No. 75853 (Mo. App. W.D., June 18, 2013), Hardwick, J.

In 1999, adoptive petitioner Mary was appointed legal guardian of child (“Carl”), who was then 13 years old. Carl was a special needs child. Mary served as guardian until Carl became 18 years of age. Thereafter, Carl became a ward of the public administrator because Carl was adjudged to be an incapacitated and disabled adult.

In August 2011 when Carl was 25 years old, Mary and her husband Bryan filed a petition to adopt Carl. The petition alleged that Mary and Bryan had continued to provide care and support for Carl and that they had developed a “close familial relationship.” Mary and Bryan acknowledged that Carl was presumed to be incompetent to give consent. They asserted, however, that if the court were to determine that Carl was competent to give consent, Carl would consent to adoption by Mary and Bryan. Alternatively, petitioners alleged that if Carl was incompetent to consent, neither his consent nor that of the guardian would be necessary for the court to grant the adult adoption. Guardian filed an objection. After an investigation, the guardian ad litem recommended that the court grant the adult adoption petition.

After trial, the court denied the adoption petition. The court found that because Carl was an adult, his consent was required. The court further found that Carl was legally incapacitated and could not give his own consent. The court also found that there was no credible evidence to support a finding that Carl understood the legal significance of a decision to consent to adoption. The trial court noted that the probate court had not authorized the guardian to consent and that the guardian had declined to seek permission of the probate court to obtain authority to give consent. Because there was no consent, the trial court declined to consider the fitness and propriety of the proposed adult adoption. Petitioners appealed.

Section 453.030.2 provides that “the written consent of the person to be adopted shall be required in all cases where the person sought to be adopted is fourteen years of age or older, except where the court finds that such child has not sufficient mental capacity to give the same.” The court first holds that the definition of the term “child” set forth in § 453.015(1) is the controlling definition because “child” as used in 453.090 applies, by its own terms, to § 453.090. “Child” is, for purposes of this case, therefore, any person who has not attained the age of 18 years, or any person in the custody of the division of family services who has not attained the age of 21. Petitioners contend that the second clause of the definition provides that consent is waived from all mentally incapacitated adoptees who are 14 years of age or older. Guardian, on the other hand, argues that the consent exception is waived only for mentally incapacitated persons between the ages of 14 through and including 17. Therefore, guardian contends that this section requires the consent of all adults, even those who are mentally incapacitated. This interpretation would essentially disqualify from adoption any incapacitated adult who is presumed incompetent and who the court found to be incapable of consenting. Rather than argue for such a result, guardian requests that the court interpret the statute to require consent of the adult adoptee, and if the adoptee is incapable of giving consent, guardian then argues that the consent of a guardian should be required. There is no language in the statute substituting the consent of a guardian in place of the consent of a mentally incapacitated adult. Since the statute does not settle the dispute, the court must construe the statutes to resolve the ambiguity.

After consideration of a number of factors, the court finds that the exception to the consent requirement applies to all mentally incapacitated persons age 14 and older whom the court has found to be unable to give consent. Therefore, the trial court should have considered the fitness and propriety of the proposed adoption.

Held: Reversed and remanded.