Young v. Pitts

MARK D. PFEIFFER, Judge,

dissenting.

I respectfully dissent.

While the majority opinion correctly announces the standard of review dictated by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), it fails to correctly apply that standard of review to the only part of the motion court’s judgment that matters — the section 452.375.6 findings in support of the motion court’s custodial modification ruling. The majority opinion details other evidence “referenced” by the motion court in the motion court’s description of the evidence,1 but notably, the motion court *62expressly chose not to “find” that this itemized evidence was credible enough to warrant an express “finding” of “substantiated” abuse. Instead, the “finding” of the motion court is simply that there was an “allegation” of abuse that was “substantiated by the Children’s Division”2 (and, in hindsight, we now know that such “allegation” has since been deemed to be “unsubstantiated” by the Children’s Division). Consequently, Mother is penalized by the motion court for choosing not to believe the “substantiated” allegation of abuse that was later, coincidentally, determined to be “unsubstantiated” — or, stated another away — allegations that were not credible or believable.

While the majority opinion attempts to characterize or summarize the motion court’s “findings,” noticeably absent from the majority opinion is the “finding” that the motion court has enumerated as the basis for a change of circumstances to warrant custody modification,3 to-wit:

The Court finds that [Mother] has not taken the necessary and required steps to protect [Daughter]. According to her own testimony in court, [Mother] has not even inquired of her husband if the allegations of sexual abuse of [Daughter] by Stephen Pitts are true or not.... Therefore, the Court finds that [Mother] has accepted, the denial of her husband and has not protected her child from the alleged sexual abuse that was substantiated by the Children’s Division of Missouri Department of Social Services.4

*63(Emphasis added.) Unquestionably, the “change in circumstance” that was the basis for the motion court’s judgment modifying the custody decree was based upon the report detailing the investigation and conclusions of “substantiated” abuse by the Children’s Division — a report that Mother could not respond to at trial because the motion court erroneously prevented her from seeing it — even though the motion court made the report the cornerstone of the basis for the judgment.

While the majority opinion tacitly admits that it was error for the motion court to withhold the Children’s Division investigative records from Mother {Maj. Op. at 56-57), the majority opinion questions how these relevant and admissible records that the motion court relied upon, but refused to provide to Mother for rebuttal purposes, could possibly cause prejudice to Mother {Maj. Op. at 56-57). Unfortunately, the majority opinion fails to see the obvious answer to its inquiry.

Relevancy and Admissibility of the Investigative Records

Section 210.145.16(2) states:

The court may on its own motion, or shall if requested by a party to the proceeding, make an inquiry not on the record with the children’s division to determine if such a report has been made. If a report has been made, the court may stay the proceeding until the children’s division completes its investigation.

Clearly, then, this statute contemplates a motion court’s reliance upon the results of the investigation by the Children’s Division or there would never be a necessity to stay the proceedings pending such investigation. Clearly, this motion court found that the results of the investigation by the Children’s Division leading to a “substantiated” finding (that was later determined to be “unsubstantiated”) were relevant, because the motion court expressly relied upon the investigative records detailing the basis for why the Children’s Division made a “substantiated” finding of abuse.5

When the motion court told the parties below (albeit off the record, thereby necessitating Mother’s trial counsel to make a record of the motion court’s off-the-record comments) that the motion court intended to rely upon the investigative records in arriving at its determination in this proceeding, the motion court made those records both relevant and admissible. A motion court cannot reasonably suggest that records that it intends to rely upon are not thus relevant to the proceeding (i.e. if the motion court is going to rely upon the *64“why” behind the investigative conclusions of the Children’s Division, Mother should have been entitled to demonstrate “why not”). And, likewise, if the records are going to be reviewed and relied upon by the motion court, it should go without saying that in order for the records to constitute evidence that the motion court can rely upon to support its ruling, they must first be admitted into evidence! Accordingly, the Children’s Division investigative records were both relevant and admissible regarding what we now know to be the judgment of the motion court.

Prejudice

Herein lies the fatal flaw to the logic of the majority opinion on this topic. The majority opinion fails to see the prejudice of the Children’s Division investigative records, because it concludes that the report summarizing the results of the investigation by the Children’s Division was not actually relied upon by the motion court below in arriving at its ruling. The majority states in its opinion: “Contrary to Mother’s argument, the motion court’s findings do not evidence that it relied on anything in the [Children’s Division] investigative records [ (Maj. Op. at 59) ] ... [t]he record does not support the conclusion that the motion court relied upon the [Children’s Division] investigative records in arriving at its decision [ (Maj. Op. at 59) ].... ” And yet, as Mother pointed out in her briefing on appeal, the transcript reflects just the opposite.

Mother’s trial counsel had filed a motion in limine to prohibit any evidence whatsoever from representatives from the Children’s Division or any testimony about the results of any past or ongoing investigations. In particular, Mother’s trial counsel argued as follows at the pre-trial conference:

The additional argument we have in our motion [in limine], Your Honor, is to preclude any evidence from Division of Family Services or the records of Division of Family Services. As this court is aware, the allegation of abuse that pertains to this cause of action, the initial one was January of 2008, which was returned unsubstantiated as to my client and her husband, and then a subsequent allegation of May 19th, 2008, which was returned unsubstantiated to my client and substantiated as to her spouse.6 And I believe in presenting this evidence to the Court, the Court has now had an opportunity to have the documents in camera, we had requested the records through DFS, we had requested the information through subpoenaed testimony, and that was denied, as well. We have had a motion to compel hearing, and that was denied. We filed a motion that they be produced in camera, and the Court did grant that, and we have made requests by oral and written motion to this court to allow us to review those documents that are being held in camera in preparation for this trial and have not been allowed that opportunity. I believe this creates a great injustice to my client.
I would ask the Court to review our motion and the items that we set forth in that motion, and in particular would state that in order to present evidence *65to this court, it is mandatory that we have an opportunity to know what the allegations are and what the investigation has been so that we may either further bolster that information or refute that information, and the Court has indicated off the record that the Courí has reviewed these records, although not word for word, and that there are some items that the Court is taking into consideration. And I believe based upon that, I have an absolute right to review those records and then also to question the DFS workers with regard to not only what they have done but also why they came to a substantiated conclusion.

(Emphasis added.)

After this dialogue with the motion court, the motion court could have denied the statements attributed to it that were allegedly made “off the record.” Instead, the motion court’s response was simply: “Thank you, Ms. Duchardt [Mother’s trial counsel].”7

Thereafter, the motion court announced its ruling as follows:

All right. In chambers, as well, the Court advised the parties how the Court was going to rule. We need to put this on the record. The Court believes under — under the law, that since criminal charges have not been filed, that the reports are confidential and should not be turned over to either of the parties.8 So the Court has advised the parties that’s going to be the Court’s ruling. The Court has further advised [Mother], who is desirous of seeing the report, that I will allow examination of the workers as to who they contacted but not the contents of any testimony, or anything that’s in the — in the [Children’s Division’s investigative records] — not admissible. So Count II of the motion in limine will be overruled to that extent.

(Emphasis added.)

So, the end result is that Mother’s trial counsel confirmed the motion court’s state*66ment off the record that the motion court had reviewed the investigative records and that the motion court had indicated to the parties that it was going to “take into consideration” certain items from that record (which it did), but the motion court would not permit Mother access to the information the motion court was relying upon to make a “finding” that justified custodial modification.

To state the procedural substance of what happened is to recognize the injustice of it.

Had the motion court followed up its recitation of the lengthy evidence in this case with express findings relating to credibility and its conclusion that evidence independent from the Children’s Division’s investigative records justified a “finding” of “substantiated” abuse, I would have no complaint with the judgment. That is not, however, what the motion court did.

Instead, the motion court erroneously delegated its responsibility to a third party — the Children’s Division. Then, because this third party “substantiated” allegations of abuse (at least at that juncture), the motion court concluded that it was unreasonable for Mother to refuse to believe those allegations and to take no steps to protect Daughter from this “alleged” abuse, an “allegation” later determined by the Children’s Division to be “unsubstantiated.”

Noticeably absent from the motion court’s statutory factor itemization is any statutory factor finding by the motion court that abuse had, in fact, occurred— this, even though the motion court heard three days of testimony on that very topic 9 — such that the most the motion court was willing to conclude on the topic was that someone else other than the motion court (i.e. Children’s Division) concluded that abuse was substantiated — the same agency that has subsequently concluded that the abuse allegations are, in fact, unsubstantiated.

The majority opinion’s ruling today sets a dangerous precedent. Although it is the job of the motion court, not the Children’s Division, to hear evidence and detail statutory factor findings, this court’s majority ruling today permits the motion court to effectively delegate its responsibility to the Children’s Division; then, this court’s majority ruling today permits the motion court to criticize Mother for failing to take the report of abuse by the Children’s Division (a report that is erroneously not provided to Mother) seriously enough to protect Daughter from abuse that the Children’s Division, not the motion court, “substantiates” (and later “unsubstanti-ates”), and the motion court refuses to let Mother see and refute the allegations of the very report that the motion court relies upon to punish Mother.

Erroneously, the majority opinion’s ruling today authorizes a motion court to *67wrongfully withhold documentation or information from a party even when the motion court uses that very documentation or information against the party.

Erroneously, the majority opinion’s ruling today allows the motion court to delegate its fact-finding responsibility to a third party — a third party who has subsequently changed its mind about the veracity of the facts that the motion court has relied upon to punish Mother.

Because the motion court relied upon the records of the investigation of the Children’s Division in framing its statutory “findings” to justify custodial modification, and those records were not admitted into evidence, the motion court’s judgment is not supported by substantial evidence. Alternatively, because the motion court erroneously delegated its fact-finding responsibility to a third party, whose investigation and resulting conclusions could not be challenged by Mother, the motion court erroneously applied the law. Under either scenario, I would reverse the motion court’s judgment.

I would hope that if the motion court was convinced to find a “change in eircum-stances” on the basis of a “substantiated” report by the Children’s Division, the motion court would likewise find another “change in circumstances” upon discovering that the Children’s Division has now concluded that the report of abuse was “unsubstantiated.”10

. The majority opinion recites testimonial evidence from a therapeutic counselor, a forensic interviewer, two evaluating psychologists, Father, Stepmother, and the GAL (Maj. Op. at 52-53), all of which the majority opinion concludes constitutes evidence "consistent” with abuse {Maj. Op. at 60-61). While the majority opinion thus implies that the motion court could have independently made a section 452.375.6 finding that abuse had, in fact, occurred (thereby identifying a statutorily required change in circumstance to substantiate the necessity for custodial modification), the plain and simple truth is that the motion court did 'not make Such a finding. After multiple pages of summarized evidence in the majority opinion supporting a finding of abuse, the majority opinion concedes: "[T]he *62motion court did not make a finding that [Mother’s husband] had abused Daughter.” See Maj. Op. at 59. (Emphasis added.) Shortly after this concession, though, the majority opinion again revisits the evidence of abuse and states: "The evidence ['testimony of the various treating and evaluating professionals and the forensic examiner' (Maj. Op. at 59) ] is relevant because it indicates that the motion court found the testimony to be credible and that even after Mother was aware of the opinions of these experts, she did not act to protect Daughter.” See Maj. Op. at 59. Again, that is not what the motion court actually said. The motion court stated that: "[Mother] has accepted the denial of her husband and has not protected her child from the alleged sexual abuse that was substantiated by the Children's Division.” Ultimately, the motion court was aware of the testimonial opinions of the treating, evaluating, and forensic experts (that the majority opinion outlines) and did not find them credible enough to draw the conclusion that abuse had, in fact, occurred. Mother came to the same conclusion as the motion court. Though the majority opinion seems to be suggesting that the motion court could, and maybe should, have stated it was penalizing Mother for ignoring credible "opinions of these experts” — it did not. The motion court penalized Mother for refusing to protect Daughter from "alleged sexual abuse that was substantiated by the Children's Division.” — allegations of which have now been deemed "unsubstantiated” by the Children’s Division.

. Throughout this dissenting opinion, I will refer to the Children’s Division of the Missouri Department of Social Services as "the Children’s Division.”

. When a trial court chooses to modify custody, the trial court is statutorily obligated to itemize written findings supporting its ruling. § 452.375.6; Rosito v. Rosito, 268 S.W.3d 410, 416-17 (Mo.App. W.D.2008). "'The purpose for the statutory requirement to detail the factors is to allow for more meaningful appellate review.’ ” Davis v. Schmidt, 210 S.W.3d 494, 503 (Mo.App. W.D.2007) (quoting Boothe v. Huber, 174 S.W.3d 712, 716 (Mo.App. W.D.2005)). When the trial court modifies a custody decree, the trial court’s finding must substantiate that " ‘a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child.’ ” Hightower v. Myers, 304 S.W.3d 727, 734 (Mo. banc 2010) (quoting § 452.410.1).

. Not only does the majority opinion ignore the plain and unambiguous "finding” of the motion court, the majority opinion attempts to re-write it, stating alternatively: (1) "It appears that the motion court came to the *63same conclusion as the GAL: while we may never know whether Daughter was abused, Mother’s cavalier response to the allegations reflects on Mother's ability to make decisions to protect Daughter.” See Maj. Op. at 59. (2) "All of this evidence supports the motion court’s finding that Mother failed to take steps to protect Daughter from possible sexual abuse.” See Maj. Op. at 59. (Emphasis added.) To the contrary, however, the motion court actually found (1) the Children’s Division substantiated a report of abuse by Mother's husband; (2) Mother’s husband denies wrongdoing; (3) Mother accepts her husband's denial as true and chooses not to inquire or otherwise cross-examine her husband. Plainly and simply, the motion court’s finding cloaks a substantiated abuse finding by the Children’s Division as something more than mere "we may never know what happened” or "possible abuse” and penalizes Mother for not protecting Daughter from abuse when the Children’s Division substantiates it.

. See discussion infra regarding the colloquy between Mother’s trial counsel and motion court where it was confirmed that the trial court did, in fact, intend to rely upon the investigative records of the Children’s Division in arriving at its determination in this proceeding.

. This second allegation of abuse against Mother's husband was later determined to be "unsubstantiated” by the Children’s Division. This fact is not in dispute. Both parties have stipulated to its veracity on appeal. So, while the motion court criticized Mother for believing her husband's denial of abuse instead of acting upon the "substantiated” allegation of abuse by the Children’s Division and found Mother's beliefs to be so unreasonable so as to justify a change in circumstances that warranted custodial modification, it turns out that Mother’s "motherly instincts” may not have been so unreasonable after all.

. First, the majority opinion concludes that there is nothing in the record indicating that the motion court relied upon anything in the investigative records and, instead, the motion court made it clear that it was not relying upon the investigative records. I respectfully submit that that is an unreasonable characterization of the transcript. The only thing the motion court made clear is that it would not permit admission of the records into evidence. But, as illustrated by the transcript colloquy between Mother’s trial counsel and the motion court, the motion court still intended to "take into consideration” "some items” from its in camera review of the investigative records that the motion court refused to admit into evidence or otherwise permit Mother to rebut the contents thereof. Second, the majority opinion states: "[T]he motion court expressly cites to the transcript of the November 10, 2008 temporary custody hearing to support its finding that the allegation was substantiated by the [Children’s Division] as to Pitts.” See Maj. Op. at 57. Importantly, this statement by the majority opinion misses the point of the content of the motion court’s reliance upon the in camera reviewed investigative records. It’s not the fact that the Children’s Division substantiated the abuse allegation — it’s why they did so and the investigative records reveal the "why” behind the “substantiation.” Mother never contested that the Children's Division "substantiated” the abuse allegation against her husband (which is why the majority opinion’s reference to a missing temporary custody hearing transcript is a red herring). Mother merely wanted to rebut the "why” behind the "substantiation” since the motion court had indicated that it was going to rely upon the "why” contained in the investigative records.

. See Pitts v. Williams, 315 S.W.3d 755 (Mo. App. W.D.2010), for this court’s discussion of the error of the motion court’s analysis relating to the discoverability of the investigative records as well as the majority’s discussion today regarding Mother’s right to accessibility of the investigative records in question.

. Though the motion court's judgment meticulously summarizes the evidence, including opinions of numerous witnesses testifying to their belief that abuse had occurred, nowhere in the thirteen-page judgment is there any "finding” by the motion court that abuse had, in fact, occurred — not in the section 452.375 statutory factor itemization, not in the findings of fact, not in the conclusions of law. This is significant. If the evidence of abuse was credible, the abuse would have been "found” by the motion court to exist. Absent such a "finding” of abuse, we are left with the opposite conclusion — that the motion court did not find the evidence of abuse credible enough to warrant a "finding” of abuse. Coincidentally, Mother came to the same conclusion — that the allegations of abuse were just that ... allegations — but in her opinion, not credible enough to warrant a "finding” in her mind that the allegations were, in fact, true. For that, Mother was penalized by the motion court’s judgment.

. I would also note that while the majority opinion is critical of Mother’s appellate briefing to this court, I join with the majority’s conclusion that the facts and arguments pertinent to Mother’s assertion of error in Mother's brief are readily discernable and, as such, agree that we should exercise our discretion to review Mother’s appeal. See Cubit v. Accent Mktg. Servs., LLC, 222 S.W.3d 277, 280 (Mo.App. W.D.2007) ("Under such circumstances [arguments readily discernable], appellate courts have discretion to review an appeal on the merits even if the brief fails to comply with Rule 84.04.”). I would give Mother more credit for her appellate brief than does the majority opinion. Specifically, Mother points us to the transcript of the pretrial hearing where the motion court's off-the-record statement, about considering the very investigative records that it refused to permit Mother to see, occurred. Mother argues that there is inadequate evidence in the record to support the judgment, and Mother expressly points to the fact that the evidence upon which the motion court relies was not "in the record” — namely, the records detailing the investigation and basis for the "substantiated" conclusion by the Children’s Division (i.e. the prejudice of the motion court's erroneous action). I do not, therefore, agree with the majority opinion’s statement (see Maj. Op. at 59) that Mother has failed to raise the arguments that (1) the motion court's judgment is not supported by substantial evidence and (2) the motion court erroneously delegated its fact-finding responsibility to a third party. Mother’s entire argument on appeal is that she was prejudiced by the substance of the erroneous manner in which the motion court relied upon the investigative records of the Children’s Division. Mother’s appellate arguments are, thus, readily discernible.