                 In the Missouri Court of Appeals
                         Eastern District
                                SOUTHERN DIVISION

                                            )      No. ED102737
                                            )
In the Interest of L.A.B.                   )      Appeal from the Circuit Court
                                            )      of St. Francois County
                                            )
                                            )
                                            )      Hon. Sandy Martinez
                                            )
                                            )
                                            )      FILED: December 29, 2015

                                       OPINION

       The Department of Social Services, Children’s Division, appeals the order of the

juvenile division of the circuit court of St. Francois County instructing Children’s

Division to designate a person to make end-of-life medical decisions for a child in the

Division’s custody. We reverse.

                                      Background

       Baby was born August 2014 and taken into protective custody due to Mother’s

heroin addiction. Paternity was not established, and Mother’s parents declined custody.

Children’s Division placed Baby in foster care, where she thrived until November 2014

when the Division placed her with Mother’s cousin and her husband. Twenty-seven days

later, Baby was admitted to Children’s Hospital with severe neurological injury and signs

of non-accidental trauma.     Doctors later determined that she was brain-dead and
requested a do-not-resuscitate (DNR) order. All parties - Mother, Children’s Division,

the juvenile officer, and the guardian ad litem - agreed that Mother should make medical

decisions for Baby, including signing a DNR order and terminating life support. At a

hearing December 2nd, the parties presented their stipulation to the Juvenile Court for

approval. The court declined to grant authority directly to Mother and instead ordered

Children’s Division to designate the appropriate person, whether Mother or someone

else. Following the hearing and with the Division’s permission, Mother went to the

hospital and signed the requisite forms to discontinue life-sustaining support. Baby died

shortly thereafter.

        Children’s Division now appeals the Juvenile Court’s order, asserting that

Children’s Division lacks authority to make extraordinary medical decisions on behalf of

a child in its custody, as such authority rests with the Juvenile Court.

                                     Appellate Review

        As a threshold matter, Mother moved to dismiss this appeal as moot in light of

Baby’s death. But courts make an exception to mootness when the issue has general

public interest and importance, is likely to recur, and will otherwise evade appellate

review. In re J.L.R., 257 S.W.3d 163, 166 (Mo. App. W.D. 2008). To establish that such

is the case here, Children’s Division submitted to this court: (1) a nearly identical order

issued by this Juvenile Court in 2013 directing the Division to designate a party to make

medical decisions for another child in the Division’s custody, (2) an order issued by

another Missouri circuit court in 2007 authorizing a mother to make extraordinary

decisions on behalf of her child in the Division’s custody, and (3) three orders issued by

other Missouri circuit courts between 2010 and 2015 in which the court authorized the




                                              2
termination of life support for children in the Division’s custody. These orders persuade

us that this issue is of public importance and likely to recur. We therefore deny Mother’s

motion to dismiss and exercise our discretion to review the merits.

        Our standard of review for decisions in juvenile proceedings is the same as for

any court-tried civil case. In re T.B.L.T., 367 S.W.3d 663, 664 (Mo. App. E.D. 2012).

We will affirm the trial court's judgment unless there is no substantial evidence to support

it, the decision is against the weight of the evidence, or it erroneously declares or applies

the law. Id. at 665, citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The

Division contends that the juvenile court erred as a matter of law, so our review is de

novo. Missouri Dept. of Social Services, Children’s Div. v. B.T.W., 422 S.W.3d 381, 387

(Mo. App. W.D. 2013).

                                             Discussion

        Children’s Division asserts that the Juvenile Court erred by requiring the Division

to make extraordinary medical decisions for Baby because that authority rests with the

Juvenile Court.

        In support of its position, Children’s Division cites the statutory framework

establishing its limited authority. Most notably, Children’s Division has the power “to

accept for social services and care homeless, dependent, or neglected children in all

counties where legal custody is vested in the children’s division by the juvenile court

where the juvenile court has acquired jurisdiction.”1 §207.020.1(17). “Legal custody”


1
  References to the juvenile court’s “jurisdiction” should be interpreted to articulate its
“authority,” merely setting statutory limits on remedies or relief that the court may grant. K.H. v.
State, 403 S.W.3d 720, 723 (Mo. App. W.D. 2013) citing J.C.W. ex rel. Webb v. Wyciskalla, 275
S.W.3d 249, 253 (Mo. 2009).




                                                 3
means the right to the care, custody and control of a child and the duty to provide food,

clothing, shelter, ordinary medical care, education, treatment, and discipline of a child.

§211.021.1(4); Rule 110.04(16). (emphasis added) Given this definition and invoking

the maxim expressio unius est exclusio alterius (the expression or inclusion of one thing

implies the exclusion of the other), Children’s Division contends that its authority to

make medical decisions for a child in its custody is limited to ordinary decisions and

excludes extraordinary decisions such as that affecting Baby here.

        The Juvenile Officer responds that Juvenile Court did not err in requiring the

Division to make decisions for Baby because, as legal custodian, the Division routinely

manages the medical circumstances of children in its care and thus is better suited for the

responsibility.

        Both parties stray from the relevant issue in debating whether Children’s Division

has the statutory authority to make extraordinary medical decisions. We need not opine

on the precise scope of Children’s Division’s authority or where the line is drawn

between ordinary and extraordinary care. Rather, the narrow question before us on the

present facts is whether the Juvenile Court abdicated its responsibility by directing

Children’s Division to designate a decision-maker?2 We hold that it did.

        The juvenile code “is rooted in the concept of parens patriae, that the state will

supplant the natural parents when they fail in that role … . This parens patriae

relationship exists between the child and the juvenile court.” J. D. H. v. Juvenile Court of

St. Louis Cnty., 508 S.W.2d 497, 500 (Mo. 1974) (emphasis added); In Interest of R L C,

Jr., 967 S.W.2d 674, 677 (Mo. App. S.D. 1998).
2
 Children’s Division operates under the aegis of the Department of Social Services and thus acts
on behalf of the executive branch of government.



                                               4
        For example, the aforementioned statute empowering Children’s Division to

accept children into care when the juvenile court confers legal custody (§207.020.17)

further contemplates that, if a child in custody needs care or treatment that the Division

cannot provide, then the Division can ask the court to relieve it of custody. The court

must act swiftly and “shall be vested with full power to make such disposition of the

child as is authorized by law.” §207.020.1(17)(a).3 As another example, §210.166,

governing actions for medical neglect, permits Children’s Division to file a petition and

empowers the circuit court to ensure that medical services are provided to the child when

the child’s health requires it.”4 In short, while the Division’s authority is limited, the

court’s authority is broad.

        The primacy of the court’s parens patriae responsibility is evident throughout

Missouri statutes and case law. The General Assembly has declared that, as a matter of

public policy, the paramount concern is the best interest of the child. See e.g., §211.011

(state’s child welfare policy is best interests of the child); §211.443 (statutes regarding


3
 The full text of §207.020.1(17)(a) states: The children's division may, at any time, if it finds the
child placed in its custody is in need of care or treatment other than that which it can provide,
apply to the court which placed such child for an order relieving it of custody of such child. The
court must make a determination within ten days and the court shall be vested with full power to
make such disposition of the child as is authorized by law, including continued custody.
4
  Section 210.166 authorizes Children’s Division, juvenile officers, physicians, hospitals, and
other health care providers to bring an action alleging medical neglect by a child’s parents or
guardians and to obtain a court order authorizing the requisite care. The statute states in pertinent
part: “A petition filed under this section shall be expedited by the court involved in every manner
practicable, including, but not limited to, giving such petition priority over all other matters on the
court's docket and holding a hearing, at which the parent, guardian or other person having
authority to consent to the medical care in question shall, after being notified thereof, be given the
opportunity to be heard, and issuing a ruling as expeditiously as necessary when the child's
condition is subject to immediate deterioration. Any circuit or associate circuit judge of this state
shall have the authority to ensure that medical services are provided to the child when the child's
health requires it.”




                                                  5
termination of parental rights to be construed to promote best interests of the child).

Missouri law leaves no doubt that the court is the ultimate authority on that question. See

e.g., §452.375.2 (court shall determine custody in best interests of the child); In re

Marriage of Hendrix, 183 S.W.3d 582, 591 (Mo. 2006) (court, not parties, determines

what custody arrangement is in the best interests of the children.); In re Q.A.H., 426

S.W.3d 7, 12 (Mo. 2014) (courts must determine whether termination of parental rights is

in the best interests of the child).

        By analogy, in the probate context, a guardian appointed by the probate court has

statutory authority to make end-of-life decisions on behalf of the ward.              Matter of

Warren, 858 S.W.2d 263 (Mo. App. W.D. 1993). The probate court must determine the

proper guardian for incapacitated persons notwithstanding the recommendation of the

Department of Mental Health.5 See e.g., Prost v. Schuffman, 202 S.W.3d 41 (Mo. App.

E.D.) (probate court obligated to consider suitability of family member as potential

guardian for disabled adult notwithstanding DMH request for appointment of public

administrator). Missouri law also recognizes the probate court’s authority to appoint a

guardian for children who are under the “parallel” jurisdiction of the juvenile court

pending termination of parental rights and adoption. In re J.M.J., 404 S.W.3d 423 (Mo.

W.D. 2013).




5
 Like the Department of Social Services, the Department of Mental Health is also part of the
executive branch.



                                               6
        Simply put, the judiciary is vested with the responsibility to authorize end-of-life

medical decisions on behalf of and in the best interests of children under its jurisdiction.6

The court may not abdicate or delegate that duty.

                                            Conclusion

        The Juvenile Court erred in ordering Children’s Division to appoint a person to

direct Baby’s end-of-life care. The trial court’s judgment is reversed.




                                         ______________________________________
                                         Lisa Van Amburg, Chief Judge


Gary M. Gaertner, Jr., J., and
Philip M. Hess, J., concur.




6
  Of course, absent termination of parental rights, subrogation of parental authority in these
circumstances is subject to the requirements of due process, particularly notice and an opportunity
to be heard. Due process was satisfied here in that Mother participated in the proceedings, and
there was no evidence in the record suggesting that Mother was incapable of making the decision.




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