                                  Missouri Court of Appeals
                                              Southern District
                                                  Division Two

In the Interest of DARYL SERCL,                                )
                                                               )
         Petitioner-Respondent,                                )
                                                               )
vs.                                                            )       No. SD33396
                                                               )
DIRECTOR, DEPARTMENT OF SOCIAL                                 )       Filed July 22, 2015
SERVICES, CHILDREN’S DIVISION OF THE                           )
STATE OF MISSOURI,                                             )
                                                               )
         Respondent-Appellant.                                 )

                   APPEAL FROM THE CIRCUIT COURT OF DENT COUNTY

                                 Honorable Kelly W. Parker, Circuit Judge

AFFIRMED

         The Children’s Division of the Department of Social Services (“the Division”) appeals

from the trial court’s judgment finding that the Division failed to prove that Daryl Sercl (“Sercl”)

neglected K.J. and ordering the Division to remove Sercl from the Central Registry (“the

Registry”). 1 Finding no merit in the Division’s claim that the judgment is not supported by

substantial evidence, we affirm.




1
 The Registry is a non-public list of people who committed child abuse or neglect. In re Taryn Williams, 440
S.W.3d 425, 433 (Mo. banc 2014). The list is made available to individuals and entities responsible for caring for
and protecting children. Id.

                                                         1
                                              Standard of Review

         Sercl sought the trial court’s de novo judicial review of the Division’s decision in

accordance with the provisions of section 210.152. 2 The trial court’s judgment “will be

sustained on appeal unless it is unsupported by substantial evidence, it is against the weight of

the evidence, or it erroneously declared or applied the law.” Jamison v. State, Dep’t of Soc.

Servs., Div. of Family Servs., 218 S.W.3d 399, 404 (Mo. banc 2007) (citing Murphy v. Carron,

536 S.W.2d 30, 32 (Mo. banc 1976)). We view the evidence in the light most favorable to the

trial court’s judgment and defer to the factual findings and credibility determinations made by

the trial court. In re Taryn Williams, 440 S.W.3d 425, 427 (Mo. banc 2014).

                                   Factual and Procedural Background

         When she was fourteen years and five months old, K.J. lived with her mother (“Mother”)

and Sercl, Mother’s boyfriend, in Salem, Missouri. K.J. and Sercl were traveling back to Salem

after dark from Licking, Missouri, when Sercl let K.J. drive his truck, at her request, to help her

learn to drive. Although she did not have a license or permit to drive, K.J. had previously driven

with her mother and grandmother. The highway was mostly straight with minimal traffic, and

K.J. drove around 45 miles per hour. K.J. noticed something in the road, swerved to the right off

the blacktop to avoid it, and then overcorrected in an attempt to get back on the road. The truck

hit a tree, and K.J., who was not wearing a seatbelt, sustained serious injuries. 3 K.J. had


2
  References to section 210.152 are to RSMo Cum.Supp. 2010.
3
  Sercl had opened a 24-ounce can of beer approximately five minutes before the accident but had not otherwise had
anything alcoholic to drink that day and was not intoxicated. Whether Sercl was intoxicated at the time of the
accident was strongly contested during the trial. Mother and K.J. agreed that he was not. The Division’s witness, a
police officer who responded to the accident, testified that Sercl was intoxicated. Although the Division now
concedes Sercl was not intoxicated, the Division nevertheless argues that we should infer from the presence of the
open container of alcohol that Sercl was not adequately supervising K.J. Because the Division’s proffered inference
is contrary to the judgment, it must be disregarded. See Houston v. Crider, 317 S.W.3d 178, 183 (Mo.App. 2010).
Viewed in that light, as it must be, the uncontested fact that Sercl had an open container of beer has no relevance to
the resolution of this appeal. We mention it in this footnote only to illustrate how many of the Division’s arguments
are premised upon evidence or inferences that are contrary to the trial court’s judgment and are therefore not in
accordance with our standard of review.

                                                          2
previously been instructed on how not to overcorrect, but the truck she was driving at the time

was an older model and she had to turn the wheel harder than usual. Sercl acknowledged that

allowing K.J. to drive was a “bad error in judgment.” None of K.J.’s injuries had lasting

physical effects, and, at the time of trial, she was a senior in high school working concurrently

toward a nursing degree in college.

       The Division decided that Sercl neglected K.J. Sercl appealed to the Child Abuse and

Neglect Review Board (“the CANRB”). The CANRB also decided that Sercl neglected K.J.

Sercl petitioned the trial court for de novo review, and the trial court held an evidentiary hearing.

In its judgment, the trial court found K.J.’s testimony in support of Sercl to be “exceptionally

credible, convincing, and compelling.” The trial court found Mother’s testimony in support of

Sercl to be “credible and convincing” as well. The trial court concluded that the Division failed

to prove that Sercl neglected K.J. and ordered Sercl’s name removed from the Registry. The

Division timely appeals.

                                             Discussion

       The Division’s sole point relied on states that the “trial court erred when it concluded

that the Children’s Division failed to prove that Daryl Sercl neglected a minor child,

because the court’s conclusion is not supported by substantial evidence, is against the

weight of the evidence, and misapplies the law[.]” Our Supreme Court has noted that a

substantial-evidence challenge, a misapplication-of-law challenge, and an against-the-weight-of-

the-evidence challenge are distinct claims that must appear in separate points relied on in the

appellant’s brief to be preserved for appellate review. Ivie v. Smith, 439 S.W.3d 189, 199 n.11

(Mo. banc 2014). At oral argument, counsel for the Division elected to narrow the Division’s

point to the claim that the judgment was not supported by substantial evidence. Given this

election, we gratuitously review that claim.
                                                  3
         The Division’s claim is without merit because the trial court’s judgment against the

Division, the party with the burden of proof, was not required to be supported by substantial

evidence. Before placing Sercl on the Registry, Sections 210.110 4 and 210.152 assign to the

Division the burden to prove by a preponderance of the evidence that Sercl neglected K.J. by

failing to provide her with the care necessary for her well-being. See also Jamison, 218 S.W.3d

at 417 (due process requires application of a preponderance of the evidence standard of proof

upon de novo judicial review of a CANRB decision). This issue was contested in the trial court.

Therefore, the trial court was free to disbelieve the Division’s uncontradicted or uncontroverted

evidence and its denial of the Division’s claim was not required to be supported by substantial

evidence because Sercl, as the party not having the burden of proof, had no obligation to offer

any evidence contrary to that issue. See In re M.B.R., 404 S.W.3d 389, 393-94 (Mo.App. 2013);

see also White v. Dir. of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010) (“When the burden of

proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or

disbelieve that party’s uncontradicted or uncontroverted evidence” and “generally, the party not

having the burden of proof on an issue need not offer any evidence concerning it.”).

         The Division, while acknowledging that it had the burden of proof and that Sercl was not

required to produce any evidence to support a judgment in his favor, nevertheless, insists that the

judgment is not supported by substantial evidence because the uncontested facts required the trial

court to find, as a matter of law, that Sercl neglected K.J. 5 Specifically, the Division argues that


4
  References to section 210.110 are to RSMo Cum.Supp. 2010. Subsection 12 of that section defines “neglect” as
the “failure to provide, by those responsible for the care, custody, and control of the child, the proper or necessary
support, education as required by law, nutrition or medical, surgical, or any other care necessary for the child's well-
being.”
5
  The astute reader may ponder whether the Division is in actuality arguing that the judgment is against the weight
of the evidence. Rather than resolve that issue, however, we have simply chosen to review this argument in the
manner presented by the Division as part of our ex gratia review of whether the judgment is supported by substantial
evidence. Practitioners should carefully consider and delineate the distinct claims that may be raised on appeal
under our standard of review. See Ivie, 439 S.W.3d at 199 n.11.

                                                           4
because Sercl was negligent by violating section 302.260, 6 citing Dinger v. Burnham, 228

S.W.2d 696, 699-700 (Mo. 1950), and Thomasson v. Winsett, 310 S.W.2d 33, 36-37 (Mo.App.

1958), he necessarily, as a matter of law, neglected K.J., as that term is defined in section

210.110(12). (AB, 20-1). We disagree.

        Although the Division’s argument treats negligence and neglect as synonymous, they are

not. In evaluating conduct for alleged negligence, “[t]he standard of conduct exacted by the law

is an external and objective standard, and not the personal, individual, subjective standard of the

actor involved.” Hodges v. Am. Bakeries Co., 412 S.W.2d 157, 162 (Mo. banc 1967) (internal

quotation marks and citations omitted). In evaluating conduct toward a child for alleged

neglect, however, the eastern district of this court has stated that neglect “normally focuses on

physical deprivation or harm” and “the issue turns on intent, which generally is an inferred fact,

determined by conduct[.]” C.B.L. v. K.E.L., 937 S.W.2d 734, 737 (Mo.App. 1996). But, while

subjective intent may be considered, as indicated by C.B.L., it is not a required element. See T.J.

v. Missouri Dep't of Soc. Servs., Children's Div., 305 S.W.3d 469, 474 (Mo.App. 2010) (neglect

found even though the evidence did not suggest the mother willfully endangered her child or

intended any harm). In determining from the totality of the circumstances whether neglect has

occurred, therefore, the trial court may consider, but is not bound by, the subjective intent of the

alleged perpetrator. This consideration of subjective intent in a neglect determination

distinguishes it from a negligence determination that only considers objective intent.

        Here, the Division’s argument equating negligence in violating section 302.260 and

“neglect” as defined under section 210.110 inappropriately ignores the trial court’s ability to

consider Sercl’s subjective intent. From the evidence in the record, the trial court reasonably

6
 References to section 302.260 are to RSMo 2000. Section 302.260 provides: “No person shall authorize or
knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway by any person
who is not authorized hereunder or in violation of any of the provisions of sections 302.010 to 302.260.”

                                                      5
could have inferred that Sercl intended to let K.J. drive his vehicle (thereby violating section

302.260) but that Sercl did not intend to harm K.J. or physically deprive her of anything. Rather,

it could have reasonably inferred that Sercl intended to assist K.J. in becoming a better driver and

concluded that under the totality of the circumstances, Sercl’s intended conduct, even if it was

the result of what he later described as “bad judgment,” was not neglect as defined in section

210.110(12). Point denied.

                                             Decision

       The trial court’s judgment is affirmed.


GARY W. LYNCH, J. – Opinion author

NANCY STEFFEN RAHMEYER, J. – concurs

DON E. BURRELL, J. – concurs




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