                                                      In the
                                Missouri Court of Appeals
                                            Western District

                                                            
 IN THE INTEREST OF: B.O.,                                  
                                                                WD82883
                       Appellant,                               OPINION FILED:
 v.                                                         
                                                                FEBRUARY 25, 2020
 JUVENILE OFFICE,                                           
                                                            
                      Respondent.                           
                                                            
                                                            


                      Appeal from the Circuit Court of Daviess County, Missouri
                                The Honorable R. Brent Elliott, Judge

      Before Division One: Thomas H. Newton, Presiding Judge, Mark D. Pfeiffer, Judge,
                               Anthony Rex Gabbert, Judge


        B.O. appeals the circuit court’s judgment finding that B.O., pursuant to Section 559.036,1

violated his court-ordered probation agreement by failing to maintain satisfactory academic

performance and school attendance, and violated Section 569.120, by, in concert with others,

committing three counts of the class B misdemeanor of Property Damage in the Second Degree,

if he were an adult. B.O. contends the circuit court 1) erred in committing B.O. to Division of

Youth Services (DYS) without a dispositional hearing, 2) erred in finding B.O. committed property



        1
            Unless otherwise noted, all statutory references are to the Revised Statutes of Missouri as updated through
2017.
damage in the second degree relating to a vehicle owned by Roni Betchel, and 3) erred in finding

B.O. committed property damage in the second degree relating to a vehicle owned by Tina

Ableidinger. We affirm in part and reverse in part.

                             Background and Procedural Information

       On May 18, 2018, the Juvenile Division of the Daviess County Circuit Court found B.O.

to be within the jurisdiction of the court after B.O. admitted to being beyond parental control

pursuant to Section 211.031.1(2)(b) and violating compulsory school attendance laws pursuant to

Section 211.031.1(2)(a). The court ordered B.O. be made a ward of the court and placed on

probation for an indeterminate period of time under Juvenile Office supervision. B.O. remained

in the custody of his legal guardian and was to complete twenty hours of community service and

participate in counseling.

       On March 4, 2019, the Juvenile Office moved to modify the court’s previous order of

disposition and requested B.O. be committed to the legal and physical custody of DYS for an

indeterminate period of time. The allegations in the motion were that, 1) in violation of Section

559.036, B.O. committed a misdemeanor, if he were an adult, by violating condition #2 of his

court-ordered probation agreement by failing to maintain satisfactory academic progress and

school attendance by missing seventeen days of school without justification, 2) in violation of

Section 569.120, B.O., in concert with others, committed the Class B Misdemeanor of Property

Damage in the Second Degree, if he were an adult, by knowingly damaging the property of another

by using a crowbar to break the front and rear driver side windows of a pickup owned by Roni

Betchel, 3) in violation of Section 569.120, in concert with others, committed the Class B

Misdemeanor of Property Damage in the Second Degree, if he were an adult, by using a crowbar

to break the windshield and passenger headlight of a vehicle owned by Jim Harrington, and 4) in

                                                2
violation of Section 569.120, in concert with others, committed the Class B Misdemeanor of

Property Damage in the Second Degree, if he were an adult, by using a crowbar to break the front

driver side and middle driver side window of a van owned by Tina Ableidinger.

         On June 3, 2019, an adjudication hearing was held on the Juvenile Office’s Motion to

Modify.2 After the adjudication hearing, but prior to the court entering Judgment, B.O.’s counsel

advised the court that, if the court sustained the allegations, Counsel desired to make a dispositional

argument against the Juvenile Office’s recommendation of DYS custody. The court replied,

“Okay. Anything further.” The court then found all allegations in the Motion proven and, without

further argument or evidence taken regarding disposition, placed B.O. in the legal and physical

custody of DYS for an indeterminate period of time. This colloquy followed:

         [B.O.’s COUNSEL]: Judge, I would just like to make a few comments about the
                           disposition. I know you just ruled on that, but I would like
                           to at least make an argument about that before he is actually
                           committed. I think that this is a case, with restitution, he
                           should be given the opportunity –

         THE COURT:                   I just committed him. What do you mean?

         [B.O.’s COUNSEL]: I understand. I was wanting to make an argument for the
                           disposition portion of this in the event that you found he had
                           violated. So I was making – my first argument was just
                           about the evidence. Now I was going to make an argument
                           on the disposition.

         THE COURT:                   Okay. Well, your argument is noted, but it won’t change my
                                      decision any.



         2
            At the trial setting where all parties, including B.O., were present, the court inquired as to whether the issue
was a truancy matter. The Juvenile Office advised that the original petition related to truancy, and at the time of the
filing of the Motion to Modify, B.O. had missed seventeen days of school. Further, that B.O. was allegedly attending
online classes, but the Juvenile Office had received no confirmation. The Juvenile Office advised that, additionally,
the Motion to Modify involved delinquency violations of probation conditions involving property damages. The court
stated: “Well, here’s the bottom line: I’m going to set this for hearing. We’re going to hear this case, and you’re
probably not going to like the result. If you want a hearing, you’re going to get a hearing.

                                                             3
The court’s “Order and Judgment of Disposition Committing Juvenile to Custody of Division of

Youth Services” stated that the court had “received further evidence concerning the need of care

and treatment which cannot be furnished by placing the juvenile in his own home, but which

requires the care, custody and discipline of a facility of the Division of Youth Services because

suitable community based treatment services would not be appropriate in this matter.” The

Judgment ordered B.O. detained until accepted by DYS, that DYS was to accept B.O. into a facility

within ten business days of the order, and that the court’s jurisdiction over B.O. would terminate

upon B.O.’s receipt by DYS. This appeal follows.

                                             Standard of Review

       We review juvenile adjudication proceedings under the standard applied in other court-

tried civil cases and will 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. In re A.G.R.,

359 S.W.3d 103, 108 (Mo. App. 2011). We consider the evidence in the light most favorable to

the circuit court’s ruling and ignore evidence to the contrary. Id. We review questions of law de

novo. Cosby v. Treasurer of State, 579 S.W.3d 202, 206 (Mo. banc 2019).

                                      Point I – Dispositional Hearing

       In his first point on appeal, B.O. contends the circuit court erred in committing B.O. to

DYS without a dispositional hearing, arguing this denied B.O. due process, denied B.O. a

fundamentally fair dispositional hearing, and violated Rule 128.03.3 B.O. argues that Rule 128.03

requires dispositional hearings to be on the record and grants juveniles the right to testify, present




       3
           All rule references are to the Missouri Supreme Court Rules (2017) unless otherwise noted.

                                                         4
evidence, cross-examine witnesses, present arguments of law and fact, and present arguments

concerning the weight, credibility, and effect of the evidence.

         The Juvenile Office argues that a dispositional hearing was not required prior to the court

ordering B.O. placed with DYS because B.O. had a prior dispositional hearing after he admitted

to being beyond parental control and failing to attend school. The Juvenile Office contends that,

at that time B.O. was made a ward of the court and, pursuant to Section 211.181, placed on

probation for an indeterminate amount of time under the terms and conditions fixed by the Juvenile

Office. Therefore, B.O. was only entitled to an adjudication hearing on the allegations in the

Motion to Modify and not entitled to a dispositional hearing after the Motion was adjudicated. The

Juvenile Office argues that Rule 119.03 simply states that a court may modify a judgment after a

hearing on the record, and B.O. was provided an adjudication hearing on the allegations in the

Motion to Modify.

         The Juvenile Office further argues that Rule 128.03 provides that dispositional hearings

“may be held” separate from or immediately following an adjudication hearing under Rule 128.02,

arguing that the court may, therefore, choose to hold a dispositional hearing separate from, directly

following, “or combined with” a hearing on a motion to modify. (Emphasis added).4

         First, we disagree with the Juvenile Office’s position that a dispositional hearing may, at

the court’s discretion, be melded with an adjudication hearing. Nowhere in the Missouri Supreme

Court Rules is a “combined” hearing provided for, nor would such be practical where Rule

128.02.b provides that the “rules of evidence shall apply” in adjudication hearings, and Rule



         4
          Although the Juvenile Office does not dispute that B.O. was denied a dispositional hearing, contending he
was not entitled to one, this argument suggests an alternative claim that a dispositional hearing was actually provided
B.O. during the adjudication hearing. There is no support in the record for this claim.

                                                          5
128.03.b states that the “rules of evidence do not apply” in dispositional hearings. We find Rule

128.02 dispositive of this issue. As applicable here it provides that, at an adjudication hearing in

a proceeding under subdivision (2) or (3) of subsection 1 of Section 211.031, upon finding that

any allegation in the petition or motion to modify is proved within the applicable standard of proof,

the court shall make findings on the allegations in the petition or motion to modify that are proved

and enter an order regarding whether the court has jurisdiction over the juvenile. Id. at 128.02 a,

e. (Emphases added). Further,

       f.     If the dispositional hearing does not immediately follow the adjudication
       hearing, the court:

                 (1) Shall continue or, if appropriate, amend any detention order;

                 (2) May order a social study to be prepared pursuant to Rule 118,01; and

                 (3) Shall schedule the dispositional hearing.


Id. (Emphases added). Hence, Rule 128.02 clearly mandates a separate dispositional hearing that

must occur immediately following an adjudication hearing or at a later, scheduled, date. Rule

128.03 reiterates that the mandatory hearing may immediately follow or be held separate from the

adjudication hearing and provides for how the court is to conduct such a hearing. It states, in

relevant part:

              a.     A dispositional hearing in a proceeding under subdivision (2) or (3)
       of subsection 1 of section 211.031, RSMo, may be held separate from or
       immediately following an adjudication hearing held pursuant to Rule 128.02.

               b.      At such a dispositional hearing, the court shall receive evidence and,
       in accordance with the best interests of the juvenile, determine and make findings
       on the legal and physical custody of the juvenile and on the disposition to be
       imposed on the juvenile. The hearing shall be held on the record. The court may
       take judicial notice of the court’s file. The rules of evidence do not apply. All
       parties shall be afforded the opportunity to testify, present evidence, cross-examine


                                                  6
       witnesses, and present arguments of law and fact and arguments concerning the
       weight, credibility and effect of the evidence.

Id.

       Second, we disagree with the Juvenile Office’s position that Rule 119.03 provides that no

dispositional hearing is required if adjudication is pursuant to a motion to modify. Rule 119.03.b

states: “The court may modify a judgment or order under which it has jurisdiction over a juvenile

after a hearing on the record or by agreement of all parties.” (Emphasis added). The only grounds

for which the court already had jurisdiction of B.O. were for status offenses – B.O.’s admissions

of truancy and being beyond parental control. The “Comment” to Rule 119.03 states:

               This Rule 119.03 is not intended to suggest that a court without a hearing
       may modify a judgment or order so as to impose additional restraints upon the
       juvenile or upon the juvenile’s parents, guardian or custodian, to deprive the
       juvenile’s parents, guardian or custodian of custody of the juvenile, or to commit
       the juvenile to the division of youth services.

       Here, B.O. was, in part, alleged to have committed a misdemeanor in violation of Section

559.036, if he were an adult, by violating condition #2 of his court-ordered probation agreement

by failing to maintain satisfactory academic progress and school attendance. Section 559.036,

however, regards probation revocation for criminal defendants and is inapplicable to juveniles.

“Juvenile proceedings are civil, not criminal, and are focused on continuing care, protection, and

rehabilitation of the juvenile, not punishment.” In Interest of A.C.C., 561 S.W.3d 425, 428 (Mo.

App. 2018). B.O. was already under the jurisdiction of the court for lack of school attendance and

the court ordered a specific disposition regarding that initial finding. The modification request

with regard to B.O.’s lack of school attendance was, therefore, essentially a request to modify the

court’s previous disposition and present evidence as to why modification was justified – in this

case, for violation of the Juvenile Office’s terms of probation requiring school attendance. Because


                                                 7
the hearing on the modification request was essentially a dispositional hearing as it was a request

to change the previous disposition with regard to B.O.’s failure to attend school, B.O. should have

been given the opportunity under both Rule 119.03 and Rule 128.03 to present evidence and

argument as to why a disposition of DYS custody was inappropriate.5 Here, the court deprived

B.O.’s guardian of custody of B.O. and committed B.O. to DYS without B.O. being heard on this

disposition. We note that, if the Juvenile Office was attempting to adjudicate new allegations of

truancy in the Motion to Modify, as it may have been attempting as evidenced by the Motion

improperly charging B.O. with alleged misdemeanors for failure to attend school, a dispositional

hearing would still be required pursuant to Rule 128.02, as discussed below.

        Third, regardless of whether the Juvenile Office’s motion was termed a “Motion to Modify

Previous Order of Disposition,” the hearing on the Juvenile Office’s allegations of property

damage was an adjudication hearing. Property damage allegations, if proven, allow a court to

assume jurisdiction of a juvenile under Section 211.031.1(3). As discussed above, Rule 128.02

sets forth guidelines for adjudication hearings in proceedings under Section 211.031.1(2) or (3).

It states, in relevant part: “At such an adjudication hearing, the court shall determine what

allegations in the petition or motion to modify are admitted by the juvenile and receive evidence

on the allegations that have not been admitted.” Rule 128.02.b. (Emphasis added). “All parties




         5
           We note that Section 211.181.2, which regards dispositional orders regarding status offenses, states that
execution of any order entered pursuant to this subsection, including a commitment to any state agency, may be
suspended and the child placed on probation subject to conditions as the court deems reasonable. “After a hearing,
probation may be revoked and the suspended order executed.” Id. Here, B.O. was not originally ordered into DYS
custody with a suspended execution of that order, nor could he have been. Under Section 211.181.2 (2)(a), a child
may not be committed to DYS unless he/she is “presently under the court’s supervision after an adjudication under
the provisions of” Section 211.031.1(2) or (3). B.O. was not presently under the court’s supervision in May of 2018
when B.O. was found to be within the jurisdiction of the court after admitting to being truant and beyond parental
control.


                                                         8
shall be afforded the opportunity to testify, present evidence, cross-examine witnesses, and present

arguments of law and fact and arguments concerning the weight, credibility and effect of the

evidence.” Id. Further, after adjudicating the petition or motion to modify, a dispositional hearing

shall be held. Rule 128.02 e, f. Hence, dispositional hearings are required where allegations are

proven in either a petition or motion to modify filed pursuant to Section 211.031.1(2) or (3).

       C.L.B. v. Juvenile Officer, 22 S.W.3d 233 (Mo. App. 2000), discusses that motions to

modify were not historically used to adjudicate new allegations. C.L.B. involved Rule 117.05

(1995), now repealed, which provided that in all hearings upon a petition alleging as a basis for

jurisdiction that the juvenile committed an act or acts which would be a crime if committed by an

adult, such were to be proved beyond a reasonable doubt. Id. at 237 (Emphasis added). In “all

other hearings the facts alleged shall be by clear and convincing evidence.” Id. The Juvenile

Officer in C.L.B. contended that, because the juvenile was already under the court’s jurisdiction

and committed a new crime while on probation, the lesser standard of clear and convincing

evidence applied. Id. We disagreed stating:

               It may be that, at the time that Rule 117.05 was adopted, motions to modify
       were not used to adjudicate guilt or innocence of other crimes, and that such
       adjudications were anticipated to occur only during the initial hearing which
       provided a basis for the court to take jurisdiction over the juvenile in the first
       instance. Whatever was the case at that time, however, counsel for C.L.B. alleges,
       and counsel for the Juvenile Officer confirms, that now motions to modify are used
       to do far more than merely modify the disposition made on the juvenile’s original
       adjudication of guilt in the case which initially brought the juvenile within the
       juvenile court’s jurisdiction.

               Now, motions to modify are often also used to provide a forum for an
       adjudication of the juvenile’s guilt of additional crimes occurring while the juvenile
       was under the court’s jurisdiction. And, under his interpretation of Rule 117.05,
       the Juvenile Officer took the position that because he had charged a juvenile under
       the juvenile court’s jurisdiction of a crime by means of a pleading denominated as
       a motion to modify, the standard of proof applicable to modifications of a juvenile’s


                                                 9
        disposition would apply, even though the juvenile would in fact be charged with
        and actually found guilty of a separate crime.

                This is a misuse of the motion to modify procedure. If that procedure is
        truly being used to modify a prior disposition based on a parole violation, then a
        clear and convincing evidence standard is proper. However, under In re Winship,
        the motion to modify procedure cannot properly be used to provide a forum for an
        adjudication of guilt of an act which would be a crime if committed by an adult,
        with all the collateral consequences of a conviction of that offense, unless a beyond
        a reasonable doubt standard is applied to that aspect of the trial.

                We find no reason, either in common sense or as required under our
        constitutional precepts, for not providing a beyond a reasonable doubt evidence
        standard in the case of an adjudication of guilt of a child just because the child is
        already within the court's jurisdiction where the adjudication of guilt is a conviction
        for the commission of a criminal act carrying similar burdens on account of that
        conviction outside as well as inside the jurisdiction of the juvenile court.

Id. at 239.

        The Juvenile Office contends that C.L.B. holds that a juvenile’s rights to a fair disposition

after adjudication of a motion to modify are fully protected by using a beyond reasonable doubt

standard when adjudicating the allegations. We disagree. The issues of disposition and/or

dispositional hearings were not addressed in C.L.B. and Rule 128.02 clearly mandates that

dispositional hearings shall occur after an adjudication on a motion to modify if the court

determines that proven allegations bring the juvenile within the court’s jurisdiction.

        The Juvenile Office also contends that the court had ample evidence to determine an

appropriate disposition based on the evidence presented at trial regarding B.O.’s probation

violations and property damage, as well as the Social Investigation Summary filed by the Juvenile

Office prior to the court initially taking jurisdiction of B.O. on the 2018 status offenses. Yet, the

Social Investigation Summary from the prior adjudication recommended B.O. remain in the

custody of his grandmother subject to supervision through the Juvenile Office. The Juvenile Office

recommended a different disposition at B.O.’s trial on the Motion to Modify and the court accepted

                                                  10
the Juvenile Officer’s recommendation of DYS custody.                     B.O. should have been given an

opportunity to present his own evidence and argument and refute any evidence, argument, and

recommendations of the Juvenile Office.6 Rule 128.03.

          The court erred in modifying the prior disposition and committing B.O. to DYS without

conducting a dispositional hearing in compliance with Rules 128.02 and 128.03.

          B.O.’s first point on appeal is granted.

                            Points II and III – Sufficiency of the Evidence

          In his second and third points on appeal, B.O. contends there was insufficient evidence to

support that B.O. committed property damage in the second degree relating to vehicles owned by

Roni Betchel and Tina Ableidinger.

          “In determining whether sufficient evidence has been presented to sustain an adjudication

in a juvenile proceeding, the trial court’s decision must be given the same deference as it would

be given in an adult criminal proceeding.” In re D.M., 370 S.W.3d 917, 922 (Mo. App. 2012)

(superseded on other grounds). We view the evidence and reasonable inferences drawn therefrom

in the light most favorable to the judgment, and ignore all evidence and inferences to the contrary.

Id.

          The evidence was that, on January 1, 2019, Daviess County Deputy Sheriff Larry Adams,

Jr., was dispatched to 400 Forest Street, Jamesport, Missouri, in reference to a vandalized vehicle.

When he arrived, he saw a white Chevrolet pickup truck that had damage to its windows. The

driver’s side window and the rear driver’s side window were broken. Roni Betchel owned the

pickup.


        6
          Section 211.181 regards actions the court may take in its Order for disposition; it does not dispense with
Rule 128.02 and 128.03 dispositional hearing requirements as suggested by the Juvenile Office.

                                                        11
       Later that day, Adams was dispatched in reference to vandalism of a minivan owned by

Jim Harrington which was parked in front of the Jamesport Tavern. The windshield and passenger

side front headlight assembly were broken.

       Adams next responded to an allegation of an assault that occurred in Jamesport, and spoke

with Jason Turley who informed him of additional property damage. After speaking with Turley,

Adams located a vandalized minivan belonging to Tina Ableidinger on West Auberry Grove.

There was damage to the driver’s and rear driver’s side windows and the driver’s side mirror

assembly. On North Locust, Adams located a Ford pickup truck that had damage to the driver’s

side mirror. Turley told Adams that B.O. was present during all incidents of vandalism – that

Turley, B.O., and J.R. (another juvenile) were together the entirety of the evening.

       Turley testified that on December 31, 2018, he was cruising the back roads of Jamesport

with B.O. and J.R. J.R. was driving, B.O. was in the front passenger seat, and Turley was in the

back seat behind B.O. At some point, J.R. and B.O. used a crowbar and took turns bashing the

driver’s side windows of a white pickup truck. Turley believed the white truck belonged to

someone he had attended school with whose name started with a “J.” Later, “they started bashing

more by the bar and to the tavern,” including a minivan. While near the tavern, B.O. tried to hit

the van with the crowbar while hanging from the window of the moving vehicle. B.O. dropped

the crowbar and they stopped the car to retrieve it. J.R. hit the front windshield of the van with

the crowbar as he ran back to the car. The trio drove on and went down a back street by a church,

with B.O. hanging out the window hitting side mirrors on cars. Turley testified that he told J.R.

and B.O. several times that he wanted to go home. Turley testified that, the following day, Turley

went to B.O.’s home to advise B.O.’s mother about the vandalism, and was “grabbed up by his



                                                12
stepdad and I had stitches in my arms.” Turley stated that he then contacted the police about B.O.’s

stepfather’s assault as well as B.O.’s actions the previous evening.

        B.O. argues on appeal that the Juvenile Office failed to present evidence sufficient to prove,

beyond a reasonable doubt, that B.O. took part in property damage to the white pickup truck

belonging to Roni Betchel and the minivan belonging to Tina Ableidinger. We disagree.

        As relevant to B.O.’s appeal, the Juvenile Office’s Motion to Modify alleged that B.O., in

concert with others, committed the Class B Misdemeanor of Property Damage in the Second

Degree, if he were an adult, by knowingly damaging the property of another by using a crowbar

to break the front and rear driver side windows of a 2001 Chevrolet 2500 pickup owned by Roni

Betchel. Further, that B.O., in concert with others, similarly damaged Tina Ableidinger’s van. The

damage allegedly occurred on December 31, 2018.7

        The evidence at trial was that B.O. used a crowbar to break the windows of a white pickup

on December 31, 2018, in Jamesport, Missouri. Turley testified that B.O. was responsible for

breaking the windows in the “white Chevy.” On January 1, 2019, police were dispatched to victim

reports of property damage to vehicles; police were called to investigate the broken windows of

Roni Betchel’s white Chevrolet pickup, located on Forest Street, and the broken windshield and

passenger side front headlight assembly of Jim Harrington’s minivan, located near Jamesport

Tavern. Reasonable inferences can be drawn from this evidence that B.O., either alone or with




        7
          B.O. does not dispute that the Juvenile Office presented sufficient evidence to prove B.O. participated in
property damage to Jim Harrington’s minivan.


                                                        13
others, knowingly damaged Roni Betchel’s white Chevrolet pickup.8

         Regarding Tina Ableidinger’s minivan, Deputy Adams was not even aware of damage to

Ableidinger’s minivan until Turley contacted him. Adams followed up on Turley’s statements

which led him to two more damaged vehicles, including Tina Ableidinger’s minivan. At that time,

Ableidinger had not yet reported damage to her vehicle. It can reasonably be inferred from this

evidence that, because police only discovered the damage to Ableidinger’s minivan after Turley

reported B.O.’s behaviors to police and provided specific information regarding specific vehicle

damage inflicted by B.O. and J.R., leading police to discover Ableidinger’s damaged minivan, that

B.O. took part in the damage to that minivan.

         We find sufficient evidence from which a reasonable fact-finder could conclude that the

Juvenile Office proved, beyond a reasonable doubt, that on December 31, 2018, in concert with

others, B.O. committed the Class B Misdemeanors of Property Damage in the Second Degree, if

he were an adult, by knowingly damaging Roni Betchel’s and Tina Abliedinger’s vehicles.

         B.O.’s second and third points on appeal are denied.

                                                   Conclusion

         We conclude that sufficient evidence supported the court’s Judgment finding B.O.

committed the Class B Misdemeanors of Property Damage in the Second Degree, if he were an

adult, by knowingly damaging Roni Betchel and Tina Abliedinger’s vehicles. We conclude the

circuit court erred in failing to conduct a dispositional hearing in compliance with Rules 128.02

and 128.03 after adjudicating the Juvenile Office’s Motion to Modify. We reverse the circuit



         8
          The court was free to disregard Turley’s belief that the white Chevy pickup belonged to an individual Turley
had attended school with whose name started with “J.”


                                                         14
court’s Judgment on this ground only and remand for a dispositional hearing in compliance with

Rules 128.02 and 128.03.




                                                  Anthony Rex Gabbert, Judge


All concur.




                                             15
