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In re Sercl

Court of Appeals of Missouri, Southern District, Second Division

July 22, 2015

In the Interest of DARYL SERCL, Petitioner-Respondent,
v.
DIRECTOR, DEPARTMENT OF SOCIAL 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.

For Appellant Director: Chris Koster, Attorney General, and Gary L. Gardner, Assistant Attorney General, Jefferson City, Missouri.

For Respondent: Charles T. Rouse, Salem, Missouri.

NANCY STEFFEN RAHMEYER, J. -- concurs. DON E. BURRELL, J. -- concurs.

OPINION

Page 86

GARY W. LYNCH, J.

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.

Standard of Review

Sercl sought the trial court's de novo judicial review of the Division's decision in accordance with the provisions 

Page 87

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 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 ...


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