Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of Cape Girardeau County
Honorable Gary A. Kamp
B. SULLIVAN, J
(Appellant) appeals from the Order and Judgment of the trial
court denying her request for a child protection order and
assessing guardian ad litem (GAL) fees in the amount of $200
against her. We affirm in part and reverse in part.
and Procedural Background
brought this action under the Child Protective Orders Act
(CPOA), Sections 455.500 through 455.538. She alleged in
her petition generally that her son, a child of eight years
of age (Child), has been stalked, followed, and photographed
by A.B. (Respondent). She further alleged Respondent was
placing himself in a position to observe Child for no
legitimate reason, following and photographing Child, and
posting photographs of Child on the internet. An ex parte
order of protection was entered. Following a hearing, a full
order of protection was denied. The trial court ordered fees
to the GAL, and assessed those, along with all costs, to
Appellant. This appeal follows.
first point, Appellant alleges the trial court erred in
assessing the costs of this action, including GAL fees, and
taxing them against Appellant because an award of costs,
including GAL fees, shall not be assessed against a
petitioner in a CPOA proceeding as it is prohibited by
second point, Appellant contends the trial court erred in
finding insufficient evidence was adduced for an order of
child protection because it applied an inappropriate standard
requiring proof Child subjectively feared physical harm,
which is not a requirement of the CPOA.
other court-tried cases, the judgment of the trial court will
be affirmed 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.T.H., 37 S.W.3d 423, 426 (Mo.App. S.D. 2001);
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).
The appellate court will defer to the trial court's
determinations relating to credibility. A.T.H., 37
S.W.3d at 426; Wallace v. Van Pelt, 969 S.W.2d 380,
383 (Mo.App. W.D. 1998).
discuss Point II first.
claims the trial court found she must show Respondent caused
Child to subjectively fear physical harm and that a
reasonable person under the same circumstances also would
have feared physical harm. Appellant asserts that in support,
the trial court cited M.D.L. v. S.C.E., 391 S.W.3d
525 (Mo.App. E.D. 2013), an action under the Adult Abuse Act
(AAA), Sections 455.010 through 455.090. Appellant argues
actions under the AAA generally have no application to
actions brought under the CPOA. Appellant maintains a full
order of protection under the CPOA is appropriate when a
child has been subject to stalking by any person, Section
455.505, and "'stalking' is when any person
purposely engages in an unwanted course of conduct that
causes alarm to another person, or a person who resides
together in the same household with the person seeking
the order of protection when it is reasonable in that
person's situation to have been alarmed by the
conduct." Section 455.010(14) (emphasis added).
Appellant maintains the reason the CPOA allows for orders to
be entered to protect a child under the age of seventeen and
does not require alarm to the child is because many children
of tender years are not capable of recognizing a dangerous
situation or of giving testimony concerning it. Therefore,
Appellant concludes, to require a subjective fear of the
child as an essential element would preclude relief in some
cases where it is most appropriate.
admits she has not been able to find any applicable case law
in which this point has been raised, but suggests a
requirement for subjective alarm in a child would be
completely at odds with the purpose of the statute. Appellant
concludes that in using such a standard, the trial court
creates a hurdle which is, for all intents and purposes,
455.500, enacted in 1987 and current today without any
amendments is titled "Citation of law" and
455.500 to 455.538 shall be known and may be cited as the
"Child Protection Orders Act."
455.501(10), enacted in 1987, defined the
"stalking" of children as:
purposely and repeatedly harassing or following with the
intent of harassing a child. As used in this subdivision,
"harassing" means engaging in a course of conduct
directed at a specific child that serves no legitimate
purpose, that would cause a reasonable adult to believe the
child would suffer substantial emotional distress. As used in
this subdivision, "course of conduct" means a
pattern of conduct composed of a series of acts over a period
of time, however short, evidencing a continuity of purpose.
Constitutionally protected activity is not included within
the meaning of "course of conduct."
2011, Section 455.501, containing definitions applicable in
the CPOA, was repealed by L.2011, S.B. No. 320, § A,
which also rewrote Section 455.010 to include definitions
applicable to child protection orders as well as adult
protective orders. Consequently, definitions applicable to
child protection orders are now contained in ...