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S.N.L. v. A.B.

Court of Appeals of Missouri, Eastern District, First Division

December 26, 2017

S.N.L., Petitioner/Appellant,
v.
A.B., Respondent/Respondent.

         Appeal from the Circuit Court of Cape Girardeau County

          Honorable Gary A. Kamp

          SHERRI B. SULLIVAN, J

         Introduction

         S.N.L. (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.

         Factual and Procedural Background

         Appellant brought this action under the Child Protective Orders Act (CPOA), Sections 455.500 through 455.538.[1] 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.

         Points on Appeal

         In her 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 Section 455.504(2).

         In her 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.

         Standard of Review

         As with 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).

         Discussion

         We discuss Point II first.

         Point II

         Appellant 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.

         Appellant 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, insurmountable.

         Section 455.500, enacted in 1987 and current today without any amendments is titled "Citation of law" and provides:

         Sections 455.500 to 455.538 shall be known and may be cited as the "Child Protection Orders Act."

         Section 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."

         In 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 ...


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