In the Missouri Court of Appeals 

Eastern District

SOUTHERN DIVISION

) No. ED102737

)

In the Interest of L.A.B. ) Appeal from the Circuit Court

) of St. Francois County

)

)

) Hon. Sandy Martinez

)

)

) FILED: December 29, 2015

OPINION

The Department of Social Services, Children’s Division, appeals the order of the 

juvenile division of the circuit court of St. Francois County instructing Children’s 

Division to designate a person to make end-of-life medical decisions for a child in the 

Division’s custody. We reverse.

Background

Baby was born August 2014 and taken into protective custody due to Mother’s 

heroin addiction. Paternity was not established, and Mother’s parents declined custody. 

Children’s Division placed Baby in foster care, where she thrived until November 2014 

when the Division placed her with Mother’s cousin and her husband. Twenty-seven days 

later, Baby was admitted to Children’s Hospital with severe neurological injury and signs 

of non-accidental trauma. Doctors later determined that she was brain-dead and 
2

requested a do-not-resuscitate (DNR) order. All parties - Mother, Children’s Division, 

the juvenile officer, and the guardian ad litem - agreed that Mother should make medical 

decisions for Baby, including signing a DNR order and terminating life support. At a

hearing December 2nd, the parties presented their stipulation to the Juvenile Court for

approval. The court declined to grant authority directly to Mother and instead ordered 

Children’s Division to designate the appropriate person, whether Mother or someone 

else. Following the hearing and with the Division’s permission, Mother went to the 

hospital and signed the requisite forms to discontinue life-sustaining support. Baby died 

shortly thereafter.

Children’s Division now appeals the Juvenile Court’s order, asserting that 

Children’s Division lacks authority to make extraordinary medical decisions on behalf of 

a child in its custody, as such authority rests with the Juvenile Court.

Appellate Review

As a threshold matter, Mother moved to dismiss this appeal as moot in light of 

Baby’s death. But courts make an exception to mootness when the issue has general 

public interest and importance, is likely to recur, and will otherwise evade appellate 

review. In re J.L.R., 257 S.W.3d 163, 166 (Mo. App. W.D. 2008). To establish that such 

is the case here, Children’s Division submitted to this court: (1) a nearly identical order

issued by this Juvenile Court in 2013 directing the Division to designate a party to make 

medical decisions for another child in the Division’s custody, (2) an order issued by 

another Missouri circuit court in 2007 authorizing a mother to make extraordinary 

decisions on behalf of her child in the Division’s custody, and (3) three orders issued by 

other Missouri circuit courts between 2010 and 2015 in which the court authorized the 
3

termination of life support for children in the Division’s custody. These orders persuade 

us that this issue is of public importance and likely to recur. We therefore deny Mother’s 

motion to dismiss and exercise our discretion to review the merits.

Our standard of review for decisions in juvenile proceedings is the same as for 

any court-tried civil case. In re T.B.L.T., 367 S.W.3d 663, 664 (Mo. App. E.D. 2012). 

We will affirm the trial court's judgment unless there is no substantial evidence to support 

it, the decision is against the weight of the evidence, or it erroneously declares or applies 

the law. Id. at 665, citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The 

Division contends that the juvenile court erred as a matter of law, so our review is de 

novo. Missouri Dept. of Social Services, Children’s Div. v. B.T.W., 422 S.W.3d 381, 387 

(Mo. App. W.D. 2013).

Discussion

Children’s Division asserts that the Juvenile Court erred by requiring the Division 

to make extraordinary medical decisions for Baby because that authority rests with the 

Juvenile Court. 

In support of its position, Children’s Division cites the statutory framework 

establishing its limited authority. Most notably, Children’s Division has the power “to 

accept for social services and care homeless, dependent, or neglected children in all 

counties where legal custody is vested in the children’s division by the juvenile court 

where the juvenile court has acquired jurisdiction.”1§207.020.1(17). “Legal custody”

 

1 References to the juvenile court’s “jurisdiction” should be interpreted to articulate its 

“authority,” merely setting statutory limits on remedies or relief that the court may grant. K.H. v. 

State, 403 S.W.3d 720, 723 (Mo. App. W.D. 2013) citing J.C.W. ex rel. Webb v. Wyciskalla, 275 

S.W.3d 249, 253 (Mo. 2009). 
4

means the right to the care, custody and control of a child and the duty to provide food, 

clothing, shelter, ordinary medical care, education, treatment, and discipline of a child.

§211.021.1(4); Rule 110.04(16). (emphasis added) Given this definition and invoking

the maxim expressio unius est exclusio alterius (the expression or inclusion of one thing 

implies the exclusion of the other), Children’s Division contends that its authority to 

make medical decisions for a child in its custody is limited to ordinary decisions and 

excludes extraordinary decisions such as that affecting Baby here.

The Juvenile Officer responds that Juvenile Court did not err in requiring the 

Division to make decisions for Baby because, as legal custodian, the Division routinely 

manages the medical circumstances of children in its care and thus is better suited for the 

responsibility. 

Both parties stray from the relevant issue in debating whether Children’s Division

has the statutory authority to make extraordinary medical decisions. We need not opine 

on the precise scope of Children’s Division’s authority or where the line is drawn 

between ordinary and extraordinary care. Rather, the narrow question before us on the 

present facts is whether the Juvenile Court abdicated its responsibility by directing 

Children’s Division to designate a decision-maker?

2

 We hold that it did.

The juvenile code “is rooted in the concept of parens patriae, that the state will 

supplant the natural parents when they fail in that role ... . This parens patriae

relationship exists between the child and the juvenile court.” J. D. H. v. Juvenile Court of 

St. Louis Cnty., 508 S.W.2d 497, 500 (Mo. 1974) (emphasis added); In Interest of R L C, 

Jr., 967 S.W.2d 674, 677 (Mo. App. S.D. 1998). 

 

2 Children’s Division operates under the aegis of the Department of Social Services and thus acts 

on behalf of the executive branch of government. 
5

For example, the aforementioned statute empowering Children’s Division to 

accept children into care when the juvenile court confers legal custody (§207.020.17) 

further contemplates that, if a child in custody needs care or treatment that the Division 

cannot provide, then the Division can ask the court to relieve it of custody. The court 

must act swiftly and “shall be vested with full power to make such disposition of the 

child as is authorized by law.” §207.020.1(17)(a).3 As another example, §210.166,

governing actions for medical neglect, permits Children’s Division to file a petition and 

empowers the circuit court to ensure that medical services are provided to the child when 

the child’s health requires it.”4 In short, while the Division’s authority is limited, the 

court’s authority is broad.

The primacy of the court’s parens patriae responsibility is evident throughout 

Missouri statutes and case law. The General Assembly has declared that, as a matter of 

public policy, the paramount concern is the best interest of the child. See e.g., §211.011 

(state’s child welfare policy is best interests of the child); §211.443 (statutes regarding 

 

3 The full text of §207.020.1(17)(a) states: The children's division may, at any time, if it finds the 

child placed in its custody is in need of care or treatment other than that which it can provide, 

apply to the court which placed such child for an order relieving it of custody of such child. The 

court must make a determination within ten days and the court shall be vested with full power to 

make such disposition of the child as is authorized by law, including continued custody.

4

Section 210.166 authorizes Children’s Division, juvenile officers, physicians, hospitals, and 

other health care providers to bring an action alleging medical neglect by a child’s parents or 

guardians and to obtain a court order authorizing the requisite care. The statute states in pertinent 

part: “A petition filed under this section shall be expedited by the court involved in every manner 

practicable, including, but not limited to, giving such petition priority over all other matters on the 

court's docket and holding a hearing, at which the parent, guardian or other person having 

authority to consent to the medical care in question shall, after being notified thereof, be given the 

opportunity to be heard, and issuing a ruling as expeditiously as necessary when the child's 

condition is subject to immediate deterioration. Any circuit or associate circuit judge of this state 

shall have the authority to ensure that medical services are provided to the child when the child's 

health requires it.”
6

termination of parental rights to be construed to promote best interests of the child). 

Missouri law leaves no doubt that the court is the ultimate authority on that question. See 

e.g., §452.375.2 (court shall determine custody in best interests of the child); In re 

Marriage of Hendrix, 183 S.W.3d 582, 591 (Mo. 2006) (court, not parties, determines

what custody arrangement is in the best interests of the children.); In re Q.A.H., 426 

S.W.3d 7, 12 (Mo. 2014) (courts must determine whether termination of parental rights is 

in the best interests of the child). 

By analogy, in the probate context, a guardian appointed by the probate court has 

statutory authority to make end-of-life decisions on behalf of the ward. Matter of 

Warren, 858 S.W.2d 263 (Mo. App. W.D. 1993). The probate court must determine the 

proper guardian for incapacitated persons notwithstanding the recommendation of the 

Department of Mental Health.

5

See e.g., Prost v. Schuffman, 202 S.W.3d 41 (Mo. App. 

E.D.) (probate court obligated to consider suitability of family member as potential 

guardian for disabled adult notwithstanding DMH request for appointment of public 

administrator). Missouri law also recognizes the probate court’s authority to appoint a 

guardian for children who are under the “parallel” jurisdiction of the juvenile court 

pending termination of parental rights and adoption. In re J.M.J., 404 S.W.3d 423 (Mo. 

W.D. 2013).

 

5 Like the Department of Social Services, the Department of Mental Health is also part of the 

executive branch.
7

Simply put, the judiciary is vested with the responsibility to authorize end-of-life 

medical decisions on behalf of and in the best interests of children under its jurisdiction.

6

The court may not abdicate or delegate that duty.

Conclusion

The Juvenile Court erred in ordering Children’s Division to appoint a person to 

direct Baby’s end-of-life care. The trial court’s judgment is reversed. 

______________________________________

Lisa Van Amburg, Chief Judge

Gary M. Gaertner, Jr., J., and 

Philip M. Hess, J., concur.

 

6 Of course, absent termination of parental rights, subrogation of parental authority in these

circumstances is subject to the requirements of due process, particularly notice and an opportunity 

to be heard. Due process was satisfied here in that Mother participated in the proceedings, and 

there was no evidence in the record suggesting that Mother was incapable of making the decision.