author: HAROLD L. LOWENSTEIN, Judge.

text:
    Timothy M. WALTERS, Respondent, v. Regena WALTERS, Appellant.
    No. WD 64633.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 20, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      James A. Rust, Richmond, MO, for appellant.

      Kay Madden, Kansas City, MO, for respondent.
    Before EDWIN H. SMITH, P.J., LOWENSTEIN and HOWARD, JJ.
   HAROLD L. LOWENSTEIN, Judge.

Regena Walters (Mother) appeals the trial court’s judgment, holding Mother in civil contempt and ordering an abatement in child support from Tim Walters (Father) for Mother’s violation of the Temporary Order of Visitation (temporary order) dated February 4, 2004, and the Judgment of Dissolution of Marriage (dissolution decree) dated July 23, 2004. Mother raises three points on appeal. First, she argues the trial court erred because the judgment was against the weight of the evidence. Second, she contends that the court erred in abating child support because such abatement amounts to an impermissible fine. Third, Mother claims the trial court erred by not providing in its order how she could purge herself from the contempt and for abating Father’s child support to rectify the trial court’s imposition of two days in jail for her contempt.

This court affirms the trial court’s judgment. The trial court did not abuse its discretion by holding Mother in civil contempt. Furthermore, the trial court did not abuse its discretion by ordering an abatement of child support because it has authority from section 452.340.7 to abate child support when a parent fads to provide legal custody or court ordered visitation. Finally, while the trial court may have erred when it failed to state a means of purging the two-day jail sentence, the issue is moot because Mother already served her sentence.

I. Factual and Procedural Background

Mother and Father were married in August 1989 and separated in February 2001. They had three children: Ryan, 16, Mollie, 14, and Conner, 11. Father filed for divorce on January 24, 2003. The court entered a temporary order of visitation on February 4, 2003, providing Father with parenting time on alternating weekends beginning at 7:00 a.m. on Saturday to 9:00 p.m. on Sunday. On April 1, 2004, the parties appeared in court and verbally stipulated to the terms and conditions of the dissolution decree, which left unchanged the alternating weekends schedule, but added from 3:00 p.m. on Monday to 9:00 a.m. on Tuesday to Father’s parenting time. In addition, the children were to spend three to four weeks (depending on the year) in the summer with Father and alternating holidays. Mother and Father were to exchange custody at Hardee’s restaurant on Noland Road, except on Tuesday mornings when Father must bring the children to Mother’s home.

On June 15, 2004, Father filed a Motion to Enforce a Verbal Agreement, Motion for Compensatory Visitation and Motion for Attorney Fees, alleging that Mother had interfered with Father’s visitation when she did not deliver the children for visitation on two separate weekends. Father requested compensatory visitation, but was denied by the court.

The parties’ divorce became final on July 23, 2004. Both parents were designated as joint legal custodians with Mother named as sole legal custodian. The court approved and adopted the parties’ Parenting Plan.

Father brought contempt proceedings against Mother in July 2004, alleging that she failed to comply with the temporary order and dissolution decree. The court entered a Show Cause Order on July 13, 2004, and again on July 22, 2004. The court heard the matter on August 6, 2004, held Mother in civil contempt, sentenced Mother to two days in county jail, ordered Mother to pay Father’s and the Guardian Ad Litem’s attorney fees, and abated Father’s child support obligation, effective from July 1, 2004, until visitation begins. At the hearing for contempt, the parties stipulated that Father had not received twenty-five days of parenting time since April 1, 2004. Additional facts are discussed as the opinion dictates.

II. STANDARD OP REVIEW

“A trial court’s judgment in a civil contempt proceeding will not be disturbed on appeal absent a clear abuse of discretion.” Timmons v. Timmons, 139 S.W.3d 625, 628 (Mo.App.2004). This court will affirm the judgment unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the decision erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

III. Legal Analysis

A. Weight of the Evidence

An appellate court should set aside a judgment as “against the weight of the evidence” if it firmly believes that the judgment is wrong. Miers v. Miers, 53 S.W.3d 592, 595 (Mo.App.2001). Weight of the evidence refers to weight in probative value, not quantity or the amount of evidence. Buschardt v. Jones, 998 S.W.2d 791, 796 (Mo.App.1999). The weight of evidence is not determined by mathematics, but on its effect in inducing belief. Id. When conflicting evidence exists, the trial court has the discretion to determine the credibility of witnesses. Love v. Love, 75 S.W.3d 747, 754 (Mo.App.2002).

In the case at bar, the court found the mother “continuously and willfully failed and refused to make the children available for their parenting time with [Father], Said failure is deliberate, intentional, and contumacious and constitutes contempt of this Court.” Mother argues that the trial court erred in holding her in contempt of court because such a finding is against the weight of the evidence when the minor children, due to no fault of Mother’s, refused to attend visitation with Father.

A party alleging contempt establishes a prima facie case for civil contempt when the party proves: (1) the contem-nor’s obligation to perform an action as required by the decree; and (2) the con-temnor’s failure to meet the obligation. Love at 759 (citing Lyons v. Sloop, 40 S.W.3d 1, 10 (Mo.App.2001)). The alleged contemnor then has the burden of proving that person’s failure to act was not due to her own intentional and contumacious conduct. Id. at 759-60.

Under the temporary order and the dissolution decree, which was stipulated to on April 1, 2004, Mother was obligated to deliver the children to Father for his parenting time, among other times, on alternating weekends, on Monday evenings and several weeks in the summer. Mother failed to meet her obligation when she failed to deliver the children on the weekends of May 22-23, June 5-6, and July 3-4, and when she retrieved the children three days early from the scheduled week-long visit in June. In addition, Mother admitted to refusing to communicate with Father, and instead had Ryan call his father when Ryan and the children refused to attend visitation. The dissolution decree specifically requires that “[t]he parties shall communicate directly with each other and not use a child as a messenger.” Significantly, Mother and Father stipulated at the contempt hearing that Father missed twenty-five days of visitation. The weight of the evidence shows that Father met his burden.

Mother argues that her conduct was not intentional or contumacious by failing to deliver the children for Father’s parenting time. Instead, she argues, the failure resulted from the strong will of her children when they refused to visit. The trial court found that Mother failed to present sufficient evidence that she did not willfully and intentionally disobey the court’s temporary order.

Here, the evidence shows that Mother’s failure to deliver the children was intentional and contumacious. Mother admitted to not delivering the children to Father for three separate scheduled weekend visits — in clear violation of the temporary order and stipulated dissolution decree. In fact, Mother admits in her brief that Father failed to receive all of his parenting time. Similarly, Mother called at 6:00 a.m. on Saturday morning before the children were due to arrive at Father’s house at 7:00 a.m., and changed plans, despite knowing that she was going to have to make the change several days in advance. Because Father works at a farmer’s market on Saturday mornings, he was unable to accommodate Mother’s change "with such late notice. As a result, Father could not meet the children for their scheduled visit.

Mother argues that the children refused to go. However, the evidence relied on by the finder of fact shows that Mother implicitly and explicitly encouraged the children’s disrespect of their father. The record is plentiful with instances of Mother’s emasculation of Father’s authority with the children and his attempts to discipline them. The children vandalized Father’s house on two separate occasions in response to the Father’s removal of video game, computer, and television privileges. The children tore the bedding from the bed, wrote the words “Rest in Peace,” “Red Rum,” “I hate this place,” and “I miss my dogs” on the walls of the bedroom. The children damaged the window screens and a table in the bedroom and destroyed board games. After learning of such destruction, Mother acknowledged that she did not discipline the children, essentially claiming that disciplining the children for the vandalism was not her responsibility because it “was not [her] house.” Also, she did not encourage the children to apologize to Father for the vandalism.

Nor did Mother encourage an apology from Conner to his father when Conner, the youngest, stole $10 from Father. Instead, Mother returned it to Father via certified mail. Furthermore, when the children testified at the contempt hearing, they referred to their father by his first name.

In a further effort to undermine Father’s authority, Mother purchased the children portable C.D. players in response to an incident wherein Ryan and Father had an argument when Ryan turned Father’s car radio to an unreasonable volume while Father was driving on Interstate 70. Ryan refused to turn the volume down. Father testified that Ryan “glare[d] at me and [held] his hand over [the radio], just waiting for me to smack his hand.” Ryan’s conduct necessitated that Father remove the radio fuse in the vehicle when the children rode with him.

In conclusion, the weight of the evidence indicates the trial court did not err by holding Mother in contempt of court. The record shows Mother failed to meet her obligation to deliver the children for Father’s scheduled parenting time and that Mother faded to meet her burden to prove that her conduct was not willful and intentional. Mother’s brief repeatedly states that the children, and not Mother, are to blame for not visiting their father. Indeed, the record shows that the children refused to go to Father’s for visitation. However, Mother’s implicit encouragement to disrespect Father precedes the children’s disrespect. As such, the trial court did not err in holding Mother in contempt of court. Point denied.

B. Child Support Abatement

Mother argues that the trial court erred when it ordered Father to abate child support because such abatement constitutes a fine. Mother looks to section 452.365 to argue that the court erred when it abated Father’s child support obligation. Section 452.365provides in relevant part that the obligation to make child support payments is not automatically suspended when the other party violates a provision of the decree or temporary order.

Section 452.340.7 provides that a court may abate past or future obligation of child support if it finds that a parent has, ■without good cause, failed to provide visitation or physical or legal custody. Contrary to Mother’s suggestion, section 452.340.7 does not require a party to request abatement. Rather, section 452.340.7 requires a party to request payment of attorney’s fees.

Mother’s suggestion that section 452.365somehow “trumps” section 452.340 is incorrect. A careful reading of section 452.365shows a preclusion of self-executing abatement. Section 452.340 authorizes a court to order abatement of any past or future obligation of child support, in whole or in part, upon the showing that a parent failed to provide visitation. Therefore, the trial court had statutory authority to abate Father’s child support obligation upon finding that Mother was in contempt of the temporary order and dissolution decree, and the judgment awarding Father abatement of his child support obligation did not constitute a “fine.”

Mother next argues that Father failed to prove that the abatement was substantially related to the injury suffered by Father, and, therefore, the trial court erred by abating the child support. This argument has no merit. First, Mother bases this argument on the premise that the child support abatement is a fine. A demonstration of how the abatement is substantially related to the injury is required if indeed a fine is imposed. See Wilson v. Sullivan, 922 S.W.2d 835, 838 (Mo.App.1996). This court has already determined that the abatement was properly authorized by section 452.340.7 and is not a fine. Second, Mother cites Wilson v. Sullivan to support this requirement. This case is easily distinguished. In Wilson, the trial court assessed the mother a lump sum $10,000 fine for her civil contempt. Id. at 838. Notably, Wilson did not involve abatement of child support. See id. The Eastern District deemed the lump sum fine to be impermissible because the father neither pled nor presented evidence of damages related to the contempt and the contempt related to a dissolution decree, which was later rendered unenforceable. Id. at 839. Point II denied.

C. Purging Provision

Mother argues in her final point that the trial court erred when it failed to provide in its Judgment of Contempt and Order of Commitment a means of purging Mother from the contempt order. Without the benefit of a citation, Mother encourages this court to reverse the trial court’s award of child support abatement as a remedy for her improperly imposed jail time. Implicit in this argument is Mother’s recognition that the two-day jail sentence, if improper, is moot. The trial court characterized Mother’s contempt as civil. Without making the determination, because the issue is moot as analyzed below, this court notes that the two-day jail sentence imposed by the trial court is reminiscent of criminal contempt. A criminal contempt conviction is not renewable by this court. Teefey v. Teefey, 533 S.W.2d 563, 565 (Mo. banc 1976).

In order for a contemnor to be incarcerated for civil contempt, the contempt judgment and commitment order must contain facts and circumstances upon which the contemnor was so adjudged. Simmons v. Megerman, 742 S.W.2d 202, 205 (Mo.App.1987). “A civil contempt is not fully adjudged unless the order of commitment contains a recital of the particular facts and circumstances which constitute the contempt and a declaration of the conditions to be met to purge the contempt and so be free of the commitment.” Id. Neither the judgment nor the commitment order provided any means to purge with respect to the two-day jail sentence. While this is problematic, the issue is moot.

The mootness of a controversy is a threshold question in any appellate review. Belton v. Moore, 112 S.W.3d 1, 5 (Mo.App.2003). Because mootness implicates the justiciability of a case, the appellate court reviews for mootness sua sponte. Id. When an event occurs that makes a decision on appeal unnecessary or makes it impossible for the appellate court to grant effectual relief, the appeal is moot and generally should be dismissed. Id. at 5-6.

Mother already served her two-day sentence in the Lafayette County Department of Corrections, which began immediately after the contempt proceeding ended. This court cannot now grant any effectual relief as Mother does not remain in jail. The law provides a mechanism to challenge an unlawful confinement in the form of a writ of habeas corpus. Mo.Rev. Stat. § 532.010 (2000); State ex rel. Tannenbaum v. Clark, 838 S.W.2d 26, 28 (Mo.App.1992). Instead, Mother chose to serve her sentence. Therefore, Point III is moot.

VI. Conclusion

In light of the above analysis, this court affirms the trial court’s judgment.

All concur.

      . Although the trial court did not enter the dissolution decree until July 23, 2004, the parties stipulated to its terms and conditions on April 1, 2004.

      . The temporary order further provided that Father have the following parenting time:
      February 4 and February 11, 2004, from 3:00 p.m. to 6:00 p.m. and March 30, 2004, which is Father's birthday. Also, the court ordered Father and the children to continue family counseling.

      . Mother states in her brief, "Admittedly the man [Father] did not get all of his visitation up to the point the children refused to go, [sic] she was punished for that alleged contempt of the temporary order.”

      . Mother's brief states "Behind the surface of this case is a fact of importance, these kids were raised in an abusive alcoholic household, [Father] was the abuser, [sic] he sexually abused their sister (an older child named M.W. had been adopted to the parties and was emancipated [sic] she was inadvertently omitted from the court's decree), these kids knew this, [sic] they had been abused or seen their brother abused by [Father].... These children were the victims of abuse, but because [Father] had allegedly quit drinking, and because he was never convicted of sexual abuse, these kids had to go see him." Mother provides absolutely no citation to the record for this information. S.Ct. Rule 84.04(i) (2005) ("All statements of fact and argument shall have specific page references to the legal file or the transcript.”)(emphasis added).

      . All references are to Mo.Rev.Stat. (2000).

      . The last sentence of section 452.340.7 provides, "The court shall also award, if requested, and for good cause shown, reasonable expenses, attorney's fees and court costs incurred by the prevailing party.” (emphasis added). Mother did not challenge the issue of Father’s request or lack of request of payment of attorney's fees. Her point relied on stated, "The trial court erred in holding [Mother] in contempt of court and punishing her by abating the future child support because the court has entered an order which is in effect a fine and in that there was no substantial evidence that a fine in the amount of $11,208 per year was substantially related to the injury suffered by [Father].” An argument not set out in the point relied on but merely referred to in the argument portion of the brief does not comply with the requirements of Mo. Sup.Ct. R. 84.04(d) and the point is considered abandoned in the appellate court. Brizendine v. Conrad, 71 S.W.3d 587, 593 (Mo. banc 2002).

      . Contempt is classified as civil or criminal with each class having two subcategories of direct or indirect. State ex. rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). Civil contempt is intended to benefit a party for whom an order, judgment, or decree was entered. Id. Its purpose is to coerce compliance with the relief granted. Id. Criminal contempt, on the other hand, is punitive in nature and acts to protect, preserve, and vindicate the authority and dignity of the judicial system and to deter future defiance. Id. The distinction between criminal and civil contempt is reflected in the content of the judgment, whether the remedy is coercive or punitive. Id.

      . The judgment did provide a means to purge the child support abatement, when it stated that the abatement "shall remain abated in full, until such time as [Father's] parenting time resumes.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Plaintiff/Respondent, v. James HERRON, Defendant/Appellant.
    No. ED 85554.
    Missouri Court of Appeals, Eastern District, Division Three.
    Nov. 1, 2005.
    Application for Transfer to Supreme Court Denied Dec. 7, 2005.
    Application for Transfer Denied Jan. 31, 2006.
    Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Gary E. Brotherton, Legal Writes, LLC, Columbia, MO, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant, James Herron, appeals from the judgment entered after a bench trial finding him guilty of murder in the second degree, in violation of section 565.021 RSMo (2000) (Count I), two counts of robbery in the first degree, in violation of section 569.020 RSMo (2000) (Counts III and V), and three counts of armed criminal action, in violation of section 571.015 RSMo (2000) (Counts II, IV, and VI). The trial court found defendant to be a prior and persistent offender and sentenced him to life in prison on each of the six counts, Counts I, III, IV, V, and VI to be served concurrently, and Count II to be served consecutively to Count I.

No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).


author: KENNETH M. ROMINES, Judge.

text:
    Carl WICKLUND, Plaintiff/Respondent, v. Frans HANDOYO, M.D. and Binwant Singh, M.D., Defendants/Appellants.
    No. ED 85595.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      J. Thaddeus Eckenrode, Seibel & Eek-enrode, P.C., St. Louis, MO, for appellant.
    David M. Zevan, Kevin J. Davidson, David M. Zevan and Associates, P.C., St. Louis, MO, for respondent.
   KENNETH M. ROMINES, Judge.

Defendants/Appellants Drs. Frans Han-doyo, M.D. and Binwant Singh, M.D. (collectively “Appellants”), appeal from the trial court’s denial of their post-trial motions for a directed verdict and judgment notwithstanding the verdict (“JNOV”), or in the alternative, for a new trial, after a jury found them liable in negligence for the death of Plaintiff/Respondent Carl Wick-lund’s (“Mr. Wicklund” or “Plaintiff’) son, David Wicklund (“David”), and awarded Mr. Wicklund $675,000. The trial court entered its judgment on 2 September 2002.

FACTUAL BACKGROUND

The evidenced adduced at trial, viewed in the light most favorable to the verdict, reveals that on 28 June 1999, David was admitted to SouthPointe Hospital (“South-Pointe”) for psychiatric treatment. While under the care of SouthPointe, David was also treated for abdominal pain, and several medical tests were run to determine the cause of the problem. During his treatment at SouthPointe, David’s medical condition worsened, and he was admitted to the intensive care unit on 2 July 1999. Subsequent tests revealed that David had a major colon infection, and he was placed on a respirator that evening. Nonetheless, David’s condition continued to worsen, and he died approximately five hours later.

In April of 2001, David’s parents, Carl and Vivian Wicklund, filed a medical malpractice and wrongful death action against several defendants involved in the medical treatment of their son during his stay at SouthPointe, including Drs. Handoyo and Singh. The Wicklunds subsequently amended their petition, and named several additional defendants in the action. In particular, the Wicklunds alleged that the doctors involved in diagnosing and treating David’s medical symptoms failed to adequately monitor David’s abdominal condition while he was under their care. During the course of discovery, however, several of the original defendants were dismissed from the case, and at the time of trial, only Drs. Handoyo and Singh remained.

At trial, Mr. Wicklund presented the expert testimony of Dr. Mark Cooperman (“Dr. Cooperman”), a board certified physician in general surgery. Dr. Cooperman offered testimony, first, regarding whether Drs. Handoyo and Singh deviated from the proper standard of care in their treatment of David, and second, whether them alleged misdiagnosis caused David’s death. Dr. Cooperman testified that both doctors’ treatment fell below the proper standard of care. In particular, Dr. Cooperman testified that since David’s colon infection was not responding to antibiotics, his doctors should have sought a surgical consult. Dr. Cooperman also testified that David should have undergone surgery to remove the infected portion of his colon, and further, that there was a good chance surgery would have saved his life. However, Dr. Cooperman also admitted that there was a small chance David might not have survived surgery, regardless of when it occurred. Specifically, Dr. Cooperman testified that David’s primary physician, Dr. Singh, failed to properly monitor David, get appropriate consultations, and react to nurses’ calls that David’s condition was worsening. Dr. Cooperman summarized that these failures, especially the failure to consult -a surgeon, contributed to David’s death on 3 July 1999.

During the course of direct examination at trial, Mr. Wicklund’s counsel asked Dr. Cooperman to define the proper standard of care for a patient such as David, to which he answered, “the strict definition of standard of care is what a reasonable and prudent physician would do in similar circumstances.” However, Dr. Cooperman went on to say, “[w]hat I think the standard of care really means is what’s sensible care, what’s good for the patient.”

Following the close of all the evidence, counsel for Drs. Handoyo and Singh filed a motion for a directed verdict, which the court denied. After the court’s "ruling, the parties held á jury instruction conference. At the conference, defense counsel offered a verdict director that allowed the jury to apportion fault for David’s death among Drs. Handoyo and Singh, as well as two other doctors who were originally named as defendants in the Wicklunds’ petition, but were never served as party defendants: Dr. Jason Lee, M.D. and Dr. Tshishwaka Kayembe, M.D. However, the trial court refused to instruct the jury that it could apportion fault to Drs. Lee and Kayembe. Therefore, the court instructed the jury to apportion fault, if any, among only Drs. Handoyo and Singh. The jury subsequently found for Mr. Wicklund, and awarded him damages in the amount of $675,000. In particular, the jury found Dr. Handoyo 20% at fault, and ordered him to pay $135,000, and Dr. Singh 80% at fault, and ordered him to pay $540,000. Drs. Handoyo and Singh subsequently filed a motion for JNOV, or in the alternative, for a new trial. The trial court denied all post-trial motions and this appeal followed.

Drs. Handoyo and Singh bring three points of error. First, they claim that the trial court erred in denying their post-trial motions because the plaintiff failed to establish that Appellants deviated from the appropriate standard of care in that Mr. Wicklund’s expert, Dr. Cooperman, failed to properly state the appropriate standard of care during his direct examination. Second, Appellants claim that the trial court erred in denying their post-trial motions because the plaintiff failed to establish the essential element of causation in his negligence claim in that the record does not demonstrate that, but for the doctors’ failure to request a surgical consult, David would have lived. Third, Appellants claim that the trial court erred in refusing to instruct the jury that it could apportion fault to Drs. Lee and Kayembe, who participated in David’s care and were named in the original petition, but were never served, and were dismissed from the suit prior to trial. We affirm.

DISCUSSION

I. The Standard of Care

In their first claim of error, Appellants argue that the trial court erred in denying their motions for a directed verdict and JNOV because the plaintiff failed to establish that they deviated from the appropriate standard of care in that Mr. Wicklund’s expert, Dr. Cooperman, failed to properly state the appropriate standard of care during his direct examination.

We note initially that our review of a trial court’s denial of a motion for JNOV is whether the plaintiff has made a submissible case. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 338 (Mo.App. E.D.2000). In order to make a submissible case, a plaintiff must present “substantial evidence for every fact essential to liability.” Id. Whether evidence is substantial, and whether inferences drawn are reasonable, are questions of law. Id. In determining whether a plaintiff has made a submissible case, we review the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the plaintiff. Id. Accordingly, we will not overturn a jury verdict unless there is a complete absence of probative facts to support it. Id. Where reasonable minds can differ on the question before a jury,, we can not disturb the jury’s verdict. Id. Since a judgment notwithstanding the verdict is a drastic action, it should only be granted when reasonable minds could not differ on a correct disposition of the case. Id.

A plaintiff in a medical malpractice case must introduce evidence from an expert witness establishing that the defendant failed to meet the requisite standard of care. Boehm v. Pernoud, 24 S.W.3d 759, 762 (Mo.App. E.D.2000). However, the expert may not simply testify that the defendant’s conduct “did not measure up to the standards of an individual member of the profession.” Id. Rather, the expert must testify that the defendant failed to meet the “standards of the profession at large,” in order to make the plaintiffs case. Id. Missouri’s approved jury instruction defines negligence as “the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant’s profession,” MAI 11.06 (1990), and this statement must appear in the expert’s testimony. Ladish v. Gordon, 879 S.W.2d 623, 634 (Mo.App. W.D.1994).

In this case, Mr. Wicklund’s expert, Dr. Cooperman, testified to the following at trial regarding the relevant standard of care: “the strict definition of standard of care is what a reasonable and prudent physician would do in similar circumstances. What I think that standard of care really means is what’s sensible care, what’s good for the patient.”

In their brief, Drs. Handoyo and Singh take issue with both portions of Dr. Coo-perman’s testimony regarding the standard of care. First, they argue that his “strict definition” deviated from MAI 11.06, and thus, was not sufficient. Second, they argue that Dr. Cooperman’s statement on what he thinks that standard of care means likely confused the jury because it did not know whether he based his subsequent opinions on the “strict definition” of the standard of care, or on his own interpretation. Furthermore, they argue that this alternative definition was not sufficient because it did not use the magic words “reasonable” and “prudent.”

Although we agree that Dr. Cooperman could have stated the standard of care, as required by MAI 11.06, with greater precision, we do not agree that plaintiff wholly faded to establish this element of his case. Appellants rely on Ladish v. Gordon, supra, for the proposition that Dr. Cooper-man’s statements failed to sufficiently state the standard of care. In Ladish, the Western District of this Court held that the plaintiffs expert witness failed to properly articulate the standard of care when he simply told the jury that the defendant physician’s conduct “fell below ‘accepted medical standards.’ ” Id. at 633. In particular, the defendant in Ladish argued that the plaintiff failed to state the standard because the plaintiffs expert “never gave any description or definition of the meaning of the phrase ‘standard of care’ in his testimony.” Id. at 634. The Western District agreed, and held that, “use of the terms ‘accepted medical standards’ and ‘standards of care’ do not in themselves satisfactorily articulate the appropriate legal standard.” Id. Rather, “the fact finder must be informed as to whether the witness, in offering opinions, is using the standard prescribed by law and not some other standard.” Id.

However, we do not believe that Ladish applies to this case because, unlike in Ladish, Dr. Cooperman sufficiently defined the standard of care, albeit imperfectly, when he stated: “the strict definition of standard of care is what a reasonable and prudent physician would do in similar circumstances.” In fact, the Ladish court itself held that “[i]t is not necessary that the legal standard be recited in ritualistic fashion, but generally it must appear somewhere in the context of the expert’s testimony that the proper objective legal standard is ... being employed.” Id. In Ladish, however, the plaintiffs expert never stated the standard, and instead, used phrases such as, “it would have been more appropriate,” and “the usual approach,” and the court held that the plaintiff did not sufficiently state the standard. Id. at 635.

In this case, however, Dr. Cooperman did not use such vague statements as the sole basis for reciting the standard of care. Rather, although he did not ritualistically recite MAI 11.06 verbatim, we hold that his definition was sufficiently close to satisfy the Boehm standard.

Furthermore, we believe that Dr. Coo-perman’s second statement regarding his thoughts on the standard of care did not so confuse the jury as to eviscerate the effect of his first, required statement. Although Ladish instructs that the jury must know that the expert, in offering opinions, is using the prescribed legal standard, as opposed to some other standard, we defer to the trial court’s implicit ruling that the jury was not so confused. As previously discussed, Dr. Cooperman’s testimony was markedly different from that of the expert in Ladish, and included a sufficient definition of the standard. Therefore, since Dr. Cooperman’s testimony generally comported with Boehm and MAI 11.06, we will not disturb the trial court’s ruling.

For these reasons, we hold that the trial court did not err when it held that Mr. Wicklund made a submissible case because Dr. Cooperman adequately stated the standard of care, and further, that his subsequent commentary on the standard of care was of no consequence. Point one is denied.

II. The Causation Element

In their second claim of error, Appellants argue that the trial court erred in denying their post-trial motions because Mr. Wicklund failed to establish the essential element of causation in his negligence case. In particular, Appellants argue that the record reveals Mr. Wieklund’s expert, Dr. Cooperman, failed to establish that, “but for” their failure to get a surgical consult, David would have survived.

We note initially that in order to make out a prima facie case of medical malpractice, the plaintiff must establish the following three elements: (1) proof that the defendant’s act or omission failed to meet the requisite standard of care; (2) proof that the act or omission was performed negligently; and (3) proof of a causal connection between the act or omission and the injury sustained by the plaintiff. Klaus v. Deen, 883 S.W.2d 904, 907 (Mo.App. E.D.1994). For purposes of this claim of error, Appellants take issue with only the third element of Mr. Wicklund’s prima facie case, and argue that because Dr. Cooperman did not establish that their failure to get a surgical consult actually caused David’s death, Mr. Wicklund failed as a matter of law to make out his prima facie case.

Thus, we also note as an initial matter that in order for Mr. Wicklund to satisfy the causation element of his. prima facie case, he must establish that Appellants’ conduct was both: (1) the cause-in-fact; and (2) the proximate, or legal, cause of his son’s death. Tompkins v. Cervantes, 917 S.W.2d 186, 190 (Mo.App. E.D.1996). In this case, Appellants primarily take issue with the cause-in-fact aspect of Plaintiffs case, and we will- address it accordingly.

Missouri case law reveals that in virtually all negligence actions, “cause-in-fact” causation is determined by applying the familiar “but for” test. Id. That is, the plaintiff must establish that, “but for the tortfeasor’s conduct, the injured party would not have been damaged.” Id. More specifically, in failure-to-diagnose cases, such as here, causation is established through expert testimony that “there is a reasonable degree of medical or scientific certainty” that defendant’s negligence caused the harm. Wollen v. DePaul Health Center, 828 S.W.2d 681, 682 (Mo. banc 1992). On the other hand, when an expert merely testifies that a defendant’s action or inaction might or could have yielded a certain result, such testimony is “devoid of evidentiary value” and fails to establish causation. Baker v. Guzon, 950 S.W.2d 635, 646 (Mo.App. E.D.1997).

In this case, application of the “but for” test means that Mr. Wicklund must demonstrate, through expert testimony, that there is a reasonable degree of medical certainty David would have survived if Appellants had requested a surgical consult and surgery had been performed. At trial, Dr. Cooperman unequivocally testified that, as a surgeon, he would have recommended surgery, and further, that David more likely than not would have survived the surgery.

Thus, we are left with the following dis-positive issue regarding this claim of error: was Dr. Cooperman’s testimony regarding causation sufficient to establish that, but for Appellants’ failure to seek a surgical consult, there was a reasonable degree of medical certainty that David would have survived surgery? We find that it was.

Because this claim of error involves the trial court’s denial of Appellant’s motion for JNOV, our standard of review is whether the plaintiff has made a submissi-ble case. Coggins, 37 S.W.3d at 338. Specifically, we must review all the evidence in the light most favorable to the verdict, and must affirm the jury’s verdict unless “there is a complete absence of probative facts to support it.” Id.

In this case, the only relevant evidence adduced at trial involves the expert testimony of Dr. Cooperman. Mr. Wicklund’s counsel directly asked Dr. Cooperman if, based upon his review of the medical files, he had an opinion regarding whether David was a candidate for surgery. Dr. Cooperman responded, in no uncertain terms, that David “desperately needed to have surgery.” Dr. Cooperman further noted that, although David was “a very sick man” and “had a lot of problems going on,” there was an “overwhelming probability” that he would have survived surgery. When asked again about David’s chances of survival following surgery, Dr. Cooper-man responded, “I don’t think there’s any question more likely than not he would have survived surgery.” When asked whether this opinion was to a “reasonable degree of medical certainty,” Dr. Cooper-man responded in the affirmative.

In their brief, Appellants suggest that because Mr. Wicklund’s claim was under a wrongful death theory, the only way this theory may be proven is to establish that David “would not have died if not for the inaction of Defendants/Appellants” (emphasis in original). Appellants further posit in their brief that Dr. Cooperman’s testimony is “devoid of evidentiary value” because he “wavered” when he “implicitly admitted” that surgery did not work in the “overwhelming majority of cases.” This argument suggests that in order for Mr. Wicklund to establish cause-in-fact causation, Dr. Cooperman must have testified that, had Appellants sought a surgical consult and surgery been performed, David absohitely would have survived. In support of this proposition, Appellant’s cite to this Court’s decisions in Baker v. Guzon, 950 S.W.2d 635 (Mo.App. E.D.1997) and Tompkins v. Cervantes, 917 S.W.2d 186 (Mo.App. E.D.1996) and argue that Dr. Cooperman’s testimony was “self-contradictory,” and thus, insufficient as a matter of law to establish causation. Specifically, Appellants point to testimony from Dr. Cooperman in which he indicated there was a chance that David may not have survived surgery, had it been performed.

However, we find no support for these propositions in Missouri case law on medical malpractice causation. Rather, our review of the relevant Missouri cases reveals two important principles. First, this court in Schiles v. Schaefer held that the plaintiffs established causation in their failure-to-diagnose medical malpractice case, even though- the plaintiffs expert admitted on cross-examination that there was a 25% chance that the decedent would have died even if he had received proper treatment, 710 S.W.2d 254, 260-61 (Mo.App. E.D.1986), rev’d on other grounds by Jensen v. ARA Services, Inc., 736 S.W.2d 374, 377 (Mo. banc 1987). The Schiles court found that causation was established because the expert’s opinion was “not couched in terms of possibilities,” but rather, was “expressed clearly in terms of reasonable medical certainty,” 710 S.W.2d at 260-61 (emphasis in original).

In this case, Dr. Cooperman’s testimony, like the plaintiffs expert in Schiles, was clearly expressed to a “reasonable degree of medical certainty.” Even though he could not say that surgery absolutely would have saved David’s life, he clearly stated that there was “an overwhelming probability” David would have survived, had the surgery been performed.

Second, although Missouri does recognize the rule that self-contradictory evidence does not constitute sufficient evidence of causation, see Yoos v. Jewish Hosp. of St. Louis, 645 S.W.2d 177, 185 (Mo.App. E.D.1982), courts must consider expert testimony on causation as an integrated whole unless it is “inherently self-contradictory,” Odum v. Cejas, 510 S.W.2d 218, 223 (Mo.App.1974). In our view, the operative word is “inherently,” and we believe there is no interpretation of Dr. Coo-perman’s testimony that could lead a reasonable jury to conclude that his testimony concerning David’s post-operative chances of survival was inherently contradictory. On the contrary, Dr. Cooperman was quite explicit in asserting his belief that David’s chances of surviving surgery were “overwhelmingly” probable. That said, we acknowledge that Dr. Cooperman fully admitted that David may not have survived surgery because he was indeed “very sick.” However, we cannot say that this acknowledgement of medical reality constitutes an inherent contradiction in Dr. Coo-perman’s testimony.

For these reasons, we reject Appellants’ argument that Dr. Cooperman’s testimony concerning David’s chances of survival were either self-contradictory or insufficient as a matter of law to establish the causation element of Mr. Wicklund’s medical negligence case. Rather, we conclude that Dr. Cooperman’s testimony presented sufficient evidence of causation to create a submissible case for the jury. Therefore, we hold that the trial court did not err when it denied Appellants’ motions for a directed verdict and JNOV. Point two is denied.

III. Jury Instructions

In their third and final claim of error, Appellants argue that the trial court erred in refusing to instruct the jury that it could apportion fault to Drs. Lee and Kayembe, who participated in David’s care and were named in the original petition, but were never served, and were dismissed from the suit prior to trial. In particular, Appellants argue that the trial court misapplied Missouri law regarding the apportionment of fault. The relevant statute states, in pertinent part:

In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services where fault is apportioned among the parties and persons released pursuant to subsection 3 of this section, the court, unless otherwise agreed by all parties, shall instruct the jury to apportion fault among such persons and parties ... indicating the percentage of total fault of all the parties to each claim that is allocated to each party and person who has been released from liability under subsection 3 of this section.

Section 538.230(1) RSMo. (2000).

The statute further defines a “release,” for purposes of Section 538.230(1), as “any release, covenant not to sue, or similar agreement entered into by a claimant and a person or entity against which a claim is asserted arising out of the alleged transaction which is the basis of the suit.” Section 538.230(3).

Because the issue of whether a jury was properly instructed is a question of law, our review of a trial court’s decision is de novo. Moore ex rel. Moore v. Bi-State Dev. Agency, 87 S.W.3d 279, 293 (Mo.App. E.D.2002). A proper instruction submits only the ultimate facts, not eviden-tiary details, to avoid undue emphasis of certain evidence, confusion, and the danger of favoring one party over another. Id. Upon a claim of instructional error, we review the evidence “most favorably to the instruction, disregarding] ' contrary evidence, and [we] reverse where the party challenging the instruction shows that the instruction misdirected, misled, or confused the jury.” Id.

As previously discussed, in addition to Drs. Handoyo and Singh, Drs. Lee and Kayembe were also named in Mr. and Mrs. Wicklund’s original petition. At the jury instruction conference, Appellants’ counsel argued that the jury should be permitted to apportion fault to Drs. Lee and Kayembe because there was testimony at trial that their care was negligent. In particular, Appellants argued that the plaintiffs own expert witness testified that both Drs. Lee and Kayembe also deviated from the standard of care by faffing to recommend a surgical consult for David. However, the trial court ultimately ruled that the jury would only be permitted to apportion fault, if any, among the Appellants in this case, Drs. Handoyo and Singh.

In support of this proposition, Appellants argued in their brief that, “[although subparagraph 3 of Section 538.230 clearly speaks to individuals that have been released or dismissed, it does not address issues regarding parties that have not been released or dismissed, have never been served, or were never parties” (emphasis in original). Appellants further suggest that, “[a]llowing the jury to consider the proposed verdict director against Dr. Lee would not be contradictory to the plain language of the statute.”

Although we agree that such an application of Section 538.230 would not directly contradict the plain language of the statute, we decline to accept Appellants’ invitation to adopt this tortured reading of the statute.

It is an elementary principle of statutory construction, as well as established law in Missouri, that the expression of one thing means the exclusion of another. This principle is derived from the Latin maxim, expressio unius est exclusio alterius, and it applies to this case. Section 538.230(1) specifically provides that, where applicable, a court “shall instruct the jury to apportion fault among such persons and parties” who have been “released pursuant to subsection 3 of this section” (emphasis added). Although Appellant’s brief does not expressly admit that Drs. Lee and Kayembe were not “released” pursuant to Section 538.230, then-argument certainly implies as much. Regardless, we find that neither Dr. Lee nor Dr. Kayembe fall within the parameters of a “released” party under Section 538.230(3) because the record reveals no evidence that any release, covenant not to sue, or similar agreement was ever entered into with Mr. Wicklund.

Accordingly, by applying the aforementioned maxim of statutory construction, we hold that the trial court correctly refused to allow the jury to apportion fault to Drs. Lee and Kayembe because Section 538.230(1) does not apply to parties named in the original petition, but not “released” pursuant to Section 538.230(3). Point three is denied.

CONCLUSION

For the foregoing reasons, we conclude that the trial court did not err when it denied Appellants’ motions for a directed verdict and JNOV, or in the alternative, for a new trial because Dr. Cooperman properly stated the standard of care and established a causal connection between Appellants’ care and David’s subsequent death. Finally, the trial court did not err when it instructed the jury that it may only apportion fault to Drs. Handoyo and Singh because, under Section 588.230(3), Drs. Lee and Kayembe were never “released” from liability, and as such, they could not be subject to a jury’s apportionment of liability pursuant to Section 523.230(1).

The judgment of the trial court is AFFIRMED.

GARY M. GAERTNER, SR., P.J., and GEORGE W. DRAPER III, J., concur.

      . Mrs. Wicklund died prior to trial, and Mr. Wicklund remained the sole plaintiff in the action.

      . It should be noted, however, that the Ladish court subsequently found, notwithstanding the shortcomings of the expert’s testimony, that the plaintiff did establish this portion of the case, in large part because the defendant’s own evidence acknowledged the duty in dispute. Id. at 635.

      . In their brief, Appellants also take issue with the proximate cause aspect of plaintiffs case. However, because we believe there is no question that proximate causation would be established if cause-in-fact causation is established, we decline to engage in a protracted discussion of this point.

      . Appellants also argue in their brief that it was a "leap of faith” to assume that, even if they had ordered a surgical consult, surgery would have actually been performed. They suggest that Appellant’s failure to request a surgical consult, at most, cost David the “chance of having surgery, not the chance of surviving ” (emphasis in original). We find this argument wholly without merit because Dr. Cooperman’s testimony was sufficient to establish that if Appellants had ordered a surgical consult, any reasonable and prudent surgeon would have ordered surgery for David.

      . All statutory references are to RSMo. (2000), unless otherwise indicated.

      . See, e.g., Greenbriar Hills Country Club v. Director of Revenue, 47 S.W.3d 346, 352 (Mo. banc 2001); Westwood Country Club v. Director of Revenue, 6 S.W.3d 885, 887 (Mo. banc 1999); Kansas City v. J.I. Case Threshing Mach. Co., 337 Mo. 913, 87 S.W.2d 195 (banc 1935).


author: PAUL M. SPINDEN, Presiding Judge.

text:
    David E. NIEUWENDAAL, Respondent, v. MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.
    No. WD 65245.
    Missouri Court of Appeals, Western District.
    Nov. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 20, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Michael J. Spillane, Office of Attorney General, Jefferson City, for appellant.
    David E. Nieuwendaal, Ballwin, pro se.
   PAUL M. SPINDEN, Presiding Judge.

The Department of Corrections appeals the circuit court’s judgment granting David E. Nieuwendaal’s pro se petition for declaratory judgment. The circuit court determined that, pursuant to Section 559.115.7, RSMo Supp.2004, the department should not consider Nieuwendaal’s prior 120-day incarceration as a prior prison commitment for the purpose of calculating his minimum prison term under Section 558.019, RSMo Supp.2004. We agree and affirm the circuit court’s judgment.

Nieuwendaal committed the offenses of first degree tampering, stealing, and receiving stolen property on August 9, 1996. The circuit court sentenced him to three years in prison with the possibility of a 120-day call back under Section 559.115, RSMo 1994, on the tampering charge and concurrent 120-day sentences on the stealing and receiving stolen property charges. Nieuwendaal completed his 120-day incarceration, and the department released him to serve his probation.

On January 3, 2002, Nieuwendaal was convicted of stealing two motor vehicles and received consecutive four-year sentences. On June 7, 2002, Nieuwendaal was convicted of tampering and received a five-year sentence. The department determined that Nieuwendaal would need to serve 40 percent of these sentences before being eligible for parole because his 120-day incarceration in 1996 was a prior commitment under Section 558.019.

Nieuwendaal filed a petition for declaratory judgment with the circuit court asserting that he should not be required to serve a mandatory minimum prison term of 40 percent of his sentences. His petition alleged that the department’s ruling violated Section 559.115.7, RSMo Supp. 2004, which says, “An offender’s first incarceration for one hundred twenty days for participation in a department of corrections program prior to release on probation shall not be considered a previous prison commitment for the purpose of determining a minimum prison term under the provisions of section 558.019, RSMo.”

The circuit court agreed with Nieuwen-daal and ordered the department not to count the 120-day incarceration as a prior commitment. The department asserts on appeal that the circuit court erred because Section 1.160, RSMo 2002, bars the circuit court from retroactively applying Section 559.115.7, RSMo Supp.2004.

We faced the same issue in Irvin v. Kempker, 152 S.W.3d 358 (Mo.App.2004). We ruled in that case that Section 1.160 did not apply because Section 559.115.7 was a new statute that did not repeal or amend a previous statute and because Section 559.115.7 did not shorten the defendant’s sentence or alter the law creating the offense. Id. at 362; see also Powell v. Missouri Department of Corrections, 152 S.W.3d 363, 366 (Mo.App.2004).

Thus, because Section 1.160 does not apply, we turn to the common law under which we presume newly enacted statutes to operate prospectively only. This rule has two exceptions: (1) when the legislature manifests a clear intent that the statute apply retroactively, or (2) when the statute is solely procedural and does not affect the party’s substantive rights. State ex rel. Saint Louis-San Francisco Railway Company v. Buder, 515 S.W.2d 409, 410 (Mo. banc 1974).

We find no indication that the General Assembly intended for Section 559.115.7 to apply retroactively. Thus, we must determine whether the statute is procedural or substantive in nature. A law affects substantive rights if it would “take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already passed.” Id. (quotation omitted). Whereas substantive law creates, defines, and regulates rights, procedural law “is the machinery used for carrying on the suit” and prescribes a method of enforcing rights or obtaining redress for their invasion. State v. Jaco, 156 S.W.3d 775, 781 (Mo. banc 2005) (quotation omitted).

Section 559.115.7 is procedural. It clarifies the procedure by which minimum prison terms are determined under Section 558.019. It does not “take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already passed.” Buder, 515 S.W.2d at 410. It is more akin to the “machinery” by which minimum prison terms are determined.

In State ex rel. Nixon v. Russell, 129 S.W.3d 867 (Mo. banc 2004), the Supreme Court held that a new statutory provision, Section 558.016.8, RSMo Supp.2003, could be applied retroactively to individuals sentenced before the amendment’s effective date. Irvin, 152 S.W.3d at 362. Section 558.016.8 provided that an individual convicted of a nonviolent Class C or Class D felony, with no prior prison commitments, could seek early release on probation, parole, or other alternative sentence by petitioning the sentencing court after serving 120 days of his or her sentence. The Russell court concluded that Section 1.160 did not apply and held that, because Section 558.016.8 did not increase the offender’s punishment, it could be validly applied. 129 S.W.3d at 871. “As long as the new statute does not increase the length of an offender’s sentence, the changes it makes are a fit subject for legislation.” Id.

Likewise, Section 559.115.7 does not increase the length of an offender’s sentence or affect substantive rights. The statute may be applied retroactively; therefore, we affirm the circuit court’s judgment.

VICTOR C. HOWARD and RONALD R. HOLLIGER, JJ., concur.

      . Before June 27, 2003, 120-day incarcerations were counted as prior commitments under Section 558.019. In Star v. Burgess, 160 S.W.3d 376, 378 n. 2 (Mo. banc 2005), the Supreme Court acknowledged that the General Assembly amended Section 559.115, RSMo Supp.2004, and added subsection 7 which provides that "an offender's first incarceration for 120 days for participation in a department of corrections program prior to release on probation shall not be considered a previous prison commitment for purposes of section 558.019, RSMo." The court concluded that, because Star did not raise the issue of whether subsection 7 applied before the circuit court, it would not "convict a lower court of error on an issue that was not put before it to decide.” Id.

      . In a footnote, the Russell court said, "Challenges to legislation that would increase sentences are made under the ex post facto clause of the constitution. Mo. Const. art. I, sec. 13. State ex rel. Cavallaro [v. Groose], 908 S.W.2d [133,] at 136 [(Mo. banc 1995)].” 129 S.W.3d at 871 n. 7.


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    STATE of Missouri, ex rel., Jason GOODMAN, Appellant, v. ST. LOUIS BOARD OF POLICE COMMISSIONERS, Joann Freeman, Susan Rollins, Michael Quinn, Bartholomew Saracino, and Francis Slay, Respondents.
    No. ED 85650.
    Missouri Court of Appeals, Eastern District, Division Two.
    Nov. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Christopher C. Swenson, John M. Challis, Polsinelli Shalton Welte Suelthaus P.C, Clayton, MO, James F. McCarthy, III, Admitted Pro Hac Vice, Katz Teller Brant & Hild, Cincinnati, OH, for appellant.
    Office of the City Counselor, Mark Lawson, Associate City Counselor, St. Louis, MO, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, State of Missouri ex rel. Jason Goodman (“Goodman”), appeals from the judgment of the Circuit Court of the City of St. Louis granting Respondents’, St. Louis Board of Police Commissioners, JoAnn Freeman, Susan Rollins, Michael Quinn, Bartholomew Saracino, and Francis Slay (collectively “the Board”), motion to dismiss. We affirm.

In 2004, Goodman directed two public records requests, pursuant to Chapter 610, RSMo 2000 (“the Sunshine Law”), to the St. Louis Police Department (“the Police Department”). The first request, dated August 30, 2004, asked the Police Department to disclose all “[a]ceident [r]eports with a report date of August 10, 2004 to and / including August 30, 2004.” The second request, dated September 8, 2004, asked the Police Department to disclose all “[a]ccident [rjeports with a report date of August 28, 2004 to and / including September 7, 2004.” Both requests sought the same information for their respective report dates:

(b) [o]nly those [a]ccident [rjeports involving 2 or more vehicles;
(c) [n]o [ajccident [rjeports involving single vehicle accidents;
(d) [njo [ajccident [rjeports involving hit and runs;
(e) [ajll information provided to law enforcement officers by those involved in the accident, and/or witnesses, with the exception of social security numbers.

The Police Department produced incident reports for the requested periods of time, with redactions of the drivers license numbers, license plate numbers, addresses, telephone numbers, and month and date of birth (but not year) of the parties to the accident.

On October 6, 2004, Goodman filed a petition for enforcement and for writ of mandamus, praying the Board be enjoined “from further redacting information in violation of [the Sunshine Law].” Goodman also requested the trial court issue an order of mandamus to the Board “mandating that the requested [incident] reports be made available without any redaction (other than [sjocial [sjecurity and [djriver’s [ljicense [njumbers).... ” On October 8, 2004, the trial court entered a preliminary order of mandamus directing the Board to file their answer or response to Goodman’s petition on or before November 8, 2004.

On November 8, 2004, the Board filed a motion to dismiss Goodman’s petition for writ of mandamus. In their supporting memorandum of law, the Board alleged, inter alia, that “[Goodman] is a chiropractor,” “[he] routinely makes requests of [the Police Department] for all two-vehicle [incident] reports for accidents which occur within the City of St. Louis,” and “the victim information taken from the [incident] reports by [Goodman] was utilized for solicitation purposes.”

On November 16, 2004, the trial court issued an order/judgment dismissing Goodman’s petition for writ of mandamus with prejudice. The court also adjudged that the Board is not bound by the Sunshine Law to respond to general “bulk” records requests, such as Goodman’s, for vehicular incident reports. This appeal followed.

We review a trial court’s mandamus judgment as we do any other non-jury civil matter. State ex rel. Hunter v. Lippold, 142 S.W.3d 241, 242 (Mo.App. W.D.2004). Thus, the court’s judgment will be sustained 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. Id. at 242-43. Because this case involves an issue of statutory interpretation, which is an issue of law, our review is de novo. Id. at 243.

In his first point on appeal, Goodman argues that the trial court erred in authorizing the Police Department to redact information from the incident reports he requested.

Section 610.011.2 provides in pertinent part that “[e]xcept as otherwise provided by law ... all public records of public governmental bodies shall be open to the public for inspection and copying....” Section 610.011.2. In other words, public records are open to the public unless a statute protects their disclosure. Oregon County R-IV School Dist. v. LeMon, 739 S.W.2d 553, 557 (Mo.App. S.D.1987). If a statute protects the disclosure of public records, a public governmental body is authorized to “close” those records to the public. See Section 610.021(14); See Section 610.010(1).

Section 610.100.2 provides in pertinent part that “[a]ll incident reports ... shall be open records.” Section 610.100.2. An “incident report” is defined as:

a record of a law enforcement agency consisting of the date, time, specific location, name of the victim and immediate facts and circumstances surrounding the initial report of a crime or incident, including any logs of reported crimes, accidents and complaints maintained by that agency, (emphasis added). Section 610.100.1(4).

The rule of statutory interpretation requires us to determine and give effect to the legislative intent of the Sunshine Law. Colombo v. Buford, 935 S.W.2d 690, 697 (Mo.App.W.D.1996). Our guides include the legislative purpose and text of the statute. Hyde v. City of Columbia, 637 S.W.2d 251, 262 (Mo.App. W.D.1982). The legislative purpose of the Sunshine Law is for governmental conduct to be open to public inspection, but not at the expense of the vital personal interests of the citizenry. Id. It is the role of the legislature, and not the courts, to strike the delicate balance between these two competing interests. Id. at 263. The legislature conveys this balance and their intent to us through the express words and implied meaning of the statute. See Tribune Pub. Co. v. Curators of Univ. of Mo., 661 S.W.2d 575, 583 (Mo.App. W.D.1983). We construe the words of the statute in their plain and ordinary meaning. Colombo, 935 S.W.2d at 697 quoting Jones v. Director of Revenue, 832 S.W.2d 516, 517 (Mo.banc 1992).

The express words “consisting of,” are unambiguous when construed in their plain and ordinary meaning. Booth v. Greene, 75 S.W.3d 864, 869 (Mo.App. W.D.2002). “The term ‘consisting of makes clear that the list is exhaustive.” Id.

In this case, it is undisputed that the Board and the Police Department are public governmental bodies. It is further undisputed that the incident reports at issue in this case are public records. The issue in this case is whether statutory provisions in the Sunshine Law protect the disclosure of the information redacted by the Police Department, that is, the license plate numbers, addresses, telephone numbers, and month and date of birth (but not year) of the parties named in the incident reports.

Section 610.100.1(4) reveals that an incident report consists of the following: “the date, time, specific location, name of the victim and immediate facts and circumstances” regarding an incident. Section 610.100.1(4). Only this information specifically delineated in section 610.100.1(4) is considered an open record pursuant to section 610.100.2. The incident reports the Police Department provided to Goodman contained the five pieces of information that make up the exhaustive definition of an incident report. In contrast, the license plate numbers, addresses, telephone numbers, and month and date of birth (but not year) of the parties to the accident are not part of the exhaustive definition of an incident report. Therefore, the trial court did not err in authorizing the Board to close by redaction this information from the incident reports Goodman requested. Point denied.

In his second point on appeal, Goodman argues that the trial court erred in holding that the Police Department is not bound by the Sunshine Law to respond to “bulk” requests for vehicular incident reports such as Goodman.

When there is an occurrence that makes a court’s decision unnecessary or makes granting any relief by the court impossible, then the issue is moot and should not be addressed. Care and Treatment of Schottel v. State, 121 S.W.3d 337, 339 (Mo.App. W.D.2003).

In this case, the issue raised in this point on appeal is moot in light of the fact Goodman does not allege in his point relied on or argument portions of his brief that the Board failed to provide Goodman with all of the records he requested in this case. Therefore, this allegation is considered abandoned. See Joyce v. State, 684 S.W.2d 553, 554 (Mo.App. E.D.1984). Point denied.

In his third point on appeal, Goodman argues the trial court erred in considering unverified supplemental facts from the Board in dismissing Goodman’s petition.

Goodman contends that the trial court should not have considered the Board’s allegations, within its memorandum in support of its motion to dismiss, that Goodman was a chiropractor and that he used the information from the reports for solicitation purposes.

In order to obtain relief on appeal, a party must not only demonstrate error, but also prejudice. LaRocca v. LaRocca, 135 S.W.3d 522, 524 (Mo.App. E.D.2004).

In this case, the trial court stated in its judgment that “[t]he information ... from these vehicular [incident] reports sought by [Goodman], a chiropractor ... is utilized for solicitation purposes.... This Court finds that this information is not necessary for its decision.” In addition, Goodman has not denied the veracity of the Board’s allegations. Furthermore, our interpretation of the Sunshine Law, as discussed under Point T, is not dependent upon these allegations. Therefore, assuming arguendo that the trial court erred in merely considering the Board’s allegations, Goodman has failed to demonstrate that he was prejudiced thereby. Point denied.

Based on the foregoing, the judgment of the trial court is affirmed.

GEORGE W. DRAPER III, J., and KENNETH ROMINES, J., concur.

      . We deny Goodman’s motion to strike portions of Saint Louis County’s Amicus Curiae brief taken with the case.

      . All statutory references are to RSMo 2000, unless otherwise indicated.

      . Because the Board oversees and controls the Police Department, all further references to "the Police Department” also implicitly refer to the Board.

      . Although Goodman requested copies of "accident reports” from the Police Department, and not "incident reports,” Goodman admits in his reply brief that a report of an accident is an incident report and that the two terms are interchangeable. Thus, from this point on we will only reference the term “incident • report.”

      . The trial court adopted these allegations as findings of fact in its November 16, 2004 order/judgment.

      . On December 13, 2004, Goodman filed' a "Motion And Memorandum In Support For Leave To File His Memorandum Of Law In Opposition To [the Board’s] Motion To Dismiss.” It does not appear from the record that the trial court ever ruled upon this motion.

      . Information that is not expressly listed in the exhaustive definition of an incident report and thereby closed by a police department may be obtained by ”[a]ny person, attorney for a person, or insurer of a person involved in any incident or whose property is involved in an incident.” Section 610.100.4. Goodman has never alleged that section 610.100.4 applies to his requests for incident reports.

      . In fact, Goodman admitted in oral arguments that he was a chiropractor.


author: PATRICIA L. COHEN, Judge.

text:
    In the Interest of A.A.T.N.
    No. ED 85697.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 1, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 7, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Mary D. Pox, University City, MO, for appellant.
    Kathryn L. Pierce, St. Louis, for Guardian Ad Litem.
    Karen A. Siegel, St. Louis, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Ahn Nguyen (“Father”) appeals from a judgment of the Circuit Court of the City of St. Louis terminating his parental rights to his daughter, A.A.T.N. Father contends that the trial court erred in terminating his parental rights because: (1) the record is insufficient to support the trial court’s findings under Section 211.447.4(2),(3), and (6) RSMo.2000; and (2) the trial court failed to address all relevant statutory factors set forth in 211.447.4(2) and (3); and (3) the trial court failed to address the “best interest” factors set forth in Section 211.447.6. We affirm.

Statement of the Facts and Proceedings Below

Viewed in the light most favorable to the trial court’s decision, the facts are as follows. Four-year-old A.A.T.N. and her six-year-old sister, Annabelle, lived with Father and My Nguyen (“Mother”). On April 17, 2003, Dr. Griffiths-Williams examined A.A.T.N. and Annabelle at St. Louis Children’s Hospital. During the examination, Dr. Griffiths-Williams found multiple lesions on Annabelle’s legs, arms, back, the back of her neck and left knee as well as bruising on her left foot. She found similar lesions on A.A.T.N. In total, Dr. Griffiths-Williams found approximately thirty lesions on Annabelle and fourteen lesions on A.A.T.N. The lesions appeared to be inflicted at different times, the most recent within thirty days of the hospital visit, and were not self-inflicted or accidental.

Suspecting abuse, the Missouri Department of Social Services, Children’s Division (“Children’s Division”) took A.A.T.N. and Annabelle into care on April 18, 2003. The trial court held a jurisdictional hearing, and thereafter issued an order (“Jurisdictional Order”), determining that Father abused A.A.T.N and her sister and continuing the Children’s Division’s custody of the children. More specifically, the trial court determined that Father held a fighter to Annabelle’s left knee, punctured her legs, arms and the back of the neck with a fork and hit her. The trial court also found that Mother knew or should have known of Father’s abuse, but that Mother failed to protect both A.A.T.N. and Annabelle from Father. The trial court concluded that Father and Mother were not appropriate custodians for A.A.T.N. and Annabelle because, while in Father’s and Mother’s custody, the children were at risk of harm or neglect. Additionally, the trial court ordered Father to obtain employment and appropriate housing, initiate semi-monthly visitation with A.A.T.N., engage in parenting skills training and family violence counseling and pay child support.

On November 13, 2003, the trial court held a hearing to review Father’s progress under the terms of the Jurisdictional Order. Following the hearing, the trial court determined that Father had partially complied with the Jurisdictional Order.

On April 14, 2004, the trial court held a permanency hearing. The children’s therapist, Lanie Holzman, and their caseworker, Angela Hager, testified and recommended termination of Father’s and Mother’s parental rights. Kenneth Woods, a licensed clinical social worker and Father’s therapist, also testified. Mr. Woods noted that although Father “must accept responsibility for what he did,” Father continued to deny causing the children’s injuries and offered no other explanation for them injuries. When discussing Father’s denial of accountability, Mr. Woods admitted that Father’s attitude was a “concern.” The trial court also again reviewed Father’s compliance with the Jurisdictional Order and concluded that Father failed to eliminate the conditions that caused the children’s removal from the home. At the conclusion of the hearing, the trial court issued an order recommending the termination of Father’s and Mother’s parental rights.

The Juvenile Officer filed a Petition to Terminate Parental Rights against Father and Mother, and the trial court held a dispositional hearing on October 18 and 20, 2004. The Juvenile Officer presented the testimony of Ms. Holzman and Ms. Hager, both of whom testified that termination was in the best interests of the children.

Ms. Holzman, the children’s therapist, based her recommendation on several factors. As an initial matter, Ms. Holzman, found A.A.T.N.’s account of the abuse credible. Moreover, Ms. Holzman believed Father would hurt A.A.T.N. if she returned home and Mother would be unable to protect A.A.T.N. from him. Furthermore, she explained that Father would not be able to participate in therapy with A.A.T.N. because he did not acknowledge his abuse. In addition, she testified that A.A.T.N. did not want to five with Father and that A.A.T.N. continued to fear him. She warned that the “threat of potential unsafety” would traumatize A.A.T.N. if she returned home. Finally, she predicted that the conditions which caused A.A.T.N.’s removal from the home would not change in the future.

Ms. Hager, the children’s caseworker, echoed the testimony of Ms. Holzman. Ms. Hager concluded that, if the children returned home, Father would have access to the children and Mother would be unable to protect them. She noted that Mother desired to be with Father and spent nights with him at his residence. Ms. Hager repeated Annabelle’s account of Father’s abuse, including that Father held her down and burned her with a lighter on her knee and, on a separate occasion, burned her with a fork. Likewise, Ms. Hager disclosed A.A.T.N.’s report that Father hit and kicked her and stabbed her with a fork. Ms. Hager also described A.A.T.N. as “distant” during her visits with Father. Finally, Ms. Hager stated that A.A.T.N. did not want to live with Father because she feared he would hurt her.

The Juvenile Officer also presented the testimony of Jennifer Evans, a Family Court staff psychologist. Ms. Evans testified about her interactions with Mother and stated that A.A.T.N. risked developing “emotional problems” if she was returned to Father and Mother because there was a “potentially abusive” situation in the home.

In addition to live witness testimony, the Juvenile Officer proffered the Children’s Division case file, Ms. Holzman’s summary therapy reports and the Children’s Division’s Termination of Parental Rights referral forms for A.A.T.N. Ms. Holzman’s summary therapy reports recounted A.A.T.N.’s and Annabelle’s statements regarding Father’s' abuse. Likewise, the Termination of Parental Rights referral form detailed Father’s abuse of A.A.T.N. and Annabelle. In addition to the reports and forms, the trial court took judicial notice of the pleadings and the files in A.A.T.N. and Annabelle’s underlying cases. The files from the underlying cases contained, inter alia, the orders from the jurisdictional and permanency hearings.

In support of his position, at trial Father stated that he never abused his daughters and had complied with the trial court’s order. In addition, he called Mary Conner, an employee of the Division of Child Support Enforcement, to explain why he failed to support A.A.T.N. Conner testified that the Division of Child Support Enforcement could not issue a child support order until paternity was established, and although Father submitted to a paternity test, the State never presented A.A.T.N. for the test. Nevertheless, she also stated that Father could have obtained a child support order without a paternity test by presenting an order of the trial court finding him to be A.A.T.N.’s father. The trial court also heard the testimony of Mother who claimed that Father could not have abused the children and the marks on the girls were from allergies. .

Following the hearing, the trial court entered judgment terminating Father’s and Mother’s parental rights. Father appeals.

Standard of Review

Our review of a trial court’s decision to terminate parental rights is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). We affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declared or applied the lavy. In the Interest of B.L.H., 158 S.W.3d 269, 277 (Mo.App. E.D.2005). We view the facts in the light most favorable to the trial court’s decision and defer to the trial court’s superior ability to determine the credibility of witnesses. In the Interest of E.D.H., 138 S.W.3d 761, 764 (Mo.App. E.D.2004).

Section 211.447 sets out statutory grounds for the termination of parental rights and permits termination only when it is in the best interest of the child and the statutory grounds for termination are supported by “clear, cogent and convincing evidence.” See In the Interest of 160 S.W.3d 355, 362 (Mo. banc 2005). Evidence which is clear, cogent, and convincing instantly tilts the scales in favor of termination when weighed against the evidence in opposition and leaves the fact finder with an abiding conviction that the evidence is true. Id. Such evidence may be found despite the presence of contrary evidence. In the Interest of D.C., A.C, 49 S.W.3d 694, 698 (Mo.App. E.D.2001).

After finding the existence of one or more of the statutory grounds, the trial court must consider whether termination is in the best interest of the child. In the Interest of P.L.O. and S.K.O., 131 S.W.3d 782, 789 (Mo. banc 2004). The determination of what is in a child’s best interests is a subjective assessment based on the totality of the circumstances. B.L.H. 158 S.W.3d at 282. We review a best interest determination for abuse of discretion. Id.

Discussion

A. Section 211.447.4(3)-Failure to Rectify

In his first point, Father contends that the record contains insufficient competent evidence to terminate parental rights under Section 211.447.4(3). More specifically, Father argues that evidence used by the trial court was not competent evidence because the trial court erred in taking judicial notice of the permanency order and using findings therein to support termination. Father further contends that the trial court failed to address all factors set forth in Section 211.447.4(3).

Termination under Section 211.447.4(3) is “based on a determination that conditions of a potentially harmful nature continued to exist as of the termination, rather than a mere finding that conditions that led to the assumption of jurisdiction still persisted.” B.L.H., 158 S.W.3d at 278. To make this determination, the trial court must consider: (a) the terms of the social service plan and the extent to which the parties have made progress in complying with those terms; (b) the success or failure of the Children’s Division or the juvenile officer to aid the parent to provide a proper home for the child; (c) a mental condition which renders the parent unable to knowingly provide the child with the necessary care, custody or control; and (d) chemical dependency. See Id.; see also, In the Interest of E.T.C., 141 S.W.3d 39, 47 (Mo.App. E.D.2004).

In this case, the trial court found that the conditions that caused the court to assume jurisdiction, or conditions of a potentially harmful nature, continued to exist and would not be remedied at an early date to permit A.A.T.N.’s return to Father’s custody in the near future. Further, the trial court found that the Children’s Division was unsuccessful in its efforts to assist Father in adjusting his circumstances to provide a proper home for A.A.T.N. In that regard, the court noted that Father refused to accept responsibility for the minor children’s injuries. The court also found that Father did not fully comply with the Jurisdictional Order, as he paid no support for A.A.T.N.

The record supports the trial court’s determination that conditions of a potentially harmful nature still existed. First, Ms. Holzman, A.A.T.N.’s therapist, testified that A.A.T.N. feared Father. She offered compelling testimony that A.A.T.N. believed Father would hurt her if she returned to his care. Ms. Hager, A.A.T.N.’s caseworker, described A.A.T.N. as “distant” during visits with him and stated that A.A.T.N. did not want to live with Father because she feared further abuse. Moreover, Ms. Holzman believed that A.A.T.N. risked being traumatized if she was returned to Father. Similarly, Ms. Evans, A.A.T.N.’s juvenile officer, explained that A.A.T.N. risked emotional problems if she was returned to Father’s care because of the “potentially abusive” situation.

More significantly, the record also reveals that Father failed to acknowledge that he abused the children. At trial, Ms. Holzman explained that Father’s failure to acknowledge the abuse precluded him from participating in therapy with A.A.T.N. Furthermore, Father’s therapist also expressed concern about Father’s failure to acknowledge his abuse, noting that Father needed to accept responsibility for his actions. Finally, Ms. Holzman predicted that the conditions would not change in the future to allow A.A.T.N. to be returned to Father’s care.

As part of his first point, Father also argues that the trial court erred when it took judicial notice of A.A.T.N.’s court file and Annabelle’s court file. As a general rule, a trial court may take judicial notice of its own records in prior proceedings between the same parties where the same basic facts are at issue. Feinberg v. Feinberg, 924 S.W.2d 328, 330 (Mo.App. E.D.1996).

The Western District’s decision in In the Interest of C.M.W., 813 S.W.2d 331 (Mo.App. W.D.1991) is instructive. In C.M.W., the appellant argued that the trial court erred when it took judicial notice of separate legal files involving the child at issue and her brother. C.M.W., 813 S.W.2d at 333. Affirming the trial court, the Western District noted that the appellant had counsel in the prior proceedings and, thus, had an opportunity to refute, impeach or explain evidence that was presented against her. Id. Consequently, it held that the trial court did not err in taking judicial notice of, and relying on, the files generated in the earlier proceedings. Id.

Here, as in C.M.W., all the hearings were between the same parties and concerned the same basic facts. See C.M.W., 813 S.W.2d at 333. Moreover, Father had the same counsel throughout the process and had a full opportunity to refute, impeach and explain the evidence presented against him. See C.M.W., 813 S.W.2d at 333. Accordingly, the trial court did not err in taking judicial notice of either A.A.T.N.’s or Annabelle’s file.

In addition to challenging the sufficiency of th.e evidence, Father contends that the trial court failed to consider and make a finding with respect to each statutory subsection under Section 211.447.4(3), as required. See E.T.C., 141 S.W.3d at 48. In reviewing such a contention, we consider whether the trial court’s findings are sufficiently specific to permit us to determine whether the trial court properly considered each factor. In the Interest of C.F.C., 156 S.W.3d 422, 427 (Mo.App. E.D.2005).

Father concedes that the trial court made specific findings required by Section 211.447.4(3)(a). Specifically, the trial court found that Father partially complied with the Jurisdictional Order; he was employed, obtained appropriate housing, completed parenting classes and maintained visitation with A.A.T.N. The trial court also made specific findings in accordance with Section 211.447.4(3)(b), concluding that the Children’s Division was unsuccessful in assisting Father to adjust his circumstances in order to provide a proper home for A.A.T.N.

However, the trial court made no specific findings in its discussion of Section 211.447.4(3) in reference to subsections (c), relating to mental conditions, and (d), concerning chemical dependency, but instead stated at the end of its order, “[t]he Court has considered all subsections of 211.447.4 R.S.Mo. and Section 211.447.6 R.S.Mo. and, except as expressly provided herein, finds the subsections irrelevant because no evidence of their applicability was presented.” While it may be a better practice to make specific findings as to each individual subsection, see E.T.C., 141 S.W.3d at 48, we have reviewed the record and it does not appear that Father’s mental condition or chemical dependency were issues in the case. Thus, the trial court’s findings regarding the Section 211.447.4(3) factors are sufficient to assure us that the trial court considered all relevant subsections and evidence presented as is required by C.F.C. 156 S.W.3d at 427. Point denied.

B. Section 211.447.4(2)-Abuse and Neglect

In his second point, Father argues that the record contains insufficient competent evidence of severe or recurrent acts of physical, emotional or sexual abuse to support termination under Section 211.447.4(2). More specifically, Father contends that the record does not contain evidence of abuse because the trial court relied on A.A.T.N.’s and Annabelle’s court files and testimony from Ms. Holzman and Ms. Hager which contained hearsay accounts of A.A.T.N.’s and Annabelle’s abuse. Father also argues that the trial court failed to address all relevant statutory factors set forth in Section 211.447.4(2).

The trial court found that Father committed severe and recurrent acts of physical, emotional and sexual abuse toward A.A.T.N. and Annabelle. More specifically, the court found that Father hit and punctured A.A.T.N. and Annabelle with a fork and held a lighter to Annabelle’s knee. The court also found that the puncture wounds were created over a period of time because they were in various stages of healing. We agree with Father that there is insufficient evidence to support findings of sexual abuse. However, the record contains substantial evidence that Father repeatedly physically abused A.A.T.N. and Annabelle and that they suffered emotional consequences as a result of that abuse. See In the Interest of C.F.C., 156 S.W.3d 422, 427 (Mo.App.E.D.2005) (stating proof of any one factor sufficient to terminate parental rights).

The record is replete with evidence that Father abused A.A.T.N. and Annabelle. Dr. Griffiths-Williams observed multiple lesions on A.A.T.N. and Annabelle and determined after examination that the lesions were not self-inflicted or accidental. Furthermore, both the children’s therapist and caseworker opined that Father abused the children. The therapist also concluded that Father would abuse A.A.T.N. again if she returned to his care.

Likewise, the record also establishes that the children suffered repeated abuse. The lesions found on A.A.T.N. and Annabelle were in various stages of healing. Dr. Griffiths-Williams determined that the lesions were produced over a period of time. Thus, the record supports the inference that the lesions were not created during a single episode, but that Father repeatedly abused A.A.T.N. and Annabelle.

Father also contends that the trial court erred in admitting AAT.N.’s and Annabelle’s accounts of abuse as related to Ms. Holzman and Ms. Hager. We conclude, as did the trial court, that the children’s accounts of abuse were admissible under the hearsay exception articulated in In re Marriage of P.K.A., 725 S.W.2d 78 (Mo.App. S.D.1987).

In P.KA, the Southern District held that a trial court is permitted to admit a child’s statement indicating sexual abuse where the best interest of the child is the “primary concern.” P.K.A., 725 S.W.2d at 81. See also State v. Bell, 950 S.W.2d 482 (Mo.1997); D.L.H. v. H.T.H., 780 S.W.2d 104 (Mo.App. E.D.1989); In the Interest of S.M., 750 S.W.2d 650, 654 (Mo.App. E.D.1988). The Southern District noted that allowing hearsay statements may be preferable to forcing a child to testify, especially when the abuser is the child’s parent. P.K.A., 725 S.W.2d at 81.

Father argues that the P.KA hearsay exception should be limited to cases of sexual abuse, and should not apply in cases of physical or emotional abuse. It appears that we have not addressed whether the P.KA exception should apply in cases involving non-sexual child abuse. However, in Hord v. Morgan, the Western District considered whether the P.KA. exception can be utilized where there are allegations of non-sexual child abuse. Hord, 769 S.W.2d 443, 447 (Mo.App. W.D.1989). Concluding that the purpose of the P.KA exception was to prevent child abuse and the trauma that a child may experience through testifying, .the Western District determined that limiting the exception to sexual abuse cases would be inconsistent with that rationale. Id. We agree with the Western District and would permit a hearsay exception where, as here, a child reports to others physical or emotional abuse. As the Western District stated: “The goal of the exception is to prevent child abuse and to attempt to alleviate the consequent trauma that a child may experience through testifying.” Hord, 769 S.W.2d at 447 (emphasis in original).

In any event, even if the children’s statements were inadmissible hearsay, under the circumstances presented here, we are not required to reverse. Admission of evidence that is allegedly hearsay is only reversible error if the challenged evidence' prejudiced the complaining party. See Conoyer v. Conoyer, 695 S.W.2d 480, 482 (Mo.App. E.D.1985). A complaining party is not prejudiced if the evidence is merely cumulative to other admitted evidence. Id. This record contains considerable evidence in addition to the children’s statements demonstrating that Father abused A.A.T.N. and Annabelle, and accordingly, the children’s statements to Ms. Holzman and Ms. Hag-er were not prejudicial.

In his second point, Father also contends that the trial court did not make findings on all four statutory factors enumerated in Section 211.447.4(2). As we discussed above, the trial court’s findings regarding subsections (a), referring to mental condition, and (b), referring to chemical dependency, are sufficient under the statute. See C.F.C., 156 S.W.3d at 427. With respect to Subsection (c), Father appears to acknowledge that the trial court found severe and recurrent acts of abuse. Finally, although the trial court did not specifically address Subsection (d) in its discussion of Section 211.447.4(2), it did consider support issues in discussions of other sections. Scattered throughout the trial court’s written findings and conclusions, the trial court determined that Father brought food and clothing to the meetings, obtained adequate housing, did not pay monetary support and was never issued a support order. Point denied.

C. Section 211.447.4(6)-Unfít Parent

In his third point, Father contends that the record contains insufficient evidence that Father is an unfit parent and unable to appropriately care for A.A.T.N. for the foreseeable future as required by Section 211.447.4(6).

Termination is permitted under Section 211.447.4(6) if, inter alia,: (1) the “parent is unfit to be a party to the parent and child relationship because of a consistent pattern of committing a specific abuse” and (2) the parental unfitness is “of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child.” In the Interest of C.W., 64 S.W.3d 321 (Mo.App. W.D.2001). Past abuse alone is not a proper basis for terminating parental rights under Section 211.447.4(6). See In the Interest of P.C., 62 S.W.3d 600, 605 (Mo.App.W.D.2001). However, a trial court may consider a parent’s past conduct because it provides vital clues to the present and future. Id.

Here, there is sufficient evidence to support the trial court’s finding of a consistent pattern of committing specific abuse. The record clearly reflects that Father abused A.A.T.N. by hitting and stabbing her with a fork. Because A.A.T.N.’s lesions were in various stages of healing, Dr. Griffiths-Williams determined that they were inflicted over a period of time.

The trial court’s finding that Father will be unable to care appropriately for A.A.T.N. in the future is also supported by the record. Ms. Holzman testified that A.A.T.N. did not want to live with Father and A.A.T.N. continued to fear him. Ms. Holzman also explained that Father would not be able to participate in therapy with A.A.T.N. and predicted that the conditions which caused A.A.T.N.’s removal from Father’s care would not change in the future. Similarly, Ms. Hager testified that, if A.A.T.N. returned home, Father would have access to her and Mother would not be able to protect A.A.T.N. from him. In light of the foregoing, the trial court’s finding that Father will not be able to care for A.A.T.N. in the reasonably foreseeable future was supported by the evidence. See In the Interest of K.A.W. 133 S.W.3d 1, 20 (Mo.2004). Point denied.

D. Section 211.447.6-Best Interest of the Child

In his final point, Father contends that the trial court failed to comply with the requirements of Section 211.447.6. Section 211.447.6 directs the trial court to “evaluate and make findings” on seven factors, “when appropriate and applicable to the case.” See In the Interest of E.D.M., 126 S.W.3d 488, 497 (Mo.App. W.D.2004). The evaluation required “is a subjective assessment of evidence” and we do not reweigh the evidence upon appellate review. 158 S.W.3d at 283.

The Section 211.447.6 factors include: (1) the child’s emotional ties to the parent; (2) whether the parent has maintained regular visitation or contact with the child; (3) the extent of payment of child support or other maintenance for the cost of the child’s care; (4) whether the provision of additional services would likely bring about a lasting parental adjustment enabling a return of the child to the parent within a reasonable amount of time; (5) the parent’s disinterest or lack of commitment to the child; (6) whether the parent has been convicted of a felony; and (7) deliberate acts of the parent or parental awareness of deliberate acts of another that pose substantial risk of physical or mental harm to the child. In the Interest of E.D.H., 138 S.W.3d 761, 765-66 (Mo.App. E.D.2004).

In this case, the trial court made the following findings applicable to Section 211.447.6:(1) any emotional ties between A.A.T.N. and Father are not relevant because she will not be able to return to Father in any reasonable amount of time and her need for a permanent home outweighs any currently existing emotional ties; (2) Father maintained regular visitation with A.A.T.N.; (3) Father paid no support for A.A.T.N. and there was no order for him to pay a specific sum for her support; (4) additional services to Father were not likely to bring about a lasting parental adjustments enabling the return of A.A.T.N. to Father; (5) Father’s actions indicated a lack of commitment to A.A.T.N.; and (6) Father physically abused A.A.T.N. and her sister, Annabelle.

The record reflects ample evidence supporting the trial court’s findings that returning A.A.T.N. to Father’s care is not in her best interest. First, Father repeatedly abused A.A.T.N. and her sister. Furthermore, Ms. Holzman testified that she believed Father would hurt A.A.T.N. if she returned home. She stated that A.A.T.N. continued to fear him and that that the “threat of potential unsafety” would traumatize A.A.T.N. if she returned home. She also explained that Father would not be able to participate in therapy with A.A.T.N. because he did not acknowledge his abuse. She also predicted that the conditions which caused A.A.T.N.’s removal from the home would not change in the future.

Furthermore, Ms. Hager concluded that Mother would be unable to protect A.A.T.N. from Father if A.A.T.N. returned to Father’s care. Finally, Ms. Hager stated that A.A.T.N. did not want to live with Father because she feared he would hurt her. Under these circumstances, the trial court did not abuse its discretion by finding that termination was in A.A.T.N.’s best interest. Point denied.

Conclusion

The decision of the trial court is affirmed.

MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J., Concur.

      .The trial court also terminated A.A.T.N.'s mother’s parental rights. The termination of A.A.T.N.’s mother’s parental rights is not at issue here.

      . All further statutory references are to RSMo (2000) unless otherwise noted.

      . Father is not Annabelle’s biological parent and has no parental rights to her.

      . We will not address again Father's argument regarding judicial notice, because as discussed above, a trial court may take judicial notice of its own records in prior proceedings between the same parties when the same basic facts are at issue. C.M.W., 813 S.W.2d at 333.