C.W. for Minors F.R.W. and B.L.W., Respondent, v. KEVIN HERLIHY (2026)

Factual and Procedural History 2

Mr. Kevin Herlihy (“Herlihy”) appeals the judgment of the Circuit Court of Clay County, Missouri (“circuit court”), that granted C.W.’s (“Father”)¹ petition for an order of protection on behalf of his two minor children, F.R.W. and B.L.W., against Herlihy. We affirm.

Herlihy and Father are neighbors. On June 16, 2025, in response to Herlihy repeatedly biking past the children and filming them without their permission while they waited for their school bus at their bus stop, Father filed a petition, pursuant to the Child Protection Orders Act (“CPOA”), for an order of protection on behalf of his children to stop Herlihy from stalking them.³

The circuit court held an evidentiary hearing on the petition. At the hearing, Father and his wife (“Mother”) testified to Herlihy's conduct and its effect on the children. The circuit court's judgment succinctly summarizes their testimony:

The Court makes the following findings: Respondent, Kevin Herlihy, a middle-aged man, filmed minor children F.R.W., age 10, and B.L.W[.], age 6 on June 9, 2025, June 10, 2025, and June 11, 2025.

On June 9th, the children were standing at their bus stop (located across the street from their home) and the Respondent rode his bike in front of the children filming them with his cell phone.

Again, on June 10th, while the children were standing at the bus stop, Respondent rode his bike in front of the children filming them with his cell phone.

On June 11, mother walked the children to the end of their driveway where they remained rather th[a]n cross the street to the bus stop. Respondent again filmed the children with his cell phone. B.L.W[.] was in tears on this date as he was so fearful regarding the events that occurred the past two days. The child would not walk across the street to the bus stop alone. On this date, the bus driver stopped to talk with parents about what had been occurring.

After that, a Clay County [Sheriff's] Deputy began waiting at the bus stop with the children.

Both parents testified their children feel distressed. Their son is anxious and their daughter is very uncomfortable. Father stated these events have caused him alarm and he finds these events distressing. Mother testified she feels the same and is fearful.

Respondent's acts constitute an unwanted course of conduct․

The Court finds filming grade school students, while waiting at a bus stop, serves no legitimate purpose.

The Court finds the actions by Respondent did cause actual alarm. Respondent caused both the children and the parents fear. F.R.W[.] and B.L.W[.] did not even walk to their assigned bus stop on June 11, 2025[,] because Respondent had ridden his bike directly in front of them while also filming the children the two days prior. B.L.W. was crying on the way to the bus stop on the same date.

The Court finds the fear was objectively reasonable. In fact, the course of conduct was alarming enough the bus driver investigated the events and a Clay County Sheriff's Deputy was posted at the bus stop thereafter. Young children alone at a bus stop, at the same time each day, a place in which they are required to be while having a middle-aged man riding a bike near the[m] day after day would certainly cause fear in all children and their parents.

Additionally, Mother also testified at the evidentiary hearing that, when the sheriff's deputy began waiting with the children, Herlihy stopped filming them and that, when the sheriff's deputy stopped waiting alongside the children, Herlihy resumed filming them without their consent. Despite attending the evidentiary hearing, Herlihy declined to present any evidence in his case-in-chief.

After the hearing, the circuit court issued a one-year order of protection against Herlihy, ordering him to stay fifty feet away from the children and to stop filming them—among other conditions. Herlihy timely appealed.

Point I

In Point I, Herlihy argues that the CPOA only authorizes an order of protection upon a finding of domestic violence and that, because he is not a member of the protected children's household nor their relative, he could not have committed an act of domestic violence. We disagree.

The CPOA authorizes a petitioner to seek an order of protection from stalking by any person—not just those with a household relationship to the victim—even when the petition does not seek an order of protection from domestic violence: “An order of protection for a child who has been subject to domestic violence by a present or former household member or sexual assault or stalking by any person may be sought under sections 455.500 to 455.538 by the filing of a verified petition alleging such domestic violence, stalking, or sexual assault by the respondent.” § 455.505.1 (emphasis added). Furthermore, the CPOA also explicitly authorizes the entry of a full order of protection from stalking—not just domestic violence: “Any full order of protection granted under sections 455.500 to 455.538 shall be to protect the victim from domestic violence, including danger to the child's pet, stalking, and sexual assault ․” § 455.523.1(1) (emphasis added).

Missouri appellate courts have consistently followed this interpretation—that the CPOA authorizes the circuit court to issue a child protection order from stalking against any person, not just against the protected child's relatives and household members. See S.N.L. v. A.B., 550 S.W.3d 514, 517 (Mo. App. E.D. 2017) (“It is clear the CPOA is intended to provide a means of seeking relief for the stalking of a child by anyone, and the protection in that regard is not directed against only household members.”); M.L.G. v. R.W., 406 S.W.3d 115, 117 n.3 (Mo. App. E.D. 2013) (“Because M.L.G. and R.W. were not family members or members of the same household, M.L.G. could only seek an order of protection based upon an allegation of stalking.” (citing Dennis v. Henley, 314 S.W.3d 786, 789 (Mo. App. S.D. 2010))); Stiers v. Bernicky, 174 S.W.3d 551, 554 (Mo. App. W.D. 2005) (refusing to consider a petition for a child protection order against a neighbor on the basis of alleged sex abuse because “[p]hysical, sexual, or emotional abuse are grounds for protection only when a current or former household member commits that abuse” but entertaining the same petition on the basis of stalking because “[s]talking, on the other hand, is grounds for a protective order even if the perpetrator is not a household member”); T.L.H. v. Pope (In re A.T.H.), 37 S.W.3d 423, 427 (Mo. App. S.D. 2001) (“While physical, sexual, and emotional abuse are only referred to in the statute in the context of an adult household member, it is clear that the legislature in amending the Act intended to provide a means of seeking relief for the stalking of a child by anyone, and that the protection in that regard was not directed against only household members.”).

Point I is denied.

Point II

In Point II, Herlihy argues the trial court erred in issuing the order of protection because Father failed to present sufficient evidence to demonstrate that Herlihy stalked the children. In evaluating whether Father presented sufficient evidence to justify an order of protection from stalking, we are mindful of the purpose of the CPOA—to provide a means of seeking relief from the stalking of a child perpetrated by any person, even those outside of the child's household—and of the CPOA's potential for abuse:

[A] cautionary note is in order. In amending the Adult Abuse Act to include stalking, our legislature responded to increased public awareness and media attention devoted to the stalking of an individual. The laudatory purpose is to prevent potential violence, and unnecessary and unjustified infliction of emotional distress. However, a careful balance must be achieved for a statute addressing stalking to be effective. Stalking statutes must be defined as broadly as possible to maximize victim protection, but narrowly enough to prevent serious abuse. The potential for abuse of the stalking provision of the Adult Abuse Act is great. And, the harm that can result is both real and significant, not the least of which will be the stigma that attaches by virtue of a person having been found to be a stalker. Moreover, such a finding could lead to criminal prosecution for violation of the criminal stalking statute, § 565.225. Thus, it is incumbent that the trial courts exercise great vigilance to prevent abuse of the stalking provisions in the Adult Abuse Act and in making sure that sufficient credible evidence exists to support all elements of the statute before entering a protective order.

Wallace v. Van Pelt, 969 S.W.2d 380, 387 (Mo. App. W.D. 1998) (citation modified); see also R.J.D. v. Gauert, 622 S.W.3d 703, 709 (Mo. App. W.D. 2021) (“The stalking provision of the Act was not meant to be a panacea for the minor arguments that frequently occur between neighbors.” (citation modified)).

The elements required for an order of protection from stalking under the CPOA are the same as those required for an adult order of protection from stalking: “[T]he statutory changes made to the CPOA do not distinguish between the definitions of alarm or stalking for an Adult Order of Protection and a Child Order of Protection. For both, the standard of stalking and alarm are defined by Section 455.010(14).”⁴ S.M.W. v. V.M., 597 S.W.3d 779, 785 (Mo. App. E.D. 2020). Section 455.010(15) defines stalking as, “when any person purposely engages in an unwanted course of conduct that causes alarm to another person, or a person who resides together in the same household with the person seeking the order of protection when it is reasonable in that person's situation to have been alarmed by the conduct.” Section 455.010(15)(b) further defines “course of conduct” as “two or more acts that serve no legitimate purpose including, but not limited to, acts in which the stalker directly, indirectly, or through a third party follows, monitors, observes, surveils, threatens, or communicates to a person by any action, method, or device.”

Here, Herlihy does not contest the trial court's findings that his conduct—repeatedly filming two grade-school-aged children without their consent and who were simply waiting for their school bus in their own driveway and at their designated bus stop—was unwanted, constituted a series of connected acts, and such acts served no legitimate purpose. Herlihy argues only that Father failed to present sufficient evidence that Herlihy's admittedly unwanted course of conduct serving no legitimate purpose satisfied the statutory element of alarm.

“Conduct causes alarm when it puts the petitioner in ‘fear of danger of physical harm[.]’ ” S.M. v. Deierling, 717 S.W.3d 790, 795 (Mo. App. W.D. 2025) (alteration in original) (quoting § 455.010(15)(a)). “Alarm has a subjective and objective component.” Jones v. Standfuss, 590 S.W.3d 395, 398 (Mo. App. W.D. 2019) (quoting E.D.H. v. T.J., 559 S.W.3d 60, 64 (Mo. App. E.D. 2018)). “To establish the element of alarm, a petitioner must prove by a preponderance of the evidence that he or she subjectively fears danger of physical harm and a reasonable person in the same situation would fear danger of physical harm.” Id. (citing E.D.H., 559 S.W.3d at 64; Binggeli v. Hammond, 300 S.W.3d 621, 623-24 (Mo. App. W.D. 2010)). “We look at the entire course of conduct, and not each individual act in isolation, to determine if the petitioner was reasonably alarmed. Conduct may be objectively alarming if it would be reasonable to conclude that such conduct could have escalated further to physical harm.” Deierling, 717 S.W.3d at 795 (citation omitted). The alarm of a person living in the same household as a victim is sufficient to satisfy a claim of stalking:

The added sentence providing for an additional person, living in the same household with the victim of the stalking, to be alarmed by the stalking (and thus trigger the application of the statute) yet not be the victim of the stalking at a time when the General Assembly was adding definitions related to child stalking to Section 455.010 is a clear indication the General Assembly had in mind to provide a remedy for a parent alarmed by the conduct of another in stalking her child to seek a protective order for her child.

S.N.L., 550 S.W.3d at 518 (citing § 455.010(14) (2011) (extending the definition of stalking to consider the alarm of “a person who resides together in the same household with the person seeking the order of protection”)).

Herlihy contends Father's evidence failed to establish either prong of the alarm element.

Regarding the subjective alarm prong, Herlihy argues that Mother and Father failed to present any evidence supporting their subjective alarm for the children because they testified only to a bare affirmation of alarm. Herlihy is correct that a petitioner cannot satisfy the requirement of subjective alarm by asserting it in a conclusory manner:

Here, the conduct described at trial does not constitute stalking in that Husband did not allege, much less prove, fear of danger of physical harm at the hands of Wife․ When asked on direct examination whether Wife ever made threats to him, Husband stated under oath that she had not. At his attorney's prompting, Husband simply affirmed that Wife's conduct caused him “alarm.”

While the statutory definition of stalking requires alarm, a plaintiff is required to do more than simply assert a bare answer of “yes” when asked if he was alarmed. A plaintiff must show that a defendant's conduct caused him fear of danger of physical harm as stated in the statutory definition of alarm. Here, Husband has provided no proof of such fear. Husband proffered no evidence of any physical altercations or other events that would suggest Wife's conduct caused him fear of danger of physical harm. More importantly, Husband failed to testify that he was afraid of Wife and, specifically, afraid of physical harm.

See Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo. App. E.D. 2007) (citation omitted) (holding the petitioner's conclusory testimony on alarm insufficient to justify a finding of stalking).

Here, however, Mother and Father presented much more evidence supporting their claims of subjective alarm. Mother specifically stated not only that she felt “alarmed” but also that she feared for the physical safety of her family. Furthermore, Mother also testified to actions she took in response to Herlihy's conduct that indicated her subjective alarm: she began standing alongside the children at the bus stop; after Herlihy's actions continued, she made the children wait in their driveway instead of the bus stop; and she supported having the sheriff's deputy posted at the bus stop with the children to provide protection to the children. These actions—designed to keep the children protected from Herlihy—go well beyond a conclusory assertion of subjective alarm and adequately support the circuit court's conclusion that Mother subjectively feared for her children's safety. See N.C. v. Y.Q.L., 609 S.W.3d 56, 60 (Mo. App. E.D. 2020) (considering N.C.’s decision to stop attending her religious service to avoid Y.Q.L. as evidence supporting N.C.’s claim of subjective alarm). We defer to the circuit court's credibility determination that Mother subjectively feared that Herlihy could escalate his encounters with the children to physical harm. See Patterson v. Pilot, 399 S.W.3d 889, 900 (Mo. App. S.D. 2013) (“The trial judge is in the best position ․ to determine the existence of any reasonable apprehension of abuse that a petitioner may harbor[.]” (internal quotation mark omitted)).

The record also contains sufficient evidence to support a finding that the children subjectively feared physical harm from Herlihy. Here, Mother and Father testified that the children were crying and expressed emotional distress due to Herlihy's conduct. Based upon this evidence, the circuit court could have reasonably inferred that the children were upset because they feared that Herlihy, an adult who refused to leave them alone, would physically harm them. See Weeks v. City of St. Louis, 721 S.W.3d 873, 877 (Mo. banc 2025) (“When the evidence poses two reasonable but different conclusions, appellate courts must defer to the circuit court's assessment of that evidence.” (quoting Ivie v. Smith, 439 S.W.3d 189, 206 (Mo. banc 2014))).

Moving to the objective prong, Herlihy argues that no reasonable person would have feared for the children's physical safety because he never physically confronted the children or threatened to physically harm them. Again, we disagree.

For example, in N.C., 609 S.W.3d at 58, Y.Q.L., a psychiatric patient treated by N.C., approached N.C. during two separate religious services to propose a romantic relationship. Id. N.C. rejected Y.Q.L.’s advances on both occasions and stopped attending future services to avoid him. Id. Nonetheless, Y.Q.L. persisted and sent a series of emails to N.C. that became more and more delusional and included assertions that they had been a couple in a past life and that N.C. would be Y.Q.L.’s future wife. Id. Y.Q.L. never threatened to physically harm N.C., yet when Y.Q.L. challenged the order of protection on the basis that N.C. failed to provide sufficient evidence of objective alarm, the order of protection was affirmed because “a reasonable person would have feared physical harm.” See id. at 60.

Here, when deferring to the credibility determinations of the circuit court and viewing the record in the light most favorable to the judgment, we find ample evidence to support the circuit court's finding that Mother and Father's alarm was objectively reasonable. Herlihy, an adult man, initiated several unwanted encounters with two grade-school-aged children at their designated bus stop—a place where they must wait at predictable times on school days. Herlihy continued this conduct lacking in any legitimate purpose even after upsetting the children to the point of causing them to cry and even after Mother took steps to keep Herlihy away from them. This course of conduct was so concerning to others outside the family that the school bus driver spoke with the children's parents about Herlihy's bizarre conduct. Finally, the children's school and the sheriff's office agreed that Herlihy's conduct was concerning enough to justify devoting a school resource officer—a sheriff's deputy—to monitor the bus stop for several days. This intervention unquestionably indicated to Herlihy that his conduct was unwanted and was concerning: he ceased to approach the children while the sheriff's deputy monitored the bus stop. Despite this unmistakable message, Herlihy resumed his conduct as soon as the deterrent of law enforcement was removed from the bus stop.

Furthermore, Herlihy attended the hearing and had the opportunity to present evidence to dispute Mother's and Father's accounts of the incidents, to provide an innocent explanation for his conduct, or to show that the reactions of the children, the parents, the children's school, and the sheriff's office to Herlihy's conduct were unreasonable. Instead, Herlihy declined to present any evidence.

We agree with the circuit court's conclusion that, under these circumstances, a reasonable person would have feared for the physical safety of Mother and Father's children given the possibility that Herlihy's unwanted actions could escalate to a physical altercation if the children were required to wait at the bus stop without the deterrent of an adult presence.

Point II is denied.⁵

Conclusion

The judgment of the circuit court is affirmed.

FOOTNOTES

1.   Pursuant to the directive of section 595.226.1, we do not include any information that could be used to identify a victim of stalking, such as the full names of the minor children and their parents. All statutory references are to THE REVISED STATUTES OF MISSOURI (2016), as supplemented through June 16, 2025, unless otherwise indicated.

3.   Section 455.503.2(1) authorizes “[a] parent or guardian of the victim” to file a petition for an order of protection.

4.   The definition of stalking and its subparts were renumbered from 455.010(14) to 455.010(15) by amendment, effective August 28, 2021. This amendment did not make any changes to the definition of stalking or its subparts that are relevant to this opinion.

5.   In the argument section of Point II, Herlihy asserts that Father failed to plead facts sufficient to support a claim of stalking because he did not plead that Herlihy “caused or attempted to cause physical harm, or that [Herlihy] placed or attempted to place the children in fear of physical harm.” Herlihy's argument does not accurately recite Father's pleadings. In Father's petition for an order of protection, he stated: “[Respondent] stalked the child(ren). Two or more times Respondent followed the child(ren), watched the child(ren), threatened the child(ren), communicated with the child(ren), or caused somebody to do those things to the child(ren). It caused the child(ren) to be in fear of physical harm.” (Emphasis added.) These allegations are sufficient to support a claim of stalking in which the children were alleged to have been placed in fear of physical harm by the stalker—Herlihy.

Mark D. Pfeiffer, Judge

W. Douglas Thomson, Presiding Judge, and Lisa White Hardwick, Judge, concur.