Adoption C.M. v. E.M.B.R.

• Decision Date: 24 December 2013
• Docket Number: No. SD 32228.,SD 32228.
• Citation: 414 S.W.3d 622
• Parties: In re the ADOPTION OF C.M., a/k/a C.J.M., a Male Minor Child born 10–17–06, S.M. and M.M., Respondents, v. E.M.B.R., Appellant.
• Court: Missouri Court of Appeals

414 S.W.3d 622

In re the ADOPTION OF C.M., a/k/a C.J.M., a Male Minor Child born 10–17–06, S.M. and M.M., Respondents,

v.E.M.B.R., Appellant.

No. SD 32228.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 7, 2013.

Motion for Rehearing and/or Transfer to the Supreme Court Denied Oct. 29, 2013.

Application for Transfer Denied Dec. 24, 2013.

William J. Fleischaker, of Joplin, MO; Curtis E. Woods, of Kansas City, MO; and R. Omar Riojas and Christopher M. Huck, of Seattle, WA, for Appellant.

Joseph L. Hensley, of Joplin, MO, and Richard L. Schnake, of Springfield, MO, for Respondents.

Belinda K. Elliston, of Webb City, MO, for Juvenile Office.

Linda K. Thomas, of Springfield, MO, for Child.

Anthoney E. Rothert, of St. Louis, MO and Jennifer Nagda, of Chicago, IL, for Amici Curiae the Young Center for Immigrant Children's Rights at the University of Chicago.

Robert P. Berry, of St. Louis, MO, for Amici Curiae the National Immigrant Women's Advocacy Project, et al.

Marie Kenyon, of St. Louis, MO, for Amici Curiae Catholic Legal Assistance Ministry.

WILLIAM W. FRANCIS, JR., J.

E.M.B.R. (“Mother”),¹ appeals from a judgment entered by the Juvenile Division of the Circuit Court of Jasper County (“trial court”) on July 18, 2012, terminating her parental rights, and a judgment entered on July 30, 2012, granting a petition for adoption of her son, CM. (“Child”),² by S.M. and M.M., (collectively “Adoptive Parents”).

Motions Filed by Adoptive Parents

We begin our examination of this appeal with a “Motion to Dismiss for Violation of Briefing Rules” filed by Adoptive Parents.³Adoptive Parents argue that Mother's opening brief fails to comply with the requirements of Rule 84.04(c)⁴ for a proper statement of facts. The statement of facts submitted in Mother's brief tracks the procedural history of this case through In re Adoption of C.M.B.R., 332 S.W.3d 793 (Mo. banc 2011), and the trial court's “Findings of Fact, Conclusions of Law, and Judgment and Order Terminating Parental Rights” (“Judgment”) following a re-trial of this matter after the remand. Mother's statement of facts refers to the findings of fact and conclusions submitted by the trial court, but gives virtually no information as to the evidence before the trial court.

The purpose of Rule 84.04(c) is to “define the scope of the controversy and afford the appellate court an immediate, accurate, complete, and unbiased understanding of the facts of the case.” Thompson v. Flagstar Bank, FSB, 299 S.W.3d 311, 314 (Mo.App.S.D.2009) (internal quotation and citation omitted). It is not the function of this Court to develop the facts and thereby do the work of an advocate on appeal. See Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223, 225 (Mo.App.ST.L.D.1972). Here, Mother's statement of facts is not a “fair and concise statement of the facts relevant to the questions presented for determination without argument.” Rule 84.04(c). Mother's statement of facts also fails to identify evidence favorable to the Judgment. Not only is this a violation of Rule 84.04, but it completely fails to give “an immediate, accurate, and complete and unbiased understanding of the facts of the case.” McCullough v. McCullough, 195 S.W.3d 440, 442 (Mo.App.S.D.2006).

The points relied on section of Mother's brief is also deficient in that some points contain multiple points of error, are multifarious, and in certain cases, fail to state the legal reasons for a claim of reversible error. While it is within our authority to dismiss this appeal for these violations of briefing requirements, given the unusual nature of this case, and its history, we are reluctant to do so because Adoptive Parents' brief does address the points directly, and supplies this Court with a sufficient statement of facts to understand what happened in the underlying court, so we choose to review this case ex gratia, In re C.A.M., 282 S.W.3d 398, 405 n. 5 (Mo.App.S.D.2009), as opposed to a dismissal. Therefore, Adoptive Parents' Motion to Dismiss for Violation of Briefing Rules is denied.

Procedural Background ⁵

This appeal comes before this Court after the Supreme Court of Missouri ordered a new trial on all issues within the petition for adoption, as set forth in C.M.B.R.

On June 29, 2011, Adoptive Parents filed their “First Amended Petition for Adoption”(“Amended Petition”). Count I of the Amended Petition pled termination of Mother's parental rights pursuant to section 453.040(7), alleging Mother's consent was not necessary because Mother had willfully abandoned Child at least sixty days prior to the filing of the Amended Petition. Count II pled termination of parental rights under section 211.447⁶ due to Mother's alleged abandonment of Child, abuse or neglect of Child, and because Mother is unfit to be a party to the parent-child relationship. The Amended Petition also alleged termination of Mother's parental rights was in Child's best interest. Count III prayed the trial court grant Adoptive Parents' request to adopt Child. Discovery was commenced between the parties and evaluations were done of Mother, Adoptive Parents, and Child.

A new trial was held on February 28, 2012. Mother appeared in person with her four attorneys, one of which was Spanish speaking; an interpreter; and a consular representative of Guatemala. Adoptive Parents appeared in person and with counsel. Also present was the guardian ad litem (“GAL”) for Child, and counsel for the Jasper County Juvenile Office. By March 2, 2012, twelve witnesses had been presented but the parties had not presented all of their evidence. As a result, trial resumed on April 9, 2012, and concluded on April 13, 2012. In total, twenty witnesses testified, with approximately 1,750 pages of transcript, and over 160 exhibits were admitted into evidence. At the conclusion of the trial, the trial court invited the parties to submit proposed suggestions, findings, and orders. The trial court also ordered a transcript be prepared so the parties and the trial court would have it available. Mother filed a “Post–Trial Sur–Reply Brief,” a “Post–Trial Opening Brief,” and a “Post–Trial Reply Brief.” The trial court entered its Judgment on July 18, 2012.

Factual Background

We would be remiss not to emphasize that we relate the facts as we must view them under our standard of review. “We defer to the fact-findings of the juvenile court and consider all evidence and reasonable inferences in the light most favorable to the judgment.” In re N.J.S., 276 S.W.3d 397, 400 (Mo.App.E.D.2009). In fact, “[g]reater deference is granted to a trial court's determinations in custody and adoption proceedings than in other cases.” S.L.N. v. D.L.N., 167 S.W.3d 736, 741 (Mo.App.W.D.2005). When the evidence includes two reasonable but different inferences, this Court is “obligated to defer to the trial court's assessment of the evidence.” C.M.B.R., 332 S.W.3d at 815. “Accordingly, we are not free to credit evidence or inferences that favor the terminated parent. To the contrary, we must ignore these.” In re J.A.R., ––– S.W.3d ––––, ––––, 2013 WL 4432355, at *1 (Mo.App.S.D. Aug. 20, 2013).

Further, “we are mindful that the juvenile court was in a superior position to judge the credibility of the witnesses and that it was free to believe all, part, or none of the witnesses' testimony.” In re B.C.K., 103 S.W.3d 319, 322 (Mo.App.S.D.2003). Thus, we cannot ignore the trial court's express finding, after “ample opportunity to weigh the credibility of the testimony of each witness,” that the testimony of Mother and her family members was “riddled with inconsistencies, nonsensical explanations, and outright lies.”

Constrained by the foregoing, we offer a detailed timeline of events to explain the bases for the trial court's decision and for ours.

Mother is from a rural village in Guatemala. One of her brothers, Bartolome, and a sister, Maria,⁷ are undocumented immigrants living with their “spouses” and children in Carthage. Another brother, Jose, has lived off and on in Carthage working, and then returning to his family in Guatemala. Mother went through the second grade and speaks Spanish, but stated she could not read or write Spanish very well. At the time of trial, seven years after coming to the U.S., Mother stated she could not speak, read, or write English.

Mother has illegally entered the U.S. on at least two occasions. The first time occurred in June 2005, when she was smuggled across the border by a “coyote.” Mother was caught, detained for approximately a month, and then deported to Guatemala. She remained there for a short time and then re-entered the U.S. in the fall of 2005. This re-entry was also through the means of a “coyote,” paid for by Maria—approximately $4,000. Mother testified that in coming to the U.S. the second time, she was required to walk through the mountains and the desert for a total of 14 hours, over two days. She was then picked up in Houston, Texas, by a friend of Maria's and driven to Carthage. ⁸

Mother testified she met Child's biological father ⁹ while working at George's and became pregnant with Child. At some point, the biological father was arrested by Immigration officials and deported. Mother also has two other children. These children reside in Guatemala with two of Mother's sisters. The oldest is a boy, born May 3, 1997; the youngest is a girl,¹⁰ born December 21, 2003.¹¹

Mother has not seen either child for approximately seven years. Mother stated she had no “plans to see [my] children,” that if “God allows me to stay here, I'll stay,” and that she would prefer to be here, even though her children want to see her. If she is involuntarily deported from the U.S., Mother does not plan to reside with her children in Guatemala without Child. Instead, Mother indicated she will attempt to smuggle the children, along with herself, back into the U.S. despite the fact she may be caught, arrested, imprisoned, or even killed in the process.

Upon her arrival in the...