B.A.F., In Interest of, WD

• Decision Date: 12 December 1989
• Docket Number: No. WD,WD
• Citation: 783 S.W.2d 932
• Parties: In the Interest of B.A.F., a Minor. 41909.
• Court: Missouri Court of Appeals

Page 932

783 S.W.2d 932

In the Interest of B.A.F., a Minor.

No. WD 41909.

Missouri Court of Appeals Western District.

Dec. 12, 1989.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Jan. 30, 1990.

Milton B. Garber, Fulton, for appellant.

Darwin A. Hindman, Jr., Columbia, for respondent.

Before LOWENSTEIN, P.J., and KENNEDY and GAITAN, JJ.

LOWENSTEIN, Judge.

This is an appeal from an order terminating the parental rights of the natural father, Richard Fowler, as to his son B.A.F. The judgment is affirmed.

On September 25, 1982 Fowler, in concert with his wife Nancy, the boy's mother, kidnapped a fifteen year old girl in St. Louis, Missouri. They took the girl to their home where Fowler raped and sodomized her. He was found guilty of one count of the class B felony of kidnapping for the purpose of committing the felonies of rape and forcible sodomy, one count of class A felony of forcible rape, and four counts of the class A felony of forcible sodomy. On September 2, 1983 Fowler was sentenced to the Department of Corrections for five years for kidnapping, twelve years for rape, and ten years for each sodomy conviction, the sentences to run concurrently. Nancy was also incarcerated for these crimes, but was released in July, 1987. Fowler has had several problems in prison, including the sale and consumption of drugs. Parole has been denied several times, Fowler has a conditional release date set in July, 1992.

B.A.F. was born on November 22, 1983 after Fowler was already in prison. The Division of Family Services (DFS) took B.A.F. into custody on November 23, 1983 and two days later placed him in a foster home where he has been ever since.

The juvenile officer filed a petition for termination of Fowler's parental rights on December 23, 1988. The petition for termination alleges it would be in the best interest of the child and statutory conditions exist for the termination pursuant to § 211.447.2(1), (2) and (3), RSMo 1986. The conditions alleged include: 1) Fowler has without good cause, left B.A.F. without any provision for parental support and without making arrangements to visit or communicate with B.A.F., although able to do so; 2) Fowler has repeatedly and continuously failed, although physically able, to provide B.A.F. with the care necessary for his physical, mental, or emotional health and development; and 3) B.A.F. has been under the jurisdiction of the Juvenile Court for a period of one year, and the conditions which led to the assumption of jurisdiction still persist and that there is little likelihood that those conditions will be remedied at an early date so that B.A.F. can be returned to Fowler in the near future and the continuation of the parent-child relationship, greatly diminishes B.A.F.'s prospects for early integration into a stable and permanent home.

The trial court made findings and terminated Fowler's parental rights to B.A.F. on all three grounds. This appeal followed. Other pertinent facts shall be discussed infra as needed.

The standard of review in a court tried case where the rights of a parent have been terminated is upon both the evidence and the law. In Interest of D.R.M., 780 S.W.2d 145, 146 (Mo.App.1989). The order will be sustained unless there is no substantial evidence to support it, unless it is contrary to the weight of the evidence, or unless it erroneously declares or applies the law. Id; In Interest of R.A.M., 755 S.W.2d 431, 435 (Mo.App.1988). This court will defer questions of credibility of a witness and choosing between conflicting evidence to the trial court, In Interest of R.H.S., 737 S.W.2d 227, 236 (Mo.App.1987), and will review the facts and the reasonable inferences therefrom in the light most favorable to the trial court's order. In Interest of A.R.M., 750 S.W.2d 86, 87 (Mo.App.1988).

Since the judgment may be sustained on any of the grounds, the court looks at the abandonment issue as dispositive. R.H.S., supra at 236.

Fowler contends the trial court erred because: 1) incarceration in and of itself shall not be grounds for termination of parental rights; and 2) the termination was not supported by clear, cogent and convincing evidence. In the instant case, the trial court correctly found Fowler abandoned B.A.F. pursuant to § 211.447.2(1). That section reads in pertinent part:

2. The juvenile court may terminate the rights of a parent to a child ... if it finds that the termination is in the best interest of the child and when it appears by clear, cogent and convincing evidence that one or more of the following grounds for termination exist:

(1) The child has been abandoned. The court shall find that the child has been abandoned if, for a period of six months or longer ... at the time of the filing of the petition:

* * * * * *

(b) The parent has without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so[.]

* * * * * *

3. When considering whether to terminate the parent-child relationship pursuant to subdivision (1) ... of subsection 2 of this section, the court shall evaluate and make findings on the following factors, when appropriate and applicable to the case:

(1) The emotional ties to the birth parent;

(2) The extent to which the...