D.E.J. v. G.H.B., WD

• Decision Date: 16 March 1982
• Docket Number: No. WD,WD
• Parties: In the Interest of: D.E.J., J.C.D., M.M.S., Respondents, v. G.H.B., Appellant. 32604.
• Court: Missouri Court of Appeals

Page 113

631 S.W.2d 113

In the Interest of: D.E.J., J.C.D., M.M.S., Respondents, v. G.H.B., Appellant.

No. WD 32604.

Missouri Court of Appeals, Western District.

March 16, 1982.

Theodore M. Kranitz, Kranitz & Kranitz, St. Joseph, for appellant.

Robert B. Randolph, St. Joseph, for respondents.

Before KENNEDY, P. J., and SHANGLER and WASSERSTROM, JJ.

SHANGLER, Judge.

The natural mother appeals the orders by the circuit court of Buchanan County to terminate parental right to each of her three children, DEJ, JCD and MMS. Each of the children was the offspring of a different father and only the boy JCD was of legitimate wedlock. The genetic fathers do not appeal the orders of termination and the adjudications are final as to them.

These proceedings came to this court for review by earlier appeal but were remanded to the court of adjudication, without determination of any substantive issue, for the entry of the factual finding § 211.482, RSMo 1978 prescribes as a predicate for a valid order of termination of parental right. (See In the Interest of D.E.J., J.C.D. and M.M.S. v. G.H.B., 609 S.W.2d 472, 474(2) (Mo.App.1980) ). That directive of our mandate was met and the causes are in posture for appellate review.

The orders to terminate the parental rights as to each child rest on separate petitions. The ground each petition alleges to invoke the judicial power to terminate the parental right ¹ conforms with § 211.447.2(2)(h)b, RSMo 1978:

§ 211.447.2: The juvenile court may, upon a petition filed by the juvenile officer, terminate the rights of parent to a child if it finds that such termination is in the best interest of the child and one or more of the following conditions are found to exist:

(2) When it appears by clear, cogent and convincing evidence that one or more of the following conditions exist:

(h) The child has come under the jurisdiction of the juvenile court pursuant to the provisions of subdivision (1), paragraph (a), (b) or (c) of section 211.031, and pursuant to an order of the court under section 211.181, and thereafter:

b. The custody of the child has not been with his parents for six months or longer, or the child has been under the jurisdiction of the court for one year or longer, immediately prior to the filing of the petition to terminate, and the parent has failed, on a continuing basis, to rectify the conditions which formed the basis of the petition filed under section 211.031, and the order entered under section 211.181, and there is reasonable cause to believe that the parent will not, even if given more time, rectify those conditions on a continuing basis, and that the juvenile officer, division of family services or other agency has used reasonable, diligent and continuing efforts to aid the parent to rectify the conditions, and provide on a continuing basis a proper home for the child. (emphasis added)

The conditions which induced juvenile court jurisdiction over each child under §§ 211.031 and 211.181 in the first instance was, according to those several petitions and orders:

that the natural mother (parents) (have) failed to provide care, custody, and support (so that) this child ... is in need of the care and protection of the Court. ²

It is these conditions which the subsequent petitions to terminate the parental relations allege remain unrectified, and it is these conditions which the orders of the court adjudicate as grounds to terminate the right of the parents to each of the children.

The boy JCD (born on June 9, 1970) was adjudicated a ward of the juvenile court on April 11, 1973, and ordered into the temporary custody of the Division of Family Services for foster home placement, where he remains. The girl MMS (born on January 12, 1974) and the boy DEJ (born on May 21, 1975) were adjudicated wards of the juvenile court on October 29, 1975, and ordered into the temporary custody of the Division of Family Services for foster home placement, where they remain. (Thus, for most of their lives, the children have been removed from parental custody.) These formal orders also directed, in various terms, the Division of Family Services to "work with the mother and child in anticipation of returning the child to his mother when she has established a suitable home and environment to properly care for the child."

The mother G was twenty-eight years of age at the date of the termination proceeding. ³ Her domestic career spanned five marriages interspersed with episodes of concupiscence. One of the marriages was bigamous, albeit not as her witting act. Two of her three children were born out of wedlock.

The first marriage was to JRD and produced her only legitimate child, the son JCD (born June 9, 1970). G separated from husband JRD in October of 1970. Then in January of 1971 G married JWJ. They separated and G thereupon took up residence and cohabitation with NS. G became pregnant by NS, separated from him, and in May of 1973 traveled to Oregon to be with JWJ, still the legitimate husband. G gave birth to her second child, the girl MMS (on January 12, 1974), then returned to Missouri and bore another child (on May 21, 1975). ⁴ G, with daughter MMS and son DEJ in menage, resumed domestic intimacy with NS in September of 1975. NS abused G and the children. G was prompted to go to California and so relinquished the children MMS and DEJ to the Division of Family Services. The juvenile court in due course assumed jurisdiction over the children MMS and DEJ by the separate petitions and orders (already described) brought and adjudicated on October 29, 1975, under §§ 211.031 and 211.181.

The mother G returned to Missouri and resumed domestic relations with N. ⁵ In that interim, G was convicted for fraudulent checks and in February of 1976 was jailed and given probation. NS about then was also committed, but to a Colorado prison. Then, in November of 1976, G suffered revocation of probation for failure to make restitution and was recommitted. G was released from jail on that sentence in February of 1977. Then in July of 1977 G married DG, whom she met while in service of the fraudulent check term. DG was taken into police custody soon thereafter, and that liaison ended. ⁶ G was married to fifth husband GB at the time of the termination proceedings in May of 1979 under our review.

The complaint which brought the firstborn JCD to the attention of the juvenile court in March of 1973-and then culminated in the order to terminate the parental right-was a complaint of physical abuse. That was not the first episode of neglect or want of maternal care for that child. As early as September of 1972, when JCD was two years old, the mother G simply left the child with her former husband (and father of the boy) JRD and his then wife for their permanent care. The state of the child (vermin-ridden and excessively dirty) was such as to prompt complaint to the juvenile court office. Then, in November of 1972 the mother G informed the juvenile court she intended to commit herself to the State Hospital from fear she would harm her son and was granted permission to place the boy in foster care. ⁷ In December of 1972 G was ready to relinquish the son JCD for adoption by her mother and stepfather, executed the documents to that end, but had a change of heart and was allowed to withdraw the proceedings by the juvenile court judge. Then G established residence with a female friend and the domestic conditions were deemed sufficiently adequate for the return of son JCD to the mother. After the lapse of about a month, in March of 1973, the Division of Family Services was notified by a physician that JCD was treated for severe hand burns and body bruises. The child also suffered with scarlet fever. ⁸ That complaint led to the formal petition and adjudication of neglect, the return of the child to foster care and, ultimately, to the order to terminate the parental right.

The children MMS and DEJ came to the notice of the juvenile court by the initiatives of the mother, herself. In September of 1975, G once again considered commitment to the hospital for treatment of mental disturbance. That event appears to have been prompted by one of the recurrent incidents of physical abuse inflicted by NS. G felt she could not care for the children and sought to place them in foster care. She relented, but then determined to go to California and once again to place daughter MMS (then less than two years old) and son DEJ (then four months old) in foster care. Then, within the month, G returned to Missouri, resumed domestic relations with NS, and sought return of all the children-JCD, MMS and DEJ. The juvenile court denied the request and continued the children in placement. Then in July of 1976 the mother, with remarriage to first husband JRD and removal to California in contemplation, again requested the court to restore custody of all three children. The court considered the circumstances too unstable, and denied request. The sequence of conviction, probation, revocation and service of sentence ensued, and the other peregrinations we have already described.

The proceedings to terminate the parental rights to the three children, JCD, MMS and DEJ commenced in May of 1979. The month before, the mother G married fifth husband GB; she was twenty-eight and he, thirty-five years of age. The husband was employed as a boiler operator, a skill learned in the penitentiary. He had recently overcome a tendency to excessive alcoholic drink. G was also gainfully employed on a special project with the Division of Family Services. The combined net income was $680 per month. They lived in an owned mobile home on the acreage of a friend near Jefferson City. GB expressed to the court readiness to assume the obligation of support of the three children. In recent weeks, G and GB had visited the children regularly. G requested the custody of the three children, the grant of the actual custody of the oldest child JCD immediately, but to...