Greene Cnty. Juvenile Office v. C.V.B. (In re Y.B.)

• Docket Number: SD37863,SD37864
• Decision Date: 06 June 2023
• Parties: IN THE INTEREST OF: Y.B. and Y.M., minor children under seventeen years of age. v. C.V.B., Respondent-Appellant. GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent,
• Court: Missouri Court of Appeals

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IN THE INTEREST OF: Y.B. and Y.M., minor children under seventeen years of age.

GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent, v. C.V.B., Respondent-Appellant.

Nos. SD37863, SD37864

Court of Appeals of Missouri, Southern District, In Division

June 6, 2023

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Richard Zerr, Senior Judge

OPINION

GINGER K. GOOCH, J.

C.V.B ("Mother") appeals separate judgments terminating her parental rights to her children, Y.B. and Y.M (collectively, the "Children"). The appeals were consolidated for our review. In her only point on appeal Mother alleges the trial court erred in failing to provide her a qualified interpreter under Sections 476.753.1(1) and 476.750(5) for the second day of the two-day parental rights termination hearing where she did not execute a written waiver of the right to a qualified interpreter under Section 476.760.3.^[1] Mother did not preserve this issue for review, and we decline plain error review because Mother has not met her burden of establishing manifest injustice or miscarriage of justice from the claimed error. We affirm the judgments of the trial court.

Factual Background and Procedural History

Mother does not challenge the grounds for termination found by the trial court or that termination of her parental rights is in the Children's best interest. Therefore, we do not recite the evidence supporting those findings.

The Juvenile Office filed petitions to terminate Mother's parental rights to the Children on March 4, 2021. In May 2021, Mother filed Motions for Children's Division to Pay Interpreter Fees, requesting the Children's Division be required to pay for interpreters for up to 30 hours outside of court hearings. The trial court granted the motions for up to 10 hours of interpreter fees outside of court hearings.

The trial court conducted the hearing on the termination petitions on October 17 and 19, 2022. On October 17, Mother appeared in person and with counsel and with Mother's duly appointed guardian ad litem ("GAL"). Loretta Crews ("Crews") and Tara Mavis ("Mavis") two court-authorized American Sign Language ("ASL") interpreters appeared and confirmed they had interpreted for Mother previously, they believed they could maintain and have a clear interpreting relationship with Mother, that they had never had a problem with Mother lacking an understanding of sign language, that they would ask the trial court to stop if they at any point believed Mother was not clearly understanding what was being said, and that they would ask for more time if they believed Mother needed more time to understand the proceedings. After this exchange, the trial court swore in both interpreters. Mother's counsel verbally asked for a continuance of the hearing, which the trial court denied. Mother's verbal request for continuance did not relate to the adequacy of the auxiliary aids and services provided to her but was instead based on (1) her desire to hire private counsel, (2) her desire for more time to attempt reunification with the Children, and (3) because she had requested a different interpreter for visits with the Children because she believed the interpreter was interfering with her bonding with the Children.

On October 19, Mother appeared by Webex through audio only with no record explanation of why Mother did not or could not use the video function of Webex. Mother again appeared with counsel and with Mother's GAL. Crews and Mavis also appeared. In addition, two other interpreters appeared to help Mother with the Video Relay Service ("VRS") interpreting system. As to these two interpreters, the trial court noted they "are not certified court interpreters, but they are regularly engaged in the business and activity of interpretation." Mother's counsel renewed her verbal request for a continuance of the hearing date, which the trial court again denied. As to Mother's failure to appear in person on October 19, the trial court discussed the matter extensively on the record, concluding:

[W]e are using an interpreter who is not court certified, we're using that interpreter because of [M]other's decision to not appear in person today. And I recognize she has a -- a distance issue, where she's traveled some distance on Monday and indicated she's gotten difficulty traveling that distance today. But, nonetheless, she has, I believe, an obligation to be present in person if she wants to participate in that fashion. And her decision to not appear in person today and to appear through the use of a non-certified interpreter of her choosing, I believe should not prohibit us from proceeding today in moving this case on towards resolution.

.... So with that understanding, once again, as -- as untidy as it might be, I believe that [M]other has waived her right to be physically present and does so knowingly; I believe that she has asked the Court to allow her appearance today virtually by the use of a non-certified court reporter -- a non-certified interpreter, excuse me. While there is certainly infirmity, and that's not the preferred process, I do believe that she's requested that, and I don't believe that anyone is -- is -other than perhaps herself, harmed by that decision. And rather than further exposing the -- the [C]hildren in this case to prolonged time in a custodial setting away from permanency, I believe that the better practice for me would be to go ahead and proceed with the matter today, and I'm going to so do.

At no point did Mother's counsel object that Mother had not been provided with requested auxiliary aids or services. Likewise, at no point did Mother's counsel raise whether Mother should have to waive in writing her right to receive the help of a qualified interpreter. Instead, Mother's counsel testified:

THE COURT: Okay. Now while we were off the record, I think you were able to speak with [Mother] via the interpreter that she has selected to use today; is that right?

[Mother's Counsel]: Correct.

THE COURT: Does [Mother] intend to testify today?

[Mother's Counsel]: She does not.

THE COURT: And you made it clear to [Mother] that she's got the right to testify today?

[Mother's Counsel]: I did, Your Honor.

THE COURT: Did you make it clear to [Mother] that she has the right to be present today in person to hear the report of the [GAL] and to ask any questions of the [GAL]?

[Mother's Counsel]: I did, Your Honor.

THE COURT: Do you believe that [Mother] understands the communication you've had with her about her rights?

[Mother's Counsel]: I do.

THE COURT: Did you also discuss with [Mother] the possibility of her presenting any other witnesses on her behalf?

[Mother's Counsel]: I did.

THE COURT: Did [Mother] indicate to you that she wishes to present any other evidence, any other evidence in this case?

[Mother's Counsel]: She did not.

THE COURT: Do you believe that [Mother] understands that by using the non-certified interpreter which she has selected to use today, that she does so at her own peril?

[Mother's Counsel]: Yes, Your Honor.

As to Mother's failure to appear in person on October 19, Mother's GAL testified:

THE COURT: Would you like to weigh in on the issue of [Mother's] appearance today and non-appearance and her testifying or not testifying?

[Mother's GAL]: Your Honor, I do believe that [Mother] has the competency to understand that she was served -

INTERPRETER 6143: And this -- Your Honor, I apologize. This is Interpreter 6143. The -- if it's the GAL that's speaking, the microphone is very far away, and I want to be able to make sure that the interpretation is able to be heard.

THE COURT: Okay, thank -- thank you for that.

[Mother's GAL]: Is this better? Can you hear me?

INTERPRETER 6143: Yes, ma'am. And currently we're going to be doing a switch with another interpreter. That interpreter's ID is 6926. Here is -- one moment, please.

THE COURT: Okay.

INTERPRETER 6926: All right. This is Interpreter 6926. We can continue with this conversation.

[Mother's GAL]: Thank you.

THE COURT: Go ahead.

[Mother's GAL]: I have been appointed to this case since March 13, 2020. I have met with [Mother] both in person with an interpreter, as well as spoken to her by phone and through her friend . . . on numerous occasions. I do believe that [Mother] has the competency to understand that she was served with court papers regarding the termination of parental rights trial that has been scheduled on this date. I do believe that [Mother] has the capacity to understand that she was to participate. [Mother] did participate on Monday. We did discuss on Monday that we were going to reappear here today at 9:00 a.m. I do believe that [Mother] chose of her own volition to appear by Webex through the VRS interpreter. So I do believe that [Mother] has the capacity to understand the requirements of her to participate in this case and that she did willingly and knowingly choose not to appear. [Mother] has, on numerous occasions, made choices whether or not to appear in person or to appear virtually, and I would be comfortable moving forward using the VRS interpreters, as per [M]other's choice to appear by Webex.

The trial court held the hearing on October 19. Neither Mother nor Father presented evidence. Mother's GAL and the Children's GAL presented their recommendations and the trial court heard argument of counsel before taking the matter under advisement. On November 8, 2022, the trial court entered its judgment in each case terminating Mother's parental rights. The trial court included in each judgment the following language concerning auxiliary aids and services provided to Mother.

[Mother] suffers from profound hearing loss but appears to be able to effectively use [ASL] or other signs.^[2] Prior to the hearing the Court determined the

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