In re B.S.B.

• Court: Missouri Court of Appeals
• Writing for the Court: Joseph M. Ellis
• Citation: In re B.S.B., 76 S.W.3d 318 (Mo. App. 2002)
• Decision Date: 11 June 2002
• Docket Number: No. WD 60835.,No. WD 60820.,WD 60820.,WD 60835.
• Parties: In the Interest of B.S.B. and B.A.B., Plaintiff, Juvenile Officer, Respondent, v. G.S.B. (Father), Appellant.

76 S.W.3d 318

In the Interest of B.S.B. and B.A.B., Plaintiff Juvenile Officer, Respondent, v. G.S.B. (Father), Appellant.

No. WD 60820.

No. WD 60835.

Missouri Court of Appeals, Western District.

June 11, 2002.

Michael P. Bandré, Harrisonville, for appellant.

Cathelene L. Winger, Harrisonville, for respondent.

James E. Hoke, Harrisonville, for plaintiffs.

Before LISA WHITE HARDWICK, Presiding Judge, JOSEPH M. ELLIS, Judge and RONALD R. HOLLIGER, Judge.

JOSEPH M. ELLIS, Judge.

G.S.B. ("Father") appeals from two judgments entered in the Circuit Court of Cass County terminating his parental rights to his natural son, B.S.B., and his natural daughter, B.A.B.

B.S.B. was born on July 11, 1988. B.A.B. was born on December 27, 1989. Father was married to the children's mother for about six years, although he testified that he did not remember exactly when they married. Father and Mother separated several times during the marriage and the children stayed with Father during those separations. The couple divorced in January of 1990. At the time of trial, the children had not seen their mother in six years.¹

The Division of Family Services ("the Division") first came into contact with Father and his children in December 1998. On December 1, 1998, the Division received a report alleging that there was no heat in the household, no way to cook, and the children were being left alone. Investigation revealed the report was unsubstantiated, but Appellant did request services from the Division. As a result, the Division provided the family with immediate assistance, giving them groceries and space heaters. The family was also referred to the Intensive In-Home Services Program and received counseling from an in-home therapist, clothing, bedding, furniture, transportation assistance, and other services.

On April 28, 1999, the Division received a hotline call alleging that the children had been left alone and that the home was unsanitary. Officers who responded to the call found the children alone in Father's home in Belton, Missouri, and discovered dirty dishes and piled clothing, as well as some dog feces in the home. The children were removed from the home and taken into protective custody.

On April 29, 1999, Cass County juvenile officer Douglas Oyer filed two petitions alleging that B.S.B. and B.A.B. were in need of care and treatment and requested that the court assume custody of the children. The petition alleged that Father had been arrested on April 28, 1999, on outstanding warrants in Kansas City, Missouri, for possession of a crack pipe and shoplifting. Father was unable to make bail, and B.S.B. and B.A.B. were left unsupervised in Father's home. On April 29, 1999, the juvenile judge entered two Orders of Protective Custody stating that probable cause existed to show that the children were without proper care, custody, or support and that the children were to be placed in the custody of the Division of Family Services. The children were placed in foster care.

It is unclear from the record how long Father was incarcerated, but it appears he was released within a few days after the entry of the Orders of Protection. He apparently lost possession of the household where he and the children had been residing because his first contact with the Division, shortly after his release, was to advise that he was staying with a high school friend, Mike James, in Eldon, Missouri. At that time, he left a telephone number where he could be reached. Eldon is approximately a two-and-a-half hour drive from Cass County, where the children were staying.

Sometime thereafter, social worker Deborah Buck talked to Father by telephone. She explained to Father that he would need to obtain housing suitable for himself and his children, and that, if that did not occur within a year, the Division would have to consider filing a petition to terminate Father's parental rights. To assist Father in maintaining a relationship with his children, the Division attempted to place the children with a foster family in Eldon. The Division was unable to locate a suitable family, however, and the children remained in foster care in Cass County. Buck also advised Father of social services that he could apply for, including Medicaid, housing assistance, and vocational rehabilitation.

The Division entered into at least five Written Service Agreements in an effort to reunite Father and his children between May 19, 1999, to April 3, 2000. The written agreements typically covered three-month periods of time and required Father to complete tasks such as securing appropriate housing for himself and the children, obtaining beds for the children, obtaining employment, completing a drug and alcohol assessment, visiting with the children, and attending weekly meetings with a therapist.

During this time, Father was permitted visits with his children on Sundays if he came and picked them up from foster care. During the first six months Father and children were separated, from May 1999 to November 1999, Father only visited his children three times. From November 1999 to February 2000, Father visited with his children one time. From February 2000 to May 2000, Father visited with his children three times.

Father failed to comply with many of the provisions of the Written Service Agreements, such as obtaining employment and suitable housing. But he did successfully comply with other parts of the agreements. He completed a drug assessment during the third written service agreement; he attended appointments every other week with his therapist during the fourth agreement; and he completed a psychological evaluation during the fifth agreement.

The Written Service Agreements did not include provisions requiring Father to pay child support. Thus, from April 1999 through September 2000, Father did not provide any financial support for the children, although he did provide them with items such as boxes of pop tarts, jewelry, and assistance with a coin collection. There was also testimony that Father, on at least one occasion, provided his daughter with a calling card.

The record reflects that Father held numerous temporary jobs prior to February 2000. He worked briefly at "Cargill" and "Scholastic." In addition, at one time or another, he apparently worked for a tree company, a cable company, and a disposal company.

Prior to his arrest and throughout the time his children were in foster care, Father suffered from a genetic condition that caused open sores to develop on his legs. The condition caused his legs to go numb and caused blood clots to develop. Father testified that the sores on his legs made it difficult for him to work and also prevented him from making the two-and-a-half hour drive to visit his children. Amy Heithoff, a registered nurse hired by Father's aunt, D.B., to assist Father, testified that Father had a genetic disorder known as "single leiden mutation," which caused problems with blood clotting. Nurse Heithoff testified that, when she first met Father, he had extensive bruising and open sores on his legs from his ankles to his knees. She also stated that Father would have had difficulty driving because he should not remain sitting for long periods of time and should stand for ten minutes out of every hour. Nurse Heithoff also testified that she informed the Division of Father's health problems.

In February 2000, the Division received notice that the Social Security Administration had determined that Father was disabled and qualified for disability benefits. Father's qualification for benefits was based on him having been disabled for almost one year. At this point, the Division released him from the employment provision of his Written Service Agreements. Moreover, as a result of the disability determination, Father received a lump sum payment of about $6,300 for an arrearage in disability benefits and began receiving a monthly disability payment. The children began receiving payments based on Father's disability in approximately October 2000. Father did not send any of the lump sum payment to the children and, while there is evidence that he spent a couple hundred dollars on cocaine, the record also reflects that he used the rest of the money to buy furniture, thereby complying with a requirement of the Service Agreements.

On October 13, 2000, at Father's request, the court approved Father's Motion for Placement and entered two orders placing the children in the care of their paternal aunt, L.Y., in Huxley, Iowa. The court noted that a home placement study had been conducted on L.Y. and that it was determined that she was capable of providing the necessary care for the children.

The children resided with their paternal aunt, L.Y., in Iowa from October 2000 until May 2001. The children continued to receive monthly payments based on Father's disability throughout this time. Because the distance was even greater than to Cass County, however, there were no in-person visits between Father and the children during this time. There was also evidence that Father made frequent efforts to contact the children by telephone and, for the most part, either talked to the children or left messages for them if they were out almost every week while they were in Iowa.

On April 10, 2001, the court held a statutory review hearing pursuant to § 210.720 and determined that it was not in the best interest of the children to return to Father's custody. On April 20, 2001, the juvenile officer filed motions to modify because L.Y. was scheduled to be in Europe during the summer and would be unable to care for the children. The motions requested that the children be removed from her home. On April 23, 2001, the court ordered that the children be returned to Missouri for placement in foster care.

Father contacted the Division on May 15, 2001, to arrange for visitation with his children. On May 17, 2001, the Division filed two petitions to terminate Father's parental...