In re C.K.

• Decision Date: 09 May 2007
• Docket Number: No. WD 67474.,WD 67474.
• Parties: In the Interest of C.K. and J.K., Jr.
• Court: Missouri Court of Appeals

221 S.W.3d 467

In the Interest of C.K. and J.K., Jr.

No. WD 67474.

Missouri Court of Appeals, Western District.

May 9, 2007.

Marcos Antonio Barbosa, Kansas City, for Appellant.

Gerald McGonagle, Kansas City, Gary Lee Gardner, Office of Attorney General, Jefferson City; Anastacia Renae Adamson, Kansas City, for Respondent.

PAUL M. SPINDEN, Presiding Judge.

M.T. appeals the circuit court's judgment terminating her right to parent her children, C.K. and J.K., Jr.,¹ and granting M.E.H.'s and D.H.'s petition to adopt the children. M.T. contends that the circuit court² did not make specific findings on each of the factors outlined in Section 211.447.4(2) and (3), RSMo 2000, in terminating her parental rights and did not make sufficient findings regarding the best interests of the children under Section 211.447.6. She also asserts that the circuit court erred by not ascertaining whether the Indian Child Welfare Act had been complied with and in relying solely on her past behavior to justify termination of her parental rights. We reverse the circuit court's judgment and remand.

The circuit court is required to make findings of fact concerning each of the factors specified in Section 211.447.4(2) or (3) or state why a given factor is not relevant before terminating a person's parental rights under these statutes.³ In the Interest of J.M.N., 134 S.W.3d 58, 65 (Mo. App.2004); In the Interest of C.N.G, 89 S.W.3d 564, 567 (Mo.App.2002); In the Interest of Q.M.B., 85 S.W.3d 654, 658-59 (Mo.App.2002). To preserve the issue for our review, however, a party must challenge the circuit court's failure to make statutorily required findings in a motion to amend the judgment. Rule 78.07(c).

Rule 78.07(c) says, "In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review." "The failure of the court to make [statutorily required] findings is error; however, the claimed error is not preserved unless a motion to alter or amend the judgment is filed which specifically challenges the failure to make statutorily mandated findings." In the Interest of Holland, 203 S.W.3d 295, 302 (Mo.App. 2006). M.T. does not assert, and the circuit court's docket sheet does not reflect, that M.T. filed a motion to amend the judgment. M.T. "was obligated to put the [circuit] court on notice that it failed to make specific statutorily required findings. Absent such specificity, the error is not preserved for appeal." Id.

The same is true concerning M.T.'s contention that the circuit court did not make sufficient findings regarding the best interests of the children under Section 211.447.6. Rule 78.07(c) required M.T. to file a motion to amend the judgment, alleging that the circuit court's findings were insufficient to preserve this issue for our review.

M.T. also asserts that the circuit court erred by not ascertaining whether or not the proceedings complied with the Indian Child Welfare Act. In her answer to the petition to terminate her parental rights, M.T. asserted, "[I state] that some or all of the Petitioners' claims are limited or barred by the applicable provisions of the Indian Child Welfare Act. . . . [I state] that this Court lacks subject matter and/or personal jurisdiction pursuant to applicable provisions of the Indian Child Welfare Act." M.T. contends that the Indian Child Welfare Act required the circuit court to notify the children's Indian tribe by registered mail with return receipt requested of the pending process and of their right to intervene.

Indeed, 25 U.S.C.A. 1912(a) says:

In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe by registered mail with return receipt requested, of the pending proceedings and of their right to intervention.

Moreover, in an adoption proceeding, Section 453.080.1(6), RSMo Supp.2006, requires the circuit court to conduct a hearing to determine whether or not it should finalize the adoption and to ascertain whether or not the requirements of the Indian Child Welfare Act have been satisfied. In the Matter of C.G.L., 28 S.W.3d 502, 505 (Mo.App.2000).

M.T., however, did not establish that the Indian Child Welfare Act is applicable to this case. The United States Supreme Court has recognized that the act's purpose is to avoid removing Native American children "from their cultural setting," thereby threatening "a long-term tribal survival" and the social and psychological well-being of the child. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 50, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). This court concluded from Holyfield and other cases that the act "is not applicable where an Indian child is not being removed from an Indian cultural setting, where the natural parents have no substantive ties to a specific tribe, and where neither of the parents nor their families have resided or plan to reside within a tribal reservation." In the Matter of C.E.H., 837 S.W.2d 947, 952 (Mo.App. 1992) (citing In the Matter of the Adoption of Crews, 118 Wash.2d 561, 825 P.2d 305, 310 (1992)); see also In the Interest of T.C.T., 165 S.W.3d 529, 533 (Mo.App.2005), and In the Interest of D.C.C., 971 S.W.2d 843, 846 (Mo.App.1998). M.T. does not contend that this case satisfies these requisite facts. Indeed, in its judgment, the circuit court found that M.T. did not produce "documentary evidence to show that she is now or in the past was ever a registered member of an American Indian Tribe." Hence, M.T.'s contention is without merit.

M.T. also asserts that clear, cogent, and convincing evidence did not support the circuit court's determination to terminate her parental rights because the circuit court relied solely on her past behavior to justify its determination. We agree that the circuit court erred in relying solely on M.T.'s past behavior to justify the termination.

In a termination proceeding, the circuit court, before considering the child's best interest, must determine whether or not the grounds for termination are supported by clear, cogent, and convincing evidence. Evidence supporting termination is clear, cogent, and convincing if, when weighed against all of the evidence, it instantly tilts the scales in favor of termination. We review the circuit court's judgment by determining whether or not it is supported by substantial evidence, is consistent with the weight of evidence, or accurately declares and applies the law. In the Interest of D.C.S., 99 S.W.3d 534, 538 (Mo.App.2003), abrogated on other grounds by In the Interest of M.D.R., 124 S.W.3d 469 (Mo. banc 2004). We review termination of parental rights cases closely because termination of parental rights interferes with a basic liberty, freedom from governmental interference with family and child rearing. In the Interest of P.C., 62 S.W.3d 600, 603 (Mo.App.2001). "`Terminating parental rights is an exercise of an awesome power and should not be done lightly.'" Id. at 602-03 (quoting In the Interest of T.H., 980 S.W.2d 608, 613 (Mo. App.1998)).

The circuit court terminated M.T.'s parental rights pursuant to Section 211.447.4(2) and (3), RSMo 2000. In terminating M.T.'s parental rights pursuant to Section 211.447.4(2), the circuit court said, "Pursuant to Section 211.447.4(2)(b), both the natural parents have a chemical dependency which prevents them from consistently providing the necessary care, custody and control of the children[ and which] cannot be treated so as to enable the parents to consistently provide such care, custody and control." Concerning Section 211.447.4(3), the circuit court said:

[T]he children have been under the jurisdiction of the Juvenile Court for a period in excess of one year and the conditions which led to the assumption of jurisdiction still persist and there is little likelihood that these conditions will be remedied at an early date so that the children can return to the parents in the near future and the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home.

In that:

a. The parents have made little or no progress in complying with terms of social service plans provided to them to help address and rectify the conditions that originally brought the children into care.

b. The parents did not complete any substance abuse program either inpatient or outpatient;

c. The parents provided random UA's that were positive;

d. The parents were sporadic in visitation with their children;

e. The parents were discharged from individual counseling for failure to participate[.]

Pursuant to R.S.Mo 211.447.4(3)(d) the parents have a chemical dependency which prevents them from consistently providing the necessary care, custody and control over the children, which cannot be treated so as to enable the parent to consistently provide such care, custody and control.

The evidence established that, during June 2003, the circuit court assumed jurisdiction over the children because J.K., Jr., who was five years of age and who shot himself in the neck after being left unattended with access to a loaded gun. Investigating police officers found that the children were residing with their parents in a hotel room that was dirty with trash and cat feces. Authorities removed the children from their parents' custody and placed them in foster care. M.T. pleaded guilty to endangering the welfare of a child on April 15, 2004.⁴

When authorities placed the children in foster care, they identified barriers to reunifying M.T. and her children: substance abuse, lack of a stable living situation, and poor hygiene. To...