In re E.F.B.D.

• Court: Missouri Court of Appeals
• Writing for the Court: Jeffrey W. Bates
• Citation: In re E.F.B.D., 245 S.W.3d 316 (Mo. App. 2008)
• Decision Date: 25 February 2008
• Docket Number: No. 28324.,28324.
• Parties: In the Matter of E.F.B.D. W.H. and K.H., Petitioners-Respondents, v. S.B., Respondent-Appellant.

245 S.W.3d 316

In the Matter of E.F.B.D W.H. and K.H., Petitioners-Respondents, v. S.B., Respondent-Appellant.

No. 28324.

Missouri Court of Appeals, Southern District, Division One.

February 25, 2008.

Douglas Andrew Hosmer, Springfield, MO, for Appellant.

Keith Parris, Monett, MO, for Respondent Lawrence County Juvenile Office.

Amy Lynn Boxx, Monett, MO, for Respondents Holland.

Scott Roberts Pettit, Aurora, MO, for Juvenile/Minor.

Roger Walker Owensby, Springfield, MO, for Respondent Division of Family Services.

JEFFREY W. BATES, Judge.

S.B. (Father) appeals from a judgment terminating his parental rights to E.F.B.D.¹ Father's parental rights were terminated on the ground of abandonment pursuant to § 211.447.4(1)(b).² On appeal, Father contends there was insufficient evidence to prove this statutory ground for termination. Alternatively, he contends there was sufficient evidence to show that he repented of his abandonment of E.F.B.D. This Court affirms.

To terminate parental rights, a trial court must use a two-step analysis. In re S.J.H., 124 S.W.3d 63, 66 (Mo.App. 2004). In the first step, the court must find by clear, cogent and convincing evidence that one or more statutory grounds for termination exist. § 211.447.5; In re P.L.O., 131 S.W.3d 782, 788 (Mo. banc 2004). "Clear, cogent, and convincing evidence is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true." In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005). This standard of proof may be satisfied even though the court has contrary evidence before it or the evidence might support a different conclusion. In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984); In re A.K.F., 164 S.W.3d 149, 151 (Mo.App.2005). After finding one or more statutory grounds for termination have been proven, the trial court then moves to the second step and must determine, by a preponderance of the evidence, whether the termination of parental rights is in the child's best interest. § 211.447.5; P.L.O., 131 S.W.3d at 789; S.J.H., 124 S.W.3d at 66.

On appeal, we review a trial court's decision that one or more statutory grounds for termination exist to determine whether the ruling is supported by substantial evidence, is against the weight of the evidence, or involves an erroneous application or declaration of the law. S.M.H., 160 S.W.3d at 362. We will not reverse the trial court's decision unless we are left with the firm belief that the decision was wrong. Id. We defer to the trial court's assessment of witness credibility. In re C.F.C., 156 S.W.3d 422, 426 (Mo.App. 2005). "[T]he appellate court defers to the trial court on factual issues because it is in a better position not only to judge the credibility of witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record." W.B.L., 681 S.W.2d at 455. We also bear in mind that the trial court was free to believe all, part or none of a particular witness' testimony. In re L.R.S., 213 S.W.3d 161, 164 (Mo.App.2007). The facts and the reasonable inferences derived therefrom are considered in the light most favorable to the judgment. In re L.N.D., 219 S.W.3d 820, 822 (Mo.App.2007); In re L.M., 212 S.W.3d 177, 180 (Mo.App.2007). Thus, conflicting evidence will be reviewed in the light most favorable to the trial court's decision. In re A.S.W., 137 S.W.3d 448, 452-53 (Mo. banc 2004). Viewed in that fashion, the following evidence was adduced at trial.

E.F.B.D. was born on June 18, 1993. Her biological parents are P.C. (Mother) and Father. The couple was not married and lived apart. E.F.B.D. resided with Mother and spent every other weekend with Father until August 1994, when she was 14 months old. At that point, Father failed to return E.F.B.D. after a routine visit. A deputy sheriff and a DFS caseworker came to Father's house and ordered him to turn E.F.B.D. over to Mother. After this incident, Mother left the area with E.F.B.D. Mother kept in touch with Father's half-brother, who kept Father informed of where Mother and E.F.B.D. were living.

In 1996, Mother and the Division of Child Support Enforcement (DCSE) filed a petition in the Circuit Court of Greene County, Missouri. The petition sought to change E.F.B.D.'s last name to that of Mother's late husband, establish Father's paternity and establish a child support order. Father was served with the petition, but he did not appear at the hearing. Between May and October 1997, Mother received child support payments of approximately $117 per month from Father. DCSE knew Mother's address and was sending Father's support payments to her. Between October 1997 and March 2001, Father provided no monetary support for E.F.B.D.

In March 2001, the Lawrence County juvenile officer filed a petition requesting that E.F.B.D., then nearly 8 years old, be placed in protective custody and that temporary legal and physical custody of her be placed with DFS due to a history of child abuse and neglect reports involving the child and her siblings.³ The court entered an order granting the relief requested in the petition and appointed a Guardian Ad Litem (GAL) for E.F.B.D. Father's name and address for notice purposes appeared on the petition and investigation report. When the court held a hearing a week later to determine temporary custody, a docket entry noted that "[Father of E.F.B.D.] fails to appear."

In April 2001, DFS placed temporary physical custody of E.F.B.D. and her younger half-sister, L.D., with foster parents W.H. and K.H.⁴ That same month, Father contacted E.F.B.D.'s caseworker, Brandi Parris (Parris). On April 30, 2001, Parris met with Father and his mother (Grandmother), who both requested that custody of E.F.B.D. be placed with either of them. Parris specifically informed Father that to obtain custody, he would have to complete a Written Service Agreement (WSA) and provide child support to E.F.B.D. Father said that he would do so.

After the meeting, Parris ran a "Child/Abuse and Neglect screening" to determine if either party had any involvement with DFS. She found that Cass County then had an open investigation regarding Father, his fiancée, and her daughter. The daughter had alleged that Father sexually fondled her. A no-contact order had been issued, so Father was living with Grandmother at the time. Because the investigation was pending, Father was not considered as an immediate placement for E.F.B.D. A favorable outcome to the investigation, however, would permit Father to be considered a possible long-term placement for E.F.B.D. The next day, Parris submitted home study requests for both Father's home and Grandmother's home in Jackson County, where they resided.

On May 31, 2001, Father attended the next scheduled family support meeting. Thereafter, Father did not call to check on E.F.B.D.'s welfare or send anything for her support.

In June 2001, Parris received two letters from a Jackson County caseworker who was responsible for conducting the home studies of Father and Grandmother. The first letter stated that Father's home study case had been closed because the caseworker made two attempts to contact Father, and he failed to respond. The second letter stated that Grandmother's home study had been closed at her request because she was not sure whether E.F.B.D. was really her granddaughter.

In September 2001, Parris sent Father a proposed WSA. He was asked to review, sign and return the document to Parris. Father had to return the document in order for it to be submitted to the court for approval. The WSA included counseling services so Father could meet E.F.B.D. at a session and permit a counselor to determine whether visitation was appropriate. The proposed WSA was not returned to Parris before she left her caseworker position at the end of October 2001.

In November 2001, a second DFS employee took over E.F.B.D.'s case. In a mid-month report, the caseworker noted that Father had made no effort to contact DFS to check on E.F.B.D.

On December 19, 2001, Father returned the signed WSA to DFS. The agreement required Father to: (1) participate in a substance abuse evaluation; (2) support E.F.B.D. on a regular basis by cooperating with child support enforcement; (3) visit E.F.B.D. once the judge had ruled that it was in her best interest after the counselor's recommendation; (4) notify DFS of any moves and be available for a worker to make home visits; (5) maintain contact with DFS at least two times a month, notify DFS of any changes in residences or life circumstances and obtain information as to how E.F.B.D. was doing; (6) attend parenting classes; (7) participate in family counseling with E.F.B.D. and follow all recommendations made by that counselor; (8) abstain from alcohol and drugs and those associating with the same; (9) work with Cass County DFS regarding the open case involving sexual abuse; and (10) participate in a psychological evaluation with a licensed psychologist.

Thereafter, Father underwent a psychological evaluation by Dr. Gregory Sisk (Sisk) in February 2002. In Dr. Sisk's report, he did not recommend that E.F.B.D. be placed with Father at that time because his family "needed a lot of healing" in dealing with the sexual allegations against him. Sisk indicated that it might take considerable time to incorporate E.F.B.D. into Father's home.

On February 28, 2002, Father met individually with E.F.B.D.'s counselor, Dr. Amy Meriweather (Meriweather) to prepare him to meet E.F.B.D. Meriweather explained to Father not to touch or hug E.F.B.D., who was exposed at a young age to inappropriate sexual behavior by her stepfather. On March 18, 2002, Father and E.F.B.D., then almost 9 years old, met for the first time since her infancy. Meriweather described their first meeting as "neutral" for E.F.B.D. After...