In re H.L.L.
| Decision Date | 20 December 2005 |
| Docket Number | No. SC 86788.,SC 86788. |
| Citation | 179 S.W.3d 894 |
| Parties | In the Interest of H.L.L., a child under seventeen years of age. T.L., Appellant, v. Greene County Juvenile Office, Respondent. |
| Court | Missouri Supreme Court |
John E. Kelly, Springfield, for Appellant.
James R. Royce, William C. Prince, Springfield, for Respondent.
Kayla Vaughan, Chris E. Rollins, St. Louis, for Amicus Curiae.
T.L. appeals from a judgment of the juvenile division of the Circuit Court of Greene County overruling his motion for a new trial after the court terminated his parental rights to H.L.L. Although he does not complain about service of process, he alleges that he received no notice of the termination hearing and was denied due process of law. After an opinion by the Court of Appeals, Southern District, this Court granted transfer. Mo. Const. art. V, sec. 10. The judgment is affirmed because the court did not abuse its discretion in overruling T.L.'s motion for a new trial.
The juvenile office filed a petition to terminate T.L.'s parental rights to H.L.L. Summons was issued to the sheriff of McClennon County, Texas, for personal service on T.L. at 1609 Spring Street # 93, Waco, Texas. The summons indicated that there would be a hearing on the petition on February 25, 2004. The return of service was filed showing that service was made on December 30, 2003. The return verified that a copy of the summons, petition, and a juvenile/custodian's rights form was left with a family member over the age of fifteen years at the Waco address.
The hearing referred to in the summons — a service in compliance hearing — was held on February 25, and the Court found that service had been made on all parties as required by section 211.453, RSMo 2000.1 Although T.L. was not present at the hearing, the court set a termination of parental rights hearing for March 22. The juvenile office mailed a notice of the termination hearing to T.L. at the Waco address on March 1, indicating that the hearing was set for March 22. The juvenile office also mailed a "termination summary" to T.L., at the Waco address, on March 4, which indicated that the termination hearing was set for March 22. These letters were not returned as undeliverable.
At the termination hearing on March 22, the juvenile's guardian ad litem, a deputy juvenile officer and her attorney, a representative from the Children's Division, and a court-appointed special advocate appeared. T.L. did not. Those appearing adduced evidence, and the trial judge announced that the parental rights of both parents would be terminated.
On April 14, at T.L.'s request, the trial court appointed an attorney to represent him for purposes of an appeal. Two weeks later, the trial court issued findings of fact and conclusions of law, which included findings that T.L. was properly served with the summons, as well as a copy of the petition to terminate parental rights, and a notice of the termination hearing.
T.L. filed a motion for a new trial, alleging that he had not received any notice of the termination hearing. This motion was denied without an evidentiary hearing. He filed a second motion for a new trial, which included a notarized letter stating that his address was 1609 Spring St., # 93, Waco, Texas, and attesting that he had not received notice of the termination hearing. Additionally, T.L.'s attorney filed suggestions and his own affidavit, which indicated that a letter he had mailed to T.L. at 1609 Spring St., Apt. 93, Waco, Texas, was returned marked "Addressee Unknown." The motion court held a hearing on the second motion for a new trial and overruled the motion. T.L. now challenges this ruling.
The standard of review for an order denying a motion for new trial is abuse of discretion. Bowan v. Express Med. Transporters, Inc., 135 S.W.3d 452, 456 (Mo.App.2004). A trial court abuses its discretion when a ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. McGuire v. Seltsam, 138 S.W.3d 718, 720 (Mo. banc 2004). The denial of a new trial would be an abuse of discretion if it were based on findings not substantially supported by the record. Bowan, 135 S.W.3d at 456.
T.L. claims on appeal that the trial court erred in terminating his parental rights because he did not receive notice of the termination hearing, thus denying him due process of law. He does not challenge the service of the summons.2
Although termination of parental rights involves a fundamental liberty interest, T.L. never complained about the service of the petition to terminate his parental rights at the trial court or even on appeal. To preserve a constitutional question for review in this Court, it must be raised at the earliest possible opportunity; the relevant sections of the Constitution must be specified; the point must be preserved in the motion for new trial, if any; and, it must be adequately covered in the briefs. State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975). The sufficiency of the service of the summons has not been properly preserved for appellate review. As such, this Court need only consider whether the motion court denied T.L. his due process rights in overruling his motion for a new trial.
In termination of parental rights cases, due process requires that a parent be given "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." In the Interest of Loveheart, 762 S.W.2d 32, 34 (Mo. banc 1988).
The motion court was presented with competent evidence, in the form of an affidavit of a juvenile officer in response to T.L.'s motion for a new trial, that two notices of the termination hearing were sent to T.L. at 1609 Spring St., # 93, Waco, Texas. These notices were not returned as undeliverable. Further, the motion court considered the notarized letter from T.L. attached to his second motion for a new trial, which indicated that he had been living at the above address.
The motion court's findings were based on substantial evidence that T.L. received notice reasonably calculated to apprise him of the pending termination hearing and to give him the opportunity to present his objections. Its decision was not against the logic of the circumstances, nor was it so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. As such, the motion court did not abuse its discretion in overruling T.L.'s motion for a new trial. Its judgment is affirmed.
This case is not a contract dispute. It is not a suit for damages. The interest involved is not simply financial or reputational. Rather, the interest being adjudicated in this case is one of the oldest fundamental liberty interests recognized in our law; the right to be a parent to one's child. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Given the fundamental interest at...
To continue reading
Request your trial
- V.B. v. A.S.A. (In re K.T.B.)
- St. Louis Cnty. v. River Bend Estates Homeowners' Ass'n
- R.W. v. H.P.A. (In re E.R.V.A.)
- Gash v. Lafayette County, No. WD 65589 (Mo. App. 2/6/2007), WD 65589