In re L.E.C.

• Citation: 182 S.W.3d 680
• Decision Date: 03 January 2006
• Docket Number: No. WD 65537.,No. WD 65536.,No. WD 65535.,WD 65535.,WD 65536.,WD 65537.
• Parties: In the Interest of L.E.C., J.I.C., and B.C., III, Plaintiffs, Missouri Children's Division and Juvenile Officer, Respondents, v. B.C. (Father), Appellant, K.J.C. (Mother), Defendant.
• Court: Missouri Court of Appeals

182 S.W.3d 680

In the Interest of L.E.C., J.I.C., and B.C., III, Plaintiffs,

Missouri Children's Division and Juvenile Officer, Respondents, v. B.C. (Father), Appellant, K.J.C. (Mother), Defendant.

No. WD 65535.

No. WD 65536.

No. WD 65537.

Missouri Court of Appeals, Western District.

January 3, 2006.

As Modified January 31, 2006.

Thomas Bolling, Marshall, MO, for appellant.

Donald A. Willoh, Jr., Jefferson City, MO, for respondent, Missouri Children's Division.

Jill Harriman, Marshall, MO, for respondent, Juvenile Officer.

George L. Stafford, Slater, MO, for defendant.

Robert L. Alexander, Marshall, MO, for plaintiffs.

Before HAROLD L. LOWENSTEIN, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.

JOSEPH M. ELLIS, Judge.

B.C. ("Father") appeals a May 10, 2005 judgment of the Juvenile Division of the Circuit Court of Saline County terminating his rights, as well of those of K.J.C. ("Mother"), to parent their three minor children, L.E.C., J.I.C., and B.C. We hold that the trial court properly found grounds for termination of Father's parental rights¹ to all three children pursuant to section 211.447.4(4)² and that termination was in the best interests of the children. Accordingly, we affirm the circuit court's judgment.

Only an abbreviated summary of the facts of this case is necessary. Father and Mother are the natural parents of three minor children: L.E.C. (a female child born on August 24, 1989); J.I.C. (a female child born on September 12, 1990), and B.C. (a male child born on June 21, 1993). On February 26, 1997, J.I.C. was scratching between her legs during her kindergarten class. The school nurse removed a pubic louse from the inside of her labia and notified the Missouri Division of Family Services ("DFS"; now the Children's Division). Social workers from DFS interviewed J.I.C. that day. She gave a graphic and detailed account of sexual abuse, implicating Father as the perpetrator. At the time, J.I.C. was six years old. Mother was also interviewed that afternoon by DFS. Mother was told not to discuss anything with J.I.C. and that the next day DFS would conduct a videotaped interview and a physical exam on J.I.C. J.I.C. was allowed to return home with Mother that evening because Father would not be home. In spite of these instructions, that evening Mother did discuss the allegations of sexual abuse with J.I.C. Mother clearly implied to J.I.C. that she did not believe her. Mother told J.I.C. that Father would go to jail if she lied and told her to tell "the truth."

The next day (February 27, 1997), the Juvenile Court of Saline County assumed jurisdiction over J.I.C., L.E.C., and B.C. and temporarily placed them in the legal custody of DFS. A SAFE exam was conducted on J.I.C., which revealed that her hymeneal opening was double the normal size for a child her age, and that her vaginal vault showed signs of chronic irritation. Father was arrested, and DFS formally sought to have J.I.C., L.E.C., and B.C. removed from the home. On March 20, 1997, while incarcerated and awaiting trial on statutory rape charges involving J.I.C., Father was personally served with a Petition and Summons concerning the removal of the children from his home. The summons served upon Father advised him of his right to appointed counsel and his obligation to notify the Juvenile Court if he wished to have counsel appointed to represent him. Father took no subsequent action and initiated no communication whatsoever with the court concerning the matter until 1999, when he filed a pro se motion with the Juvenile Court requesting that counsel be appointed, which the court granted on April 16, 1999.

On June 18, 1998, Father was found guilty by a jury of the first-degree statutory rape of his daughter J.I.C. and was sentenced, as a persistent sexual offender,³ to life imprisonment. Extensive efforts to reunite the children with Mother failed, and in November 2001, the juvenile officer for Saline County filed a motion for a permanency hearing as to all three children to determine whether they should continue in foster care or be returned to Mother. After conducting such a hearing and receiving evidence, on March 14, 2002, the court terminated Mother's visitation rights and changed the permanency plan from reunification with Mother to adoption. Mother appealed, but the judgment was affirmed. See In the Interest of L.E.C., 94 S.W.3d 420 (Mo.App. W.D.2003). On January 16, 2004, the Missouri Children's Division, through counsel, filed a petition seeking termination of the parental rights of Father and Mother as to all three children. On February 11, 2004, while incarcerated in the custody of the Missouri Department of Corrections due to his 1998 conviction for the first-degree statutory rape of J.I.C., Father was personally served with a Petition and Summons concerning the termination of his parental rights. On October 7, 2004, the Children's Division filed its second amended petition for termination of parental rights, which included, among many other things, allegations that Father had been declared to be a persistent sexual offender and that he had been convicted of forcible rape in 1990 and of statutory rape of one of his daughters in 1998. On December 14, 2004, Father filed his answer to the second amended petition, in which he admitted the 1990 and 1998 rape convictions.

Father also filed a "Motion to Dismiss, and In Alternative, Motion to Litigate Core Issue In Trial." In his answer, his supplemental response, and his motion to dismiss, Father claimed that he was prejudiced by a lack of legal representation for a period of roughly two years after being served with the original juvenile court summons. He also claimed that his criminal conviction for the statutory rape of his daughter was obtained through "false evidence" and "false testimony." The Children's Division then filed a motion in limine on January 12, 2005, arguing that Father was collaterally estopped from relitigating, in the termination of parental rights proceeding, his previous convictions based on allegedly false information, false testimony, or fraud on the court. The motion specifically requested that no evidence of "false evidence," "false testimony" or "fraud" be permitted on the issue of Father's criminal convictions.

At a motion hearing held on February 2, 2005, the trial court overruled Father's motion and granted the Children's Division's motion in limine. On March 24, 2005, the court also took up and sustained the Children's Division's "Motion to Apply Law of Case Doctrine," in which the Division asked that Mother be prevented from revisiting any of the factual findings made by the trial court after the 2001 and 2002 permanency hearings, as described by this court on appeal in In the Interest of L.E.C., 94 S.W.3d 420 (Mo.App. W.D.2003).

The termination hearing finally began on April 20, 2005. Father asked to proceed pro se and was granted leave to do so, but the trial court ordered his attorney to remain. Father once again asked the trial court to consider evidence regarding "false evidence and false testimony," but the trial court told him that the court would not "open up the — the facts of that criminal case." Father also complained that he was not represented by counsel from March 1997 to April 1999 because the notification of his right to counsel was on the back of his summons, and once again argued that he should be allowed to present "documentations and witnesses" to prove fraud and perjury in his criminal cases, but the trial court denied him any relief.

After receiving evidence from a number of witnesses, including Father and Mother and the childrens' guardian ad litem, the court took the matter under submission. On May 10, 2005, the trial court entered a detailed 39-page judgment terminating the parental rights of both Father and Mother as to all three children, concluding that the Children's Division had proven, by clear, cogent, and convincing evidence, the statutory grounds for termination under sections 211.447.4(2) (Father and Mother); 211.447.4(3) (Father and Mother); 211.447.4(4) (Father), and 211.447.4(6) (Father and Mother). After making these determinations, the trial court made the further finding, under section 211.447.5, that termination would serve the children's best interests. In doing so, the court made additional findings adverse to both Father and Mother as to each of the applicable factors set forth in section 211.447.6. Father brings this appeal.

Our Supreme Court recently summarized the required findings, standard of proof, and standard of review for judgments terminating parental rights as follows:

The standard of review for judgments terminating parental rights is based on the requirements of section 211.447.5 that 1) the trial court must find by clear, cogent, and convincing evidence that one or more grounds for termination exists under subsections 2, 3 or 4 of section 211.447 and 2) the trial court must find that termination is in the best interests of the children. Whether statutory grounds under section 211.447.2, .3 or .4 have been proven by clear, cogent and convincing evidence is reviewed under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); in other words, the trial court's judgment will be affirmed unless no substantial evidence supports it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. Proof under this standard of only one of the statutory grounds alleged is sufficient to sustain the judgment. Then after determining that one or more statutory grounds have been so proven, the court must consider the question of whether termination also is in the best interests of the child. On that question, the standard of proof at trial is a preponderance of the evidence, and the standard of review on appeal is abuse of discretion. In all of these determinations, the reviewing court is deferential to the fact-findings...