In re
| Decision Date | 19 March 2013 |
| Docket Number | No. ED 98307.,ED 98307. |
| Parties | In the Interest of: D.L.W. and A.M.J.W., Minors. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
John R. Bird, St. Louis, MO, for Appellant.
Allie Wolff, Clayton, MI, for Respondent.
Division Three: ROBERT G. DOWD, JR., ANGELA T. QUIGLESS, J., concur.
Appellant, R.L.W., (“Father”) appeals from the trial court's judgment terminating his parental rights with his children A.M.J.W. and D.L.W. (collectively, “Children”). Father alleges that the trial judge erred in failing to grant his motion for continuance and, further, that the trial judge erred in admitting evidence of his unsuccessful completion of sex-offender counseling. We affirm the trial court's denial of Father's motion for continuance and affirm the court's judgment terminating Father's parental rights.
On February 15, 2008, the trial court found that Father had abused or neglected his daughter, A.M.J.W., finding that he had sexually abused her through inappropriate digital contact to her vaginal area.1 Thereafter, the trial court assumed jurisdiction over A.M. J.W. and son, D.L.W. Both children were removed from the home and placed in foster care. Next, the trial court entered a dispositional order and approved a written service plan, both of which directed Father and the Missouri Department of Social Services, Children's Division (“Children's Division”), to undertake and complete certain tasks in an attempt reunify the family.
The components of the court-ordered service plan mandated Father engage in sexual-offender counseling and denied visitation rights with Children until Children's therapists' approved. For the next three years, Father was never granted visitation rights, however, he considerably complied with the service plan, including attending all court hearings, paying monthly child support, and attending the sexual-offender counseling. Nonetheless, Father was unsuccessful at completing the sexual-offender counseling because he was unwilling to admit he sexually abused his daughter, this being viewed as a necessary component of successful treatment. Thus, on March 10, 2011, the Children's Division filed petitions seeking the termination of Father's parental rights based upon abuse and neglect, abandonment, and parental unfitness.
Termination of parental rights petitions were scheduled for trial on January 13, 2012. On January 6, 2012, Father filed a motion to continue the trial to January 19, 2012. The Children's Division consented to the motion and the trial court granted the continuance. On January 19, 2012, the date requested by Father, the trial court called the petitions for termination of parental rights, but Father was not present. Father's counsel made an oral motion for continuance, which was denied by the trial court. The termination trial proceeded. At that termination trial, Father's counsel did not make an offer of proof establishing how Father could have contributed to assisting his counsel, nor did Father's counsel call any witnesses on behalf of Father.
Thereafter, on January 26, 2012, at the request of Father, the trial court heard Father's arguments and evidence regarding Father's non-appearance at the January 13 and 19 trial dates and reconsidered Father's motion for continuance. During this hearing, Father invoked his Fifth Amendment rights multiple times and provided little evidence as to his inability to be present at the January 13 and 19 trial dates. Again, the trial court denied Father's motion for continuance because the trial court did not find Father's explanation credible.
On February 21, 2012, the trial court entered its judgment terminating Father's parental rights. This appeal follows.
Father raises two points on appeal. In his first point, Father alleges that the trial court erred in denying his motion for continuance in violation of his due process rights. Second, Father contends that the trial court erred in admitting evidence of his unsuccessful completion of sex-offender counseling in violation of his Fifth Amendment right against self-incrimination. For ease of analysis, we will address Father's second point before his first.
The standard of review of judgments terminating parental rights is based on the requirements of Section 211.447.5 2: (1) the trial court must find “clear, cogent, and convincing evidence” that one or more grounds for termination exists under subsections 2, 3, or 4 of Section 211.447.5; and (2) termination must be in the best interest of the child. In re S.R.J., Jr., 250 S.W.3d 402, 406 (Mo.App. E.D.2008). Accordingly, under the first prong, “appellate courts defer to the trial court's ability to judge the credibility of witnesses and will affirm the judgment unless there is no substantial evidence to support it, it is contrary to the evidence, or it erroneously declares or applies the law.” In re A.S.W., 137 S.W.3d 448, 452 (Mo. banc 2004); see also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Further, clear, cogent and convincing evidence is defined as evidence which “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 A.S.W., 137 S.W.3d at 453.
After a determination that one or more statutory grounds have been proven, the court must then consider if termination is in the best interest of the child. In re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004). With regard to this second prong, at trial the standard of proof is preponderance of the evidence and on appeal the standard of review is abuse of discretion. Id. Thus, the appellate court defers to the trial court and views the evidence in the light most favorable to the trial court's judgment. Id.
Father's second point claims that the trial court erred in admitting evidence of his failure to successfully complete sex-offender specific counseling in violation of his Fifth Amendment rights. Thus, Father contends that if such evidence would have been ruled inadmissible, the trial court would have been unable to terminate his parental rights as the record would be void of any clear, cogent and convincing evidence regarding grounds for termination under Section 211.447.5. We disagree.
A trial court has broad discretion to admit or exclude evidence at trial, and the trial court's decision will not be disturbed absent abuse of discretion. Mitchell v. Kardesch, 313 S.W.3d 667, 674–75 (Mo. banc 2010). In other words, this discretion is abused, and error is found, only when a ruling is “clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.” State v. Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005). “When reviewing for an ‘abuse of discretion’ we presume the trial court's finding is correct[.]” Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 872 (Mo.App. E.D.2009). However, even if this Court were to find the trial court abused its discretion, an appellate court will reverse “only if the prejudice resulting from the improper admission of evidence is outcome-determinative.” Id.
Father's failure to complete the sex-offender counseling was based on his unwillingness to admit he sexually abused his daughter, this being viewed as a necessary component of successful treatment.3 Thus, Father argues that the admission of evidence regarding his unsuccessful completion of sex-offender specific counseling—as required by the trial court's dispositional order and service plan—was in violation of his Fifth Amendment right against compulsory self-incrimination.
The Fifth Amendment, in part, provides that no person “shall be compelled in any criminal case to be a witness against himself.” SeeU.S. Const. amend. V. This privilege applies equally to allow a person “not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973)) (internal quotations omitted). Accordingly, the Fifth Amendment shields an individual from “being compelled to provide testimonial evidence against himself which may then be used to prosecute him.” State v. Sanders, 842 S.W.2d 170, 173 (Mo.App. E.D.1992).
Missouri courts have yet to determine whether forcing a parent to confess to child or sexual abuse in court-ordered therapy as a condition of family reunification violates the parent's privilege against self-incrimination. 4 An examination of case law from other jurisdictions provides several options, but no clear solution.
A few jurisdictions hold an admission of wrongdoing as a condition to successful completion of court-ordered counseling is offensive to a parent's Fifth Amendment right against self-incrimination. In a case decided by the Ohio Court of Appeals, the daughter, Amanda, alleged that her father had sexually abused her. In re Amanda W., 705 N.E.2d 724, 725–26 (1997). Amanda's parents admitted that someone had abused Amanda, but denied that the abuserwas Amanda's father. Id. at 726. Amanda's parents substantially complied with their case plan in almost all respects, however, the Father refused to admit he abused Amanda, a prerequisite to receiving sexual-offender counseling. Id. That court held that a case plan that requires a parent to admit to a criminal act, without an offer of immunity for such an admission, violated that parent's Fifth Amendment rights to refrain from incriminating themselves. Id. at 727. Thus, the court,...
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