In re P.L.O.

• Decision Date: 30 March 2004
• Docket Number: No. SC 85120.,SC 85120.
• Citation: 131 S.W.3d 782
• Parties: In the Interest of P.L.O. and S.K.O., minor children.
• Court: Missouri Supreme Court

131 S.W.3d 782

In the Interest of P.L.O. and S.K.O., minor children.

No. SC 85120.

Supreme Court of Missouri, En Banc.

March 30, 2004.

As Modified on Denial of Rehearing April 27, 2004.

Sherrie L. Hansen, Anderson, Justin A. Harris, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. General, Gary L. Gardner, Assistant Attorney General, Jefferson City, Belinda K. Elliston, Webb City, R. Scott Watson, Newton County Prosecutor, Neosho, for respondent.

Terry Neff, Neosho, Jerry Holcomb, Joplin (Guardian ad Litem), amicus curiae.

STEPHEN N. LIMBAUGH, JR., Judge.

In November 2002, the juvenile division of the circuit court, pursuant to section 211.447, RSMo,¹ terminated the parental rights of the father and mother of two minor daughters, P.L.O. and S.K.O. Only the mother, Gloria, appeals, invoking this Court's original jurisdiction under art. V, sec. 3, of the Missouri Constitution. The judgment is affirmed.

I.

P.L.O. was born in May 1990 and S.K.O. in November 1992. Gloria and her husband, Ray, also have seven other children together. The Division of Family Services (DFS) has been involved intermittently with the family since September 1986 in an effort to supplement minimal parenting skills and address other issues resulting, in large part, from poverty. In April 1997, the oldest daughter, G.O., then 14, alleged that Ray had sexually abused her for more than two years. DFS concluded there was probable cause that the allegations were true, and Gloria, at DFS' urging, asked Ray to leave the family home, which he did. DFS opened a "protective services case," but left the children in the home at this time because of Ray's supposed absence.

Gloria, unemployed since 1973, resided in a 3-bedroom trailer with her five youngest children, then ages 6-17, and the family subsisted on welfare funds of less than $1,000.00 per month. Because Ray kept "coming around," Gloria, with her DFS caseworker's assistance, obtained an ex parte order against him to prevent him from contacting the children. Nevertheless, after expiration of the ex parte order, and with Gloria's knowledge, Ray continued to visit.

The children suffered from chronic head lice and a filthy environment. DFS arranged for Gloria to undergo an intensive home services program to address these and other substandard care issues. Gloria received counseling for six months and participated in a "Futures Program" to help her with job-training, obtaining employment, and becoming independent because her eligibility for welfare payments was ending. DFS also repeatedly provided Gloria with products and services to care for the head lice infestation, but to no avail. In addition, DFS helped Gloria obtain a new trailer, but Gloria soon allowed it to become filthy as well.

Gloria claimed to be home schooling P.L.O. and S.K.O. even though she had been advised that P.L.O. needed special education services. The other school-age children missed school continually due to lice infestation. Unfortunately, the home environment continued to deteriorate, Gloria offered a variety of excuses for her refusal to obtain and maintain employment, and Ray continued to visit the children.

In view of this situation, on September 2, 1999, the juvenile officer removed the five children from the home and placed them in DFS custody. The next day, September 3, the juvenile officer filed a petition under section 211.031.1(1), alleging that Gloria neglected to provide the care and support necessary for the children's well-being. In particular, the petition alleged that the children suffered from chronic head lice resulting in numerous missed school days; that their home was below minimum standards of cleanliness with soiled clothes strewn on the floors, stacks of dirty dishes, food on the carpet, and general filth throughout the home; and that the mother did not follow through with necessary medical treatment for the children. The juvenile court then entered an "Order of Protective Custody" over the four youngest children, but terminated jurisdiction over the oldest daughter, G.O., who was then 17. On September 10, 1999, Gloria voluntarily signed a "Temporary Transfer of Custody" in lieu of an adjudication of abuse or neglect. In that document, she waived service of summons, entered her appearance, and stated, "I ... do hereby give my consent for my children to be placed in the temporary care and custody of the Court and the Division of Family Services."

Upon entering DFS custody and foster family placement, both P.L.O. and S.K.O. were well behind their peers educationally, intellectually, and socially. P.L.O., 9, tested at the cognitive level of a 4-year old, unable to recite the alphabet or recognize basic colors. S.K.O. was placed in a grade level below her chronological age. While living with their mother, neither girl received childhood immunizations on schedule. In addition, P.L.O. has no vision in one eye due to an untreated eye injury, which occurred when Ray threw a "car part" at her and a metal shard entered her eye. Both girls later alleged that their father had sexually abused them, too.

A year later, in September of 2000, Gloria and DFS entered into a written "service agreement" outlining requirements for the return of her children. Among other things, that agreement provided for a continuation of the supervised visitation with the girls that had been implemented since their removal. Although DFS worked with Gloria in an attempt to reunite the family, she did not regularly meet with her caseworker, nor did she maintain employment, and, on the whole, she made very little progress to improve her situation. At one point, Gloria initiated a dissolution from Ray, but chose not to finalize it for religious reasons.

The girls became physically ill and distraught on days they were to have their supervised visits with Gloria. Because of the girls' distress, their treating psychologist began to supervise Gloria's visitation. Gloria did not attend the visits regularly, and when she did, she was usually late. There also is evidence that on occasion, she attempted to see the girls unsupervised at inappropriate times and places, such as at their school and church. In the meantime, the DFS caseworker tried to meet monthly with Gloria to review a reunification plan, but Gloria did not comply. The psychologist saw no improvement in Gloria's dependent behaviors, nor in her efforts to obtain steady employment or to find reliable transportation, and ultimately determined that visitation was not productive for the girls. Through all of this, Gloria consistently placed the blame for her situation on DFS.

Gloria last visited with the girls in February 2001, and the girls entered a new foster/pre-adoptive home soon thereafter. In March 2001, after several attempts to contact Gloria, Gloria finally met with a new caseworker and entered into the first of four new service agreements, still with the goal of family reunification. However, Gloria again failed to comply with the agreements. In June 2001, DFS ended funding of Gloria's counseling due to the length of time and lack of progress, and though DFS arranged for free individual counseling to continue with another program, Gloria attended only once.

On January 31, 2002, DFS filed a petition for termination of parental rights to the two youngest children, P.L.O. and S.K.O., the older siblings having attained majority. In May 2002, pending trial, DFS learned that the electricity in Gloria's trailer had been shut off. Though the caseworker attempted to contact Gloria by letter to help restore the electric service, Gloria never responded. She later admitted to the court that her trailer still had no heat or electricity. After numerous delays, a trial was held in September and October 2002. In addition to the facts already recounted, it was shown that Gloria contributed only once to the girls' care and maintenance despite a court order entered in 2001 requiring monthly child support payments from her, and this contribution was made only after DFS filed the petition for termination.

In a judgment entered October 31, 2002, the court found "by clear, cogent and convincing evidence" the existence of the several alleged grounds for termination of parental rights. The court also entered specific fact-findings including, inter alia, that Gloria allowed the father to visit the children despite allegations of sexual abuse; that Gloria failed to obtain medical care for P.L.O. and S.K.O. when required; that the girls were "horrifically deprived educationally;" and that the two "[girls] have been caused to suffer greatly due to the actions and inactions of their parents." Additionally, the court found that neither parent showed commitment to nor interest in the children. The court then concluded that termination of parental rights was in the best interest of the minor children. Judgment terminating parental rights was entered accordingly.

II.

Gloria first argues that using section 211.447.2(1) as a ground for termination is unconstitutional because it arbitrarily and capriciously "[deprives her] of her liberty interest in the care, custody and management of her children without due process of law." That section states in pertinent part:

[A] petition to terminate the parental rights of the child's parent or parents shall be filed by the juvenile officer or the division, ... when:

(1) Information available to the juvenile officer or the division establishes that the child has been in foster care for at least fifteen of the most recent twenty-two months....

As this Court recently held in In the Interest of M.D.R., 124 S.W.3d 469, 476 (Mo. banc 2004), no constitutional issue exists because this section is not a ground, but merely a trigger for the filing of the termination petition.

III.

Gloria's next point consists of a long list of alleged violations of the mandatory procedures and timelines set out in chapters 210 and 211 for the removal of...