In re R.D.M.

• Decision Date: 04 June 2019
• Docket Number: No. ED 107179,ED 107179
• Parties: In the INTEREST OF: R.D.M.
• Court: Missouri Court of Appeals

576 S.W.3d 318

In the INTEREST OF: R.D.M.

No. ED 107179

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

FILED: June 4, 2019

Lena A. Conley, 3920 Lindell Blvd., Suite 209, St. Louis, MO 63108, for appellant.

Kelly M. Winkler, 920 N. Vandeventer Ave., St. Louis, MO 63108, Joel E. Anderson, 111 N. Seventh St., Suite 329, St. Louis, MO 63101, for respondents.

KURT S. ODENWALD, Presiding Judge

Introduction

Ronald Mottley ("Father") appeals from the trial court’s judgment terminating his parental rights over R.D.M. ("Child"). In his sole point on appeal, Father argues that the trial court erred in terminating his parental rights because Father did not voluntarily or intentionally relinquish custody of or contact with Child. Because we find Father abandoned Child under Section 211.447.5,¹ the trial court did not err in terminating Father’s parental rights over Child. Accordingly, we affirm the judgment of the trial court.

Factual and Procedural History

In 2016, the United States charged Father, a repeat offender, with the crime of felon in possession of a firearm. Father pleaded guilty and was sentenced to thirty-eight months in prison followed by two years of supervised release. Father anticipated release from prison on August 16, 2018. At that time, Father intended to live in a halfway house in St. Louis and then to reside with his sister. Father is Child’s acknowledged and biological parent.

On August 2, 2016, the Children’s Division of the Missouri Department of Social Services (the "Children’s Division") took legal custody of Child—two years old at the time—after Child’s mother left Child and Child’s sibling alone for eight days without adult supervision. Between 2016 and 2018, Child and Child’s sibling relocated multiple times within the foster-care system. Child indicated to the Children’s Division worker that she had no emotional connection with Father.

The Children’s Division sent Father three written letters explaining his rights as a parent, and detailing how to contact Child and the Children’s Division during his incarceration. With each letter, the Children’s Division included at least one self-addressed envelope for Father’s return response.² Although Child was in foster care over two years, Father only wrote her one letter. In the attached letter to the Children’s Division, Father expressed his desire to keep Child and suggested splitting Child from her sibling. Father also provided the Children’s Division with his mother’s and sister’s contact information for possible foster placement for Child. While in prison, Father completed a parenting class and a release-preparation program.

Through no fault of Father, the paternity testing of Child took almost one year to complete. During that time Father expressed a desire for a personal visit with Child. The Children’s Division did not facilitate visitation due to the incomplete paternity testing. Father did not formally request a visit with Child; he merely stated in the letter he wrote to the Children’s Division that he would love to talk to Child or see her.

The State petitioned the trial court to terminate both Father’s and Child’s mother’s parental rights on November 17, 2017.³ On April 26, 2018, the trial court held a hearing for termination of Father’s parental rights. At the termination hearing, Father testified that he spoke with Child through family members and told the Children’s Division of these conversations. Father stated that he earned approximately forty dollars per month in prison through various employment opportunities. During this time, Father admittedly did not provide Child with monetary support, clothing, food, or gifts. Father maintained that he stopped receiving the Children’s Division’s letters containing self-addressed envelopes after he was transferred to federal prison and thus experienced trouble in contacting Child.

The trial court terminated Father’s parental rights, finding that Father had abandoned Child. See Sections 211.444 RSMo (2016), 211.447.5(1). Specifically, the trial court found that Father had only sent one letter to Child and failed to provide Child with any gifts, clothing, food, financial support, or other supplies to provide for Child even though Father reported some income. Further, the trial court determined that Father’s testimony was not believable regarding his alleged phone communication with Child. The trial court noted Father’s desire to be Child’s parent but found this desire did not overcome the abandonment finding. Further, the trial court remarked that Father failed to demonstrate that he has a relationship with Child or the ability, within the near future, to perform the duties of Child’s parent. Father now appeals.

Point on Appeal

In his sole point on appeal, Father argues that the trial court erred in terminating his parental rights because the record does not support that Father’s contact with Child ended voluntarily; thus, Father claims he did not abandon Child.

Standard of Review

The trial court must follow a two-step analysis in deciding whether to terminate parental rights. In re S.Y.B.G., 443 S.W.3d 56, 59 (Mo. App. E.D. 2014). "First, the trial court must find by clear, cogent, and convincing evidence that one or more grounds for termination of parental rights exists." Id. (internal quotations omitted). Evidence is "[c]lear, cogent, and convincing" if it "instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the trier of fact is left with an abiding conviction that the evidence is true." Id. (internal quotations omitted).

We review the first step of the trial court’s termination of parental rights under the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) :

[T]he trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.

S.S.S. v. C.V.S., 529 S.W.3d 811, 815 (Mo. banc 2017) (quoting Murphy, 536 S.W.2d at 32 ). "In reviewing questions of fact, the reviewing court is to recognize that the [trial] court is free to disbelieve any, all, or none of the evidence, and it is not the reviewing appellate court’s role to re-evaluate the evidence through its own perspective." In the Interest of J.P.B., 509 S.W.3d 84, 90 (Mo. banc 2017) (internal quotations omitted). We may affirm the trial court’s decision "even when evidence contrary to the trial court’s finding is presented or the evidence might support a different conclusion." In re S.Y.B.G., 443 S.W.3d at 59 (internal citation omitted). We will reverse the trial court’s decision "only if we are left with a firm belief that the judgment is wrong." Id.

Second, if the trial court finds clear, cogent, and convincing evidence to terminate parental rights, then the trial court must evaluate whether the termination is in the child’s best interest based on the totality of the circumstances. Id. On appeal, we review the trial court’s best-interest determination for an abuse of discretion. In re Adoption of C.M., 414 S.W.3d 622, 658 (Mo. App. S.D. 2013) (internal citation omitted); see also Section 211.447.7 (setting forth seven factors to evaluate whether termination of the parent-child relationship is in a child’s best interest). "An abuse of discretion occurs only when the trial court’s ruling is clearly against the logic of the circumstances and so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." In re S.Y.B.G., 443 S.W.3d at 59 (internal citation omitted).

Discussion

The trial court terminated Father’s parental rights under an abandonment finding pursuant to Section 211.447. A child is considered "abandoned" if "for a period of six months or longer ... [t]he parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so[.]" Section 211.447.5. "Abandonment means a voluntary and intentional relinquishment of the custody of the child to another with the intent to never again claim the rights of parent or perform the duties of a parent." S.S.S., 529 S.W.3d at 816 (internal quotations omitted). "Abandonment is largely a matter of intent." Id.

Abandonment encompasses two findings—failing to make provisions for parental support and failing to maintain communications. Incarcerated parents retain their obligation to provide support for their children and communicate with them. See In re B.H., III, 527 S.W.3d 167, 175 (Mo. App. W.D. 2017). The law recognizes the financial reality of parents in prison, yet requires at least a minimal continuum of support:

[T]he substantially reduced wages received by incarcerated parents do not excuse their obligations under [ Section] 211.447 to make monetary contributions towards support of their children. Granted, such a contribution from an incarcerated parent will not significantly assist in providing the parent’s child with essentials, but even a minimal contribution evinces the parent’s intent to continue the parent-child relationship.

Id. (quoting In re M.L.K., 804 S.W.2d 398, 402 (Mo. App. W.D. 1991) ). Evidence of the parent’s intent to continue the parent-child relationship "is lacking when the parent fails to make any contribution, no matter how small the amount ." In re Adoption of C.M., 414 S.W.3d at 657 (emphasis added). Further, "[p]arents are not allowed to maintain only a superficial or tenuous relationship with their children in order to avoid a determination of abandonment." S.S.S., 529 S.W.3d at 816. Rather, the trial court may regard infrequent...