In re the Adoption of C.M.B.R., SC 91141.

• Citation: 332 S.W.3d 793
• Decision Date: 25 January 2011
• Docket Number: No. SC 91141.,SC 91141.
• Parties: In re the ADOPTION OF C.M.B.R., a minor.S.M. and M.M., Respondents,v.E.M.B.R., Appellant.
• Court: United States State Supreme Court of Missouri

332 S.W.3d 793

In re the ADOPTION OF C.M.B.R., a minor.S.M. and M.M., Respondents,

v.E.M.B.R., Appellant.

No. SC 91141.

Supreme Court of Missouri, En Banc.

Jan. 25, 2011.

Christopher M. Huck of Peterson Young Putra PS, R. Omar Riojas of DLA Piper LLP in Seattle, WA, William J. Fleischaker of Fleischaker & Williams LC, Joplin, for the mother.Richard L. Schnake of Neale & Newman LLP, Springfield, Joseph L. Hensley of Hensley & Nicholas LLC, Joplin, for adoptive parents.Jamey Garrity, guardian ad litem, Joplin, for the child.Brenda Elliston of the Elliston Law Offices, Webb City, for Jasper County juvenile officer.John de Leon, Chaves & de Leon PA, South Miami, FL and Gaylin Carver, Carver & Michael LLC, Jefferson City, for The consulate general of Guatemala.Anthony E. Rothert of ACLU of Eastern Missouri, Annette R. Appell of Washington University Law School, St. Louis, Stephen Douglas Bonney of ACLU of Kansas & Western Missouri, Kansas City, for The ACLU of Eastern Missouri, the ACLU of Kansas & Western Missouri and Washington University Law School Civil Justice Clinic.Maria Woltjen and Jennifer Nagda of project in Chicago and Anthony E. Rothert of ACLU of Eastern Missouri, St. Louis, for The Immigrant Child Advocacy Project at the University of Chicago.Angela J. Ferguson, Austin & Ferguson LLC, Kansas City, Shari Lahlou, Patricia Connally and Christine Sommer, Crowell & Moring LLP, Washington, D.C., for Legal Momentum.Fernando Bermudez, Green Jacobson PC, Clayton, Cynthia V. Dixon and Alejandro Aixala of the legal defense fund in Chicago, for The Mexican American Legal Defense Fund.John C. Holstein and James E. Meadows, Polsinelli Shughart PC, Springfield, Christopher W. Dysard, Linda Imes and Max C. Nicholas, Spears & Imes LLP, New York, NY, for The Women's Refugee Commission.PATRICIA BRECKENRIDGE, Judge.

E.M.B.R. (Mother) appeals a judgment terminating her parental rights to her son, C.M.B.R. (Child), and granting M.M. and S.M.'s petition to adopt Child because the trial court found she willfully abandoned him. The failure to investigate and file reports prior to the trial on the petition as mandated by sections 211.455, 453.070.1 and 453.077.1 is plain error and requires reversal of the judgment of termination of Mother's parental rights and the grant of adoption.¹ The cause is remanded and, on remand, the court shall order compliance with the reporting requirements of those statutes before retrial on the claims in the petition as they pertain to Mother's parental rights under section 211.447.2(2)(b), whether her consent was required under section 453.040(7), and the adoption of Child by S.M. and M.M. ²

I. Factual and Procedural Background

This Court views the evidence and permissible inferences drawn from the evidence in the light most favorable to the judgment. Suffian v. Usher, 19 S.W.3d 130, 136 (Mo. banc 2000); Rule 73.01(c). Viewing the evidence in the light most favorable to the judgment, the evidence adduced at the trial was that Mother is a citizen of Guatemala. Mother entered the United States in 2006, when she was pregnant with Child. The father was not involved with Mother at the time of Child's birth. Mother never has revealed the name of Child's biological father.

During her pregnancy, she did not receive prenatal care. She did receive educational services from Laura Davenport, a parent educator for Parents As Teachers in Carthage.³ Child was born October 17, 2006. A few days later, Ms. Davenport provided a crib for Child because Mother and Child were sleeping on the floor of the apartment of two acquaintances. Mother was not working at the time, and her roommates provided her with food. The living conditions in the home were poor.

Approximately two to three months later, Ms. Davenport visited Mother and Child again. At this time, they were living with Mother's brother, his wife, and their three sons. The conditions of the brother's home also were poor. The brother and his family all lived in one bedroom. At this time, Ms. Davenport noticed that Child “seemed developmentally delayed and a little weak.” He had slow muscle development and did not have good head support. Because developmental delays can be the result of poor nutrition, lack of attention, and lack of exercise, she instructed Mother about exercises and “sitting up practice” for Child. At this time, Mother had not obtained a birth certificate for Child, and Ms. Davenport instructed Mother that, without a birth certificate, she could not receive social services including WIC for Child. Child was being fed whole milk, not infant formula, which concerned Ms. Davenport because babies need the extra nutrition that formula provides to be able to develop normally. At the time, Mother was employed, and the family members traded child care.

On May 22, 2007, the United States Department of Homeland Security—Immigration and Customs Enforcement conducted a raid on a poultry processing plant in Barry County, where Mother was working. She was arrested in the raid. At the time of the raid, Child was 7 months old, and Mother and Child were still living with Mother's brother and his family. As a result of Mother's arrest, Child was left in the care and custody of Mother's brother. Her brother placed Child in the care and custody of Mother's sister because he could not take care of Child. Mother's sister and her husband have two children, who were then 3 and 1/2 years old and approximately 7 months old. They lived in a one-bedroom apartment, and both worked full-time.

While Child was living with Mother's sister, Ms. Davenport referred Mother's sister to Jennifer and Oswaldo Velasco, a local clergy couple, for babysitting services. Initially, the Velascos provided child care for Child while Mother's sister and her husband worked. Child occasionally would spend the night with the Velascos. When the Velascos began watching Child, he had received some immunizations but was behind schedule. He still was having developmental problems in that he was slow to sit up and crawl. After a couple of weeks, the child-care arrangement evolved into almost a fulltime placement with the Velascos watching Child all day and night during the week and Mother's sister watching Child on the weekends. After a few weeks, Child only spent a few hours with Mother's sister and her family on Sundays. At some point, Mother's sister asked the Velascos to take care of Child as she and her husband were unable to do so.

On September 9, 2007, Ms. Davenport visited Mother at the St. Clair County jail, where she was being held. A purpose of her visit was to ask if Mother would agree to Child's adoption. Mother refused. In the course of their conversation, Ms. Davenport informed Mother that Child was staying with Mother's sister. Mother told Ms. Davenport that “[she] was surprised that the baby had not stayed with her brother ... [b]ecause she felt like [her brother and his wife] would have been willing to take care of [Child].” Mother did not give any letters to Ms. Davenport to transport to her sister, brother, or Child.

The Velascos were acquainted with M.M.'s relatives. The Velascos knew that S.M. and M.M. (Adoptive Parents), a married couple, wanted to adopt a child because they were unable to have children and they had applied to become foster parents. On September 24, 2007, the Velascos asked the Adoptive Parents if they were interested in adopting Child. On that day, the Adoptive Parents began visiting with Child in the presence of others. Child had his first overnight visit with them on October 3, 2007.

On October 5, 2007, the Adoptive Parents filed a petition in the Circuit Court of Jasper County for transfer of custody, termination of Mother's parental rights, and adoption. At the time they filed the petition, Child was 11 months old. Mother still was incarcerated in the St. Clair County jail in Osceola and had been charged by the federal government with aggravated identity theft. ⁴ On October 11, 2007, Mother pleaded guilty to one count of aggravated identity theft. She then was sentenced to two years of incarceration and ordered to be deported following her release from prison. ⁵ Eleven days later, on October 16, 2007, she was served with the summons and petition in this case by the St. Clair County sheriff. From the time the pleadings were served, Mother would have known the location of Child and how to contact Adoptive Parents.

On October 17, 2007, the trial court set a hearing for the next day on the request for transfer of custody and issued a notice of that hearing to Joseph Hensley, Adoptive Parents' counsel, and Jamey Garrity, the Child's appointed guardian ad litem. Mother was not listed on the notice of the hearing to transfer custody, and the notice was not sent to her. Sometime thereafter, Mother was taken into federal custody and transferred to the United States penitentiary in Bruceton Mills, West Virginia.

On October 18, 2007, a hearing was held on Adoptive Parents' request to transfer legal custody of the Child to them. Mother was not present at the hearing, and no counsel had been appointed for her. Following the hearing, the trial court transferred legal custody of Child to the Adoptive Parents. On October 28, 2007, Mother sent Mr. Hensley, Adoptive Parents' attorney, a letter written in English and Spanish stating that she did not want her child adopted, she wanted her child placed in foster care, and she requested visitation.

On December 3, 2007, the trial court appointed James Calton to represent Mother. Notice of appointment of counsel was sent to Mother at the St. Clair County jail; however, service was refused.

After several months, the Adoptive Parents authorized their attorney to find an attorney for Mother who was fluent in Spanish. Aldo Dominguez agreed to represent Mother “when contacted by Joe Hensley, attorney for Petitioners [S.M. and M.M.], in June of 2008.” The Adoptive Parents agreed to pay Mr. Dominguez's...