In the Interest of A.R. v. D.R. (Father)

• Court: Missouri Court of Appeals
• Writing for the Court: Ulrich, P.J., and Breckenridge; Joseph M. Ellis
• Citation: In the Interest of A.R. v. D.R. (Father), 52 S.W.3d 625 (Mo. App. 2001)
• Decision Date: 14 August 2001
• Parties: (Mo.App. W.D. 2001) In the Interest of A.R., Plaintiff, Juvenile Officer, Respondent v. D.R. (Father), Appellant, S.R. (Mother), Defendant. WD59440 0

52 S.W.3d 625 (Mo.App. W.D. 2001)

In the Interest of A.R., Plaintiff, Juvenile Officer, Respondent v. D.R. (Father), Appellant, S.R. (Mother), Defendant.

WD59440

Missouri Court of Appeals Western District

08/14/2001

Appeal From: Circuit Court of Jackson County, Hon. James D. Williamson, Jr.

Counsel for Appellant: Thomas R. Davis

Counsel for Respondent: Kristin E. Kandt

Opinion Summary:

D.R. ("Father") appeals the court's judgment terminating his parental rights to his natural daughter, A.R.

Division Three holds: (1) The record did not support a finding that Father's contacts with A.R. were nominal or token where, after discovering that A.R. was in DFS custody, Father contacted DFS and expressed his interest in obtaining custody of her; he quit his job in Mississippi and temporarily relocated to Kansas City in an effort to obtain custody; he participated in therapy sessions and visitation with A.R. over the next seven months, seeing her at least twelve times; he bought her food, clothing and gifts; and he attended individual therapy sessions, court hearings and the only family team support meeting for which he was provided notice.

(2) The record does not contain clear, cogent and convincing evidence that Father showed an intent to abandon A.R. for a period of more than six months between the time A.R. was placed in foster care and the time the petition was filed where Father temporarily relocated to Kansas City for seven months in an attempt to obtain custody of A.R.; Father maintained more than token contact with A.R. during that time period; Father requested further visitation with A.R. that was denied; Father purchased clothing, food and gifts for A.R.; prior to returning to Mississippi, Father explained to both A.R. and her therapist that he would continue to attempt to gain custody of her; and, upon learning that a motion had been filed to terminate his parental rights, Father obtained an attorney to oppose that motion.

(3) The juvenile officer could not rely upon actions by Father prior to A.R. being placed in foster care where the court's finding specifically related to the period of time "since the child came into foster care."

(4) Father's actions after A.R. was placed in foster care were sufficient to establish that he had repented any previous abandonment of A.R.

(5) Father's conduct after the petition was filed cannot form the basis for the court's finding of abandonment where the juvenile officer is only granted authority to file a petition on those grounds after the requisite six-month period has been met.

(6) The court's finding that Father abandoned A.R. under section 211.447.4(1) was not supported by the evidence and must be reversed.

(7) The court's findings that Father had failed to provide financial or other support for A.R. while she was in foster care and that the items he had provided were "merely token gifts" were not supported by the evidence where the juvenile officer's own evidence indicated that Father provided A.R. with an unspecified amount of food, clothing and gifts while she was in foster care. Further, the record did not contain evidence that Father failed to pay child support prior to May 2000, less than one month before the petition for termination of parental rights was filed, and the Children's Service Case Plan specified that no financial support plan was being implemented.

(8) The record does not support a finding that Father repeatedly or continuously failed to provide A.R. with adequate food, clothing, shelter or education under section 211.447.4(2) where the record reflects that Father provided A.R. with food, clothing and presents while she was in foster care, and the juvenile officer failed to present any evidence quantifying or qualifying Father's contributions or establishing any amount of child support arrearage.

(9) The court's finding that termination was proper under section 211.447.4(3) was not supported by the evidence where all of the court's findings indicating a condition of a potentially harmful condition continued to exist were related to Mother and not to Father. Further, the record does not contain clear, cogent and convincing evidence that would support the court's findings that Father had failed to work towards reunification or that the efforts of DFS to aid Father in adjusting his circumstances or conduct to provide a proper home for A.R. had failed.

(10) Reversal of the order of termination does not have any bearing on issues related to the custody of A.R.

Ulrich, P.J., and Breckenridge, J., concur.

Joseph M. Ellis, Judge

D.R. ("Father") appeals from the judgment entered in the Circuit Court of Jackson County terminating his parental rights to his natural daughter, A.R.Father had a relationship with A.R.'s mother "(Mother)" in the late 1980s that ended prior to A.R.'s birth on July 3, 1990. Shortly thereafter, Father began dating another woman whom he eventually lived with and with whom he had two children. At some point, Father and this other woman became engaged.

In 1993, Mother informed Father of A.R.'s existence. Subsequently, Mother would occasionally drop A.R. off to stay with Father when she was having trouble with whomever she was seeing at the time. Mother would drop A.R. off with Father after beatings of Mother by her boyfriend or when Mother's boyfriend would throw Mother and A.R. out of the house late at night. When A.R. arrived at Father's house, A.R. would not have anything other than the clothes on her back, and she usually needed to take a bath and have her hair combed. The length of time Mother would leave A.R. with Father varied from two days to three months.

In 1997, Father and his fiance decided to move to Mississippi with their children to be closer to his fiance's family. Father obtained a house and a new job in Mississippi. After Father moved to Mississippi, he did not maintain contact with A.R. because Mother moved frequently without telling him and did not have a telephone.

On April 2, 1999, the Division of Family Services ("DFS") took custody of A.R. as a result of alleged abuse by Mother. Subsequently, Father's sister ran into Mother on the street and found out that A.R. was in the custody of DFS. After discovering this information, Father's sister called Father and let him know where A.R. was. At that point, Father contacted DFS to find out where A.R. was staying and to express his interest in obtaining custody of her. After obtaining a telephone number for A.R., Father began making regular telephone calls to her. Father had numerous discussions and exchanged letters with DFS during this period of time, and eventually, DFS encouraged Father to come to Family Court in Kansas City to attempt to obtain custody of A.R.

Father returned to Kansas City for a hearing on August 25, 1999. During that hearing, Mother indicated that she did not want Father to have custody and refused to acknowledge that he was A.R.'s father. Father was told that he would have to obtain a paternity test and have a home study done before A.R. could be transferred to DFS in Mississippi to complete the custody process. A.R.'s therapist also scheduled weekly family therapy visits with Father. The purpose of those sessions was for DFS to get better acquainted with Father.

At this point, Father arranged to move in with his sister in Kansas City while he was attempting to obtain custody of A.R. He quit his job in Mississippi and obtained employment at a restaurant in Kansas City. Father attended two family therapy sessions in September and one in October. Father would occasionally call and cancel therapy sessions because of work.

Another hearing was conducted on October 20, 1999. At that time, a paternity test had been performed indicating that Father was indeed the father of A.R.

Subsequently, Father attended a family team support meeting on October 22, 1999. At that meeting, DFS recommended that Father attend further family therapy sessions and some individual sessions with A.R.'s therapist. DFS also indicated that it had not yet received a home study report from Mississippi. DFS estimated that the custody process would take another six months. At that point, DFS authorized unsupervised, overnight visitation with Father.

For Halloween, Father bought A.R. a costume and took her out trick-or-treating. Early in November, Father took part in a parent/teacher conference at A.R.'s school. Later in November, Father went to a father/daughter breakfast with A.R. at her school. Father had overnight visitation with A.R. over Thanksgiving, Christmas and New Year's at his sister's house.

Father had individual therapy sessions with A.R.'s therapist on January 19, February 21, and February 28, 2000. He also had family therapy sessions twice in February and once in March. During this time, if Father were required to cancel a therapy session for any reason, Ms. Kimball would deny him visitation with A.R. until the next session.

On March 16, 2000, Father contacted Ms. Kimball and told her that he needed to return to Mississippi to try to save his relationship with his fiance. At that time, a family therapy session was scheduled for him to tell A.R. Father met with A.R. and Ms. Kimball on March 20, 2000. During that session, Father explained to A.R. and Ms. Kimball that he needed to return to Mississippi to save his relationship with his fiance but that he was going to continue to try to get custody of A.R.

Two days later, on March 22, 2000, a hearing was conducted. A copy of the order and judgment from that hearing was mailed to Father, and Father was also notified that the next hearing was set for June 21, 2000. While in Mississippi, Father did not maintain contact with either A.R. or DFS.

After his efforts to save his relationship with his fiance in Mississippi failed, Father returned to Kansas City at the end of May 2000. Father did not contact DFS, Kimball or A.R. to let them know he had returned.

On June 19, 2000, the Juvenile...