In the Interest of Z.L.R.R.A.M. v. Greene County Juvenile Office

• Decision Date: 15 July 2011
• Docket Number: No. SD 30881.,SD 30881.
• Citation: 347 S.W.3d 601
• Parties: In the Interest of Z.L.R.R.A.M., Appellant,v.Greene County Juvenile Office, Respondent.
• Court: Missouri Court of Appeals

347 S.W.3d 601

In the Interest of Z.L.R.R.A.M., Appellant,

v.Greene County Juvenile Office, Respondent.

No. SD 30881.

Missouri Court of Appeals, Southern District, Division One.

July 15, 2011.Motion for Rehearing and Transfer

Denied Aug. 2, 2011.

Application for Transfer Denied

Oct. 4, 2011.

Jim R. Sharp, Sharp & Bredesen, Springfield, MO, for Appellant.Bill Prince, Springfield, MO, for Respondent.GARY W. LYNCH, Judge.

R.M. (“Father”) appeals the termination of his parental rights to Z.L.R. (“Child”) on statutory grounds of parental unfitness (section 211.447.5(6)) and failure to rectify (section 211.447.5(3)).¹ Father contends that the doctrine of “law of the case” precludes the termination of his parental rights on the evidence presented, that the findings of parental unfitness and failure to rectify were not supported by substantial evidence and against the weight of the evidence, and that termination is not in Child's best interest. Finding no trial court error, we affirm the trial court's judgment.

Factual and Procedural Background ²

Viewed in the light most favorable to the judgment, In the Interest of I.Q.S., 200 S.W.3d 599, 603 (Mo.App.2006), the following evidence was presented at trial: Child was born October 8, 2007. Her mother's condition and behavior at the time of Child's birth caused hospital staff to call the Children's Division (“the Division”), which took Child into protective custody. Child's mother told the Division that Father was Child's biological father and could be found in the county jail. An investigator from the Division was able to reach him there by telephone.³ Shortly thereafter, Father informed the Division that he was headed to prison and advised the Division on how to reach him there; at that time, Father also identified two of his relatives with whom Child might be placed.⁴ Child was initially placed in a “traditional foster home” located in Greene County and has remained in that same foster home throughout these proceedings. The trial court determined that placement with Father's relatives was not in Child's best interest.

The Division filed a petition to terminate the parental rights of both Father and Child's mother on October 20, 2008, in the Circuit Court of Greene County. In that petition, the Division alleged that Father had abandoned Child by failing to maintain consistent contact with her and by failing to provide her with consistent financial or emotional support; that Father had abused/neglected Child because of his chemical dependency and his failure to provide Child with a safe, stable, and secure home environment; and that Father was unfit to be a party to the parent-child relationship because of his incarceration. The following March, Father's mother filed a motion to intervene, asking that Child be placed with her or, in the alternative, with Father's half-sister.

During the initial trial on the petition, which took place on April 8, 2009, Child's caseworker testified that

[Father] calls me at least once a month from jail, sometimes more than that. He's written letters to me, as well as to [Child], and he sent cards to [Child] on a regular basis.... He sent cards [to Child] for every holiday, and sometimes just cards in general. I mean, he's done what he can as far as that.... He sent a card for every holiday that there was, so probably six or seven. And he sent cards when [Child] was ill at certain times as well.

Child's caseworker did not want Child to see Father in prison, but often when Father's mother visited Child, Father talked to Child by telephone. Father also calls Child's caseworker “to ask how [Child] is doing.... He just wants to know how she is doing.” Although by his own admission, Father had not sent any money or gifts to Child at his own expense, he had “gifts—clothing, toys, items brought from his family on his behalf numerous times.” The caseworker went on to describe Father as very interested in Child, very compliant with his court-approved treatment plan, and “really involved and active in this case, as best he can” while being incarcerated. She stated that Father had “done everything” that she and the Division had asked of him. She also stated, however, that Father had never met Child, and that there was not “any kind of bond or attachment between [Child] and [Father].” Child's caseworker recommended that termination of Father's parental rights to Child would be in Child's best interest because of the length of his incarceration and his lack of direct contact with Child. Child's guardian ad litem also recommended that termination would be in Child's best interest.

Evidence was also introduced of Father's participation in or completion of prison programs including Alcoholics Anonymous, Narcotics Anonymous, Commitment to Change (changing old behaviors and lifestyles), Living in Balance (drug education), Alternatives to Violence, Computer Literacy, Workplace Essential Skills, Houses of Healing, Inside Out Dads, and several prison ministries and bible programs. Father testified that he had signed up for every program the prison offered, including a group therapy class that had not yet begun.

The trial court, guardian ad litem, and Division all commended Father for his efforts, but the trial court ultimately terminated Father's parental rights on June 10, 2009, finding grounds of abandonment, abuse/neglect, and presumed parental unfitness. Shortly thereafter, the trial court denied Father's mother's motion to place Child in her care, citing the grandmother's age and “major health issues” as reasons she would be “unable to physically care” for Child, in addition to a lack of a bond between Child and her paternal relatives.⁵

This Court reversed the trial court's termination of Father's parental rights in In re Z.L.R., 306 S.W.3d 632 (Mo.App.2010) (“ Z.L.R. I ”). Specifically, we held that there was insufficient evidence to support the trial court's findings of abandonment and abuse/neglect and reversed the trial court's judgment as to those grounds. Id. at 637–38. We further held that the trial court had misapplied the law in presuming parental unfitness, and we remanded the case for further proceedings. Id. at 638–39.

Before the hearing after remand, held August 4, 2010, the Juvenile Office amended the petition for termination to include an allegation of failure to rectify. At the hearing, the trial court accepted into evidence the transcript from the initial termination trial. It further heard testimony from Child's caseworker, Father, and R.S., identified at one point as Father's half-brother-in-law.⁶ It was adduced that, following the entry of the initial judgment terminating Father's parental rights, the decision was made—as a result of collaboration between the Division, Child's guardian ad litem, the Juvenile Office, and the trial court—that Father should no longer be allowed to speak with Child on the telephone. That decision remained in place even after this Court's reversal of the initial judgment and remand. It was further adduced that Father continued to send cards and letters to both Child and her caseworker, and that Father's family continued to send Child gifts and meet with her once a month. The caseworker testified that Father never informed her of any plans for housing or a job upon his release. She also testified that Father had not shown “the ability to maintain suitable independent housing [,]” nor had he shown “the ability to provide for the minor child's financial or emotional support.” According to the caseworker, Child was still unaware of who Father was and refers to her foster parents as “Mom and Dad.”

According to Father, following the initial termination of his parental rights, he continued to enroll in classes offered in prison, including “Impact of Crimes on Victims” and “Cycle of Change.” Father admitted, however, that he has been ordered to pay $50.00 in child support per month and, although he receives an $80.00 check each month from his father, in addition to his $8.50 monthly prison wage, he has not paid any child support whatsoever. He further admitted that he has had trouble keeping jobs in the past and does not have a house or job lined up upon his future release from prison. He expected he would live with his mother in Springfield for some time following his release.

R.S. testified that he would be willing to employ Father at his auto body shop in Kansas City upon Father's release from prison and would pay Father $12.00 an hour. R.S. also testified that Father might be able to live with him until he was able to secure his own housing.

The trial court took the matter under advisement and ultimately entered its judgment on September 3, 2010, once again terminating Father's parental rights to Child. Finding that Father was unfit to parent, the trial court stated,

[Father] is unfit to be a party to the parent and child relationship because of specific conditions directly relating to the parent and child relationship that are of such a duration or nature as to prevent the father from providing for the mental, emotional, and physical needs of the child for the reasonably foreseeable future. Those conditions include the fact that due to [Father's] volitional criminal activity, the father has been incarcerated for the entirety of the minor child's life. The father has been incarcerated for fifteen of twenty three years of his adult life. The court recognizes that while incarceration alone is not a ground for termination of parental rights, it does not discharge a parent's obligation to provide a child with a continuing financial and emotional relationship. Here [Father] did neither. He has never had physical contact with the child and he has sent sporadic letters and cards. He has not provided even token support to the child on a regular basis. [Father] has never seen the child. The child does not know [Father] or have a bond with him. Assuming [Father] was out of prison and able to parent...