In the Interests of: J.D., K.D., and Z.L.G.
| Decision Date | 26 December 2000 |
| Citation | 34 S.W.3d 432 |
| Parties | (Mo.App. W.D. 2000) . In Re the Interests of: J.D., K.D. and Z.L.G. Mike Waddle, Adair County Chief Juvenile Officer, and Missouri Department of Social Services, Division of Family Services, Respondents, v. L.D. (Natural Mother), Appellant, J.D.R. (Natural Father of Z.L.G.) and J.P.D. (Natural Father of J.D. and K.D.), Defendants. WD58610 Missouri Court of Appeals Western District Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Adair County, Hon. Russell E. Steele
Counsel for Appellant: Seth D. Shumaker
Counsel for Respondent: Rickey R. Roberts, Roya Hough and Amy V. Woods
Opinion Summary: L.D., the natural mother of minor children J.D., K.D., and Z.L.G., appeals the circuit court judgment terminating her parental rights and the order denying her post-trial motion for appointment of appellate counsel.
DISMISSED.
Special Division holds:
(1) L.D. claims that because she was financially unable to afford counsel, the court was required, under section 211.462.2, to appoint counsel for her. Section 211.462.2 provides that "[t]he parent or guardian of the person of the child shall be notified of the right to have counsel, and if they request counsel and are financially unable to employ counsel, counsel shall be appointed by the court." L.D., along with her husband, initially hired private counsel. Five weeks before trial, their private counsel was granted leave to withdraw, after a hearing at which neither she nor her husband attended. L.D. and her husband appeared pro se on the day of trial and made an oral motion for appointment of counsel, which was denied by the court because "[n]o additional evidence was presented to establish a change in the financial status of the mother and father to support their contention that they were indigent at the time of this hearing and, thus, entitled to the appointment of counsel . . . ." As to what evidence L.D. introduced at trial to show that she was financially unable to employ counsel, the record on appeal is silent because she did not file a transcript. This Court has no way of determining whether the juvenile court abused its discretion in overruling her oral motion for appointment of trial counsel pursuant to section 211.462.2 based on the evidence that was before it on that issue. Hence, this Court must dismiss her claim.
(2) L.D. makes the same claim of error with respect to her post-trial motion to appoint appellate counsel. Even if section 211.462.2 provides for the appointment of appellate counsel in termination of parental rights cases, L.D. did not file a transcript of the hearing held on her post-trial motion. Having no means for reviewing the claim, this Court must dismiss her appeal.
L.D. appeals from the judgment of the Circuit Court of Adair County, Juvenile Division, terminating her parental rights to her three minor children, J.D., K.D., and Z.L.G., and the order denying her post-trial motion for appointment of appellate counsel.
The appellant raises two points on appeal. In Point I, she claims that the juvenile court erred in denying her motion to appoint trial counsel in her termination of parental rights action because the court was required to appoint trial counsel for her under section 211.462.21 in that she demonstrated that she was financially unable to employ her own. In Point II, she makes the same claim of error that she raises in Point I, except with respect to her post-trial motion to appoint appellate counsel.
We dismiss.
On June 28, 1999, the respondent, Mike Waddle, the Chief Juvenile Officer of Adair County, filed the necessary petitions to terminate the parental rights of the appellant and her husband with respect to their two children, J.D. and K.D. He also filed a petition to terminate the parental rights of the appellant as to Z.L.G. In all three petitions the respondent alleged, inter alia, that the children: (1) "ha[d] been in foster care for at least fifteen of the most recent twenty-two months," section 211.447.2(1), RSMo Supp. 1998; (2) had been abused or neglected, section 211.447.4(2), RSMo Supp. 1998; and (3) had been under the jurisdiction of the juvenile court for one year and that the parents had failed to rectify the conditions which led to the court's taking jurisdiction, section 211.447.4(3), RSMo Supp. 1998.
On July 28, 1999, the appellant's then trial counsel filed a motion to appoint him as trial counsel for the appellant and her husband pursuant to section 211.462.2. At the scheduled hearing on the motion on August 30, 1999, the motion was withdrawn.
On December 23, 1999, appellant's trial counsel filed a written request for leave to withdraw as counsel, with notice to the appellant. On January 5, 2000, the court took up the motion and granted it. The appellant did not appear to oppose the motion. A copy of the court's order allowing trial counsel to withdraw was sent by certified mail to the appellant on January 7, 2000.
On February 14, 2000, the day of trial, the appellant and her husband appeared pro se and made an oral motion for the juvenile court to appoint trial counsel, which was heard and overruled. The case proceeded to trial. On March 28, 2000, the juvenile court entered its judgment terminating the appellant's parental rights to J.D., K.D., and Z.L.G., and her husband's rights to J.D. and K.D., having found by clear, cogent, and convincing evidence that the allegations of the petitions to terminate their parental rights were true, and that the best interests of the children would be served by termination.
On April 27, 2000, the appellant filed a "Petition to Proceed in Forma Pauperis and Motion for Appointment of Counsel." The petition and motion were amended on May 9, 2000, and were heard on May 17, 2000, and taken under advisement. On June 1, 2000, the juvenile court entered its order denying the amended petition and motion, finding that the appellant was not indigent and was financially able to employ appellate counsel.
This appeal follows.
The standard of review in termination of parental rights proceedings requires that we sustain the judgment of the juvenile court unless it is supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In re S.L.B., 964 S.W.2d 504, 506 (Mo. App. 1998) (citing In Interest of M.R., 894 S.W.2d 193, 195 (Mo. App. 1995). We consider the evidence and all reasonable inferences therefrom in the light most favorable to the trial court's judgment and disregard all evidence and inferences to the contrary. H.W.S. v. C.T., 827 S.W.2d 237, 240 (Mo. App. 1992) (citations omitted).
In Point I, the appellant claims that the trial court erred in denying her motion to appoint trial counsel in the termination of parental rights action below because the court was required to appoint trial counsel for her under section 211.462.2 in that she demonstrated that she was financially unable to employ her own. Because the appellant has failed to provide us with a transcript of the proceedings below, necessary to establish her claim in Point I, we are unable to review it on the merits.
Section 211.462.2, governing, inter alia, the appointment of counsel in termination of parental rights cases, provides that:
The parent or guardian of the person of the child shall be notified of the right to have counsel, and if they request counsel and are financially unable to employ counsel, counsel shall be appointed by the court. Notice of this provision shall be contained in the summons. When the parent is a minor or incompetent the court shall appoint a guardian ad litem to represent such parent.
Proceedings to terminate parental rights are of the utmost gravity, and the terms of the statute must be strictly applied. In the Interest of W.F.J., 648 S.W.2d 210, 214 (Mo. App. 1983). Failure to appoint counsel to represent the parents or to obtain an affirmative waiver of that right has been held to be a reversible error. B.L.E. v. Elmore, 723 S.W.2d 917, 920 (Mo. App. 1987). However, the right to counsel under this statute is not absolute. In the Interest of K.D.H., 871 S.W.2d 651, 654 (Mo. App. 1994). Section 211.462.2 only requires the court to appoint counsel if the parent requests it and shows that he or she is financially unable to employ counsel. In Interest of K.L., 972 S.W.2d 456, 461 (Mo. App. 1998).
The appellant, along with her husband, initially hired private counsel to represent them in the...
To continue reading
Request your trial
-
Duncan v. Missouri Dept. of Corrections
...to present a record that contains `all the evidence necessary for our making determinations in the issues raised.'" In re J.D., 34 S.W.3d 432, 435 (Mo.App. W.D.2000) (quoting State ex rel. Callahan v. Collins, 978 S.W.2d 471, 474 (Mo.App. W.D.1998)); see Rule 81.12(c) Missouri Rules of Civi......
-
In re J.S.W.
...and (2) demonstrates that he or she is indigent and financially unable to employ counsel. I.B., 48 S.W.3d at 91 (citing In re J.D., 34 S.W.3d 432, 434 (Mo.App. W.D.2000)); K.L.T., 237 S.W.3d at 607 n. The trial court appointed Sidel to represent Mother at the outset of the case,3 and Sidel ......
-
In re L.E.C.
...implicated here inasmuch as it only governs the appointment of counsel in actions to terminate parental rights. In the Interest of J.D., 34 S.W.3d 432, 434 (Mo.App. W.D.2000); In the Interest of M.A.J., 998 S.W.2d 177, 181 (Mo.App. 5. As used in Rule 116.01, the "custodian" of a juvenile in......
-
In the Interest of J.R., D.R., W.R., And K.R.
...W.D.2006) (finding no error in trial court's failure to appoint father counsel before he requested counsel); see also In re J.D. 34 S.W.3d 432, 434 (Mo.App. W.D.2000) (“the right to counsel [in termination proceedings] is not absolute”). Likewise, when a parent specifically waives his or he......