Interest of A.L.B., In re

• Decision Date: 29 December 1987
• Docket Number: 52735,Nos. 52733,s. 52733
• Parties: In re Interest of A.L.B. and S.W.B.
• Court: Missouri Court of Appeals

Page 875

743 S.W.2d 875

In re Interest of A.L.B. and S.W.B.

Nos. 52733, 52735.

Missouri Court of Appeals,

Eastern District,

Northern Division.

Dec. 29, 1987.

Motion for Rehearing and/or Transfer Denied Feb. 4, 1988.

Edward M. Berg, Columbia, for appellant.

Carla Wood Tanzey, Lewis Eugene Melahn, Mexico, for appellee.

SIMEONE, Senior Judge.

I.

This case involves the interpretation of the 1985 amendments to the termination of parental rights statute, § 211.447, R.S.Mo., 1986. It involves the reciprocal duties and responsibilities of the Division of Family Services and the natural parent concerning the reunification of the parent with his children in foster care; whether the sexual abuse of a sibling is sufficient to terminate the parental rights of the natural parent to his own children; and whether there is clear, cogent and convincing evidence of neglect by the parent, sufficient to terminate his parental rights.

These cases are consolidated appeals by the natural father, R.L.B., from judgments entered on December 15, 1986 terminating the father's parental rights of his two children, S.W.B. and A.L.B., pursuant to § 211.447, R.S.Mo., 1986. He alleges several grounds of error. We affirm.

R.L.B. is the natural father of a boy, S.W.B., born April 5, 1982 and A.L.B., a girl, born on February 29, 1980. The father and the natural mother, C.A.B., were married in September, 1979. C.A.B., at the age of fourteen, became pregnant by an unknown father and gave birth to a daughter, A.D.D. in May, 1978. R.L.B. and C.A.B. lived with A.D.D. and their two children who are the subjects of these proceedings in Mexico, Missouri until approximately 1983. In January, 1984, C.A.B. and the three children moved in with her paramour, R.H., and resided in a trailer park in Mexico, Missouri. In April, 1984, a hotline referral was received regarding the treatment of the three children. R.H. was seen striking A.L.B. and A.D.D. Thereupon, the Juvenile Court issued a custody detention order, and as a result, all three children were made wards of the court, were placed in foster care and have remained in foster care ever since. In August, 1984, appellant moved to Windsor, Missouri in Henry County to live with his sister and to seek employment there. In December, 1984 or January, 1985, another hotline call was received alleging that appellant had sexually abused A.D.D., his stepchild, sometime while the family was still living together. In December, 1985, C.A.B. voluntarily terminated her parental rights to all three children. In October, 1986, the court terminated the mother's parental rights. As a result, the efforts on the part of the Division regarding reunification shifted to the father-appellant, R.L.B.

Appellant had sporadic employment and earned very little money in 1985 and 1986. In 1985 he earned $287.50 from one company, $189.13 from another and $112.56 from still another. He has never been employed full time. He has a limited education and poor educational skills. In 1986, he worked for only two months at $3.50 an hour receiving $160.36. However, he did own a truck, but no child support was ever made by the appellant. Ms. Karen Hillman, a caseworker, discussed appellant's obligation to support and visit the children and suggested that he pay a "couple dollars a week or whatever for child support." Ms. Hillman worked with appellant while he was in Audrain County, but when he moved to Windsor, his new caseworker became Mr. Darrell Hukriede.

In June, 1985, a "Court Approved Written Service Agreement" was presented to and discussed with appellant. The Agreement stated that appellant expressed an interest in "regaining custody of [his] children" and "in order to work toward that goal," he would agree to perform certain acts of communication and support. The amount of monthly child support was left blank in the "Agreement." The Agreement was forwarded to Henry County to Mr. Hukriede but on June 11, 1985, appellant refused to sign it on the advice of his attorney.

Since June, 1985, appellant has visited the children five times. These visits were set up by the caseworker. He visited the children on June 26, August 8 and 10, 1985, and March 8 and April 8, 1986. In May, 1986, although he was in Mexico, he declined to visit the children and in December, 1985, while in Mexico, he was asked if he wanted to visit the children, but he stated that "no, he had to get back to wherever he was going." He has not visited the children since April, 1986. The caseworker testified that "in the beginning, he made quite a few efforts. After the sexual abuse hotline [which charged him with sexual abuse of A.D.D], I'd say his efforts were minimal." During these visits appellant was "more [of] a playmate, wrestling with the kids, playing with them. He really didn't show any interest in their school or how they were doing or adjusting." The social workers attempted to interest appellant to attend "parenting classes" and offered him "gas" money to go from Windsor to Mexico on several occasions.

After the hotline call concerning A.D.D. appellant took a polygraph examination which appellant's attorney and the Juvenile Office agreed to. After that examination, the detective making the examination discussed the alleged sexual abuse matter with appellant. R.L.B. "stated that he had taken a bath with [A.D.D.] He stated that, her being curious, she did play with his penis." The detective testified that on another occasion, appellant "stated that he had laid on the bed with [A.D.D.] without any clothes on, and he said that she had been curious at that point." As a result of these encounters, appellant was "stimulated." In chambers, A.D.D. testified that appellant took her into his bedroom and told her to "get on top of him," and he "got on top of her" and asked her to touch him "in his privates." Appellant also "touched" her with his hand, but did not hurt her. Appellant denied lying on the bed, and as to the bath incident, exercised his Fifth Amendment rights.

From the Spring, 1984 through the early part of 1986 the caseworkers spoke to appellant about termination of parental rights and the failure to exercise his parental duties regarding communication and support. After the alleged sexual abuse incident, Ms. Hillman suggested that appellant needed counseling, but "he didn't see any reason to go." She testified that within a month after the children were placed in custody, in 1984, she informed appellant "what needed to be done to get the children out of foster care," and later informed him of the results of failing to communicate with or support the children.

While living in Windsor, Mr. Hukriede visited appellant in his home and in the county office. Hukriede did "things that we thought should be necessary in order to try and regain custody of his children." In June, 1985, the Written Service Agreement, "parenting classes," and attendance at Community Counseling Consultants were discussed. In June, appellant did attend counseling. Again in July, Hukriede contacted appellant and discussed the Service Agreement and the consequences of failing to sign it, but appellant again refused. Later in the year appellant desired to attend community counseling and requested "gas money" which was provided. He attended community counseling in December, 1985 and January, 1986. In January, appellant was informed that the Division could no longer provide gas money for counseling sessions. During the Spring and Summer several attempts were made to contact appellant to no avail, and eventually it was determined that appellant was living with a woman at another address. When contacted in September, 1986, the agreement was again discussed, but appellant refused to sign it.

All in all, appellant attended one parenting session, although available on a weekly basis, and two or three counseling sessions.

Mr. Hukriede testified that the efforts at reunification were unsuccessful. A "fair assessment" of the situation, he said is that the appellant "basically sat around and waited for [the caseworker] to do something for him and did essentially nothing for himself."

During the termination hearing the appellant testified that he did not make regular visits to Mexico to visit his children because of the "lack of funds and a lack of transportation." At the hearing much was made of the alleged failure of the Division to strictly follow the guidelines and procedures adopted in the "Alternative Care Procedures Handbook." The Handbook adopted by the Division provides that the case manager is to "assist in every way possible, and within 90 days preferably, a child's achieving a permanent home and family" by "structured, time-limited rehabilitation programs for parents to help reunite families" to use various techniques to reunify the children with parents such as planned, regular visiting and a case management method. Appellant's evidence sought to show that there was not a structured case plan, nor were there planned monitored visits, permanency planning review meetings, and that available federal funds were not given to attend counseling and parenting classes.

Appellant testified that when he visited his children he would give them a "little bit of money," but that he was not capable of contributing to his children. He felt that Family Services was not trying to "help get his children back" and "never gave me any money to come down there or nothing." He explained that he did not sign the Service Agreement because "I didn't feel that I could keep the agreement because I was being laid off in between jobs so much and I couldn't afford to make it down that much." He did not attend the counseling and parenting classes because he "didn't have money to make them all the time." Although he went to two or three classes and a counseling session, the "lady told me that there was no reason for me to be there; so I quit going again." He claimed he was never told of the consequences of not...