Interests of: T.E v. J.F.

• Decision Date: 02 January 2001
• Parties: (Mo.App. E.D. 2001) In the Interests of: T.E., J.E., J.F., S.F., and A.R.F., Department of Social Services, Division of Family Services, and Juvenile Officer, Respondents, v. J.F. (Father) and L.F. (Mother), Appellants. ED77163 0
• Court: Missouri Court of Appeals

35 S.W.3d 497 (Mo.App. E.D. 2001)

In the Interests of: T.E., J.E., J.F., S.F., and A.R.F., Department of Social Services, Division of Family Services, and Juvenile Officer, Respondents, v. J.F. (Father) and L.F. (Mother), Appellants.

ED77163

Missouri Court of Appeals Eastern District

01/02/2001

Appeal From: Circuit Court of Franklin County, Hon. Walter A. Murray, Jr.

Counsel for Appellant: Matthew Ambrose Schroeder and Michael Wade Clark

Counsel for Respondent: Julie Forman-Jones

Opinion Summary: J.F. (Father) and L.F. (Mother) appeal a trial court judgment terminating their parental rights of their four children, T.E., J.E., J.F., and S.F. Father and Mother also appeal from a Finding of Jurisdiction by the trial court over a fifth child, A.R.F.

Division Four holds: (1) The trial court's judgment terminating the parental rights of Father and Mother under Section 211.477 of T.E., J.E., J.F., and S.F. is supported by substantial evidence and is not against the weight of the evidence. (2) The trial court did not err in not disqualifying itself for cause because it had previously adjudicated the permanency plan prior to the Petition for Termination of Parental Rights hearing because Father preserved no constitutional question for appellate review of this issue and presented no evidence of trial court bias. (3) The Finding of Jurisdiction is not a final judgment for purposes of appeal. This court does not have jurisdiction to review the finding. (4) The trial court did not abuse its discretion and did not err in quashing the subpoena served on the DFS to produce case records of another DFS case. (5) The trial court did not err in denying Mother's request to exclude Petitioner's witnesses from the courtroom during the Petition for Termination of Parental Rights hearing because Mother did not show any abuse and prejudice resulting from non-segregation of witnesses.

Sherri B. Sullivan, Judge

J.F. (Father) and L.F. (Mother) appeal from a trial court judgment terminating their parental rights under Section 211.447¹ of their four children, T.E., J.E., J.F., and S.F. Father and Mother also appeal from a Finding of Jurisdiction by the trial court over a fifth child, A.R.F. We affirm in part and dismiss in part.

Mother has had fifteen pregnancies with six different men, leading to the births of thirteen children. Of the thirteen children born to Mother, two died from injuries suffered while in her legal custody. The remaining eleven children born to Mother have been removed by court order from her custody. Since the late 1970's, Mother has been involved with child protection agencies in several states.

Father and Mother considered themselves married in August 1988, but they were not legally married until 1995. T.E. was born in February 1989. J.E. was born in July 1990. J.F. was born in September 1991. S.F. was born in April 1994. A.R.F. was born in September 1999.

Father, Mother, T.E., J.E., and J.F. moved to Missouri in January 1992. In May 1992, the Missouri Department of Social Services, Division of Family Services ("DFS") received two hotline calls alleging abuse and neglect of T.E., J.E., and J.F. by Mother.² The first caller reported seeing T.E. and J.E., then ages three and twenty-two months respectively, running in the street unattended and seeing Mother hit the children with a board and pull their hair. The caller also indicated that there was excessive filth at the home. After the second call, the DFS workers visited neighbors and relatives and Father and Mother's home, where Mother threatened them during their visit. As a result of these investigations and learning of Mother's parental history, T.E., J.E., and J.F. were removed by court order from Mother's custody.³

While T.E., J.E., and J.F. were in protective custody, Father and Mother had another child, S.F., who was removed from their home when it was discovered that the home had no electricity or running water. While the children were in protective custody, Father and Mother cooperated with the DFS "to some extent but also with some hostility." Mother accepted parent aide services, and after Father was released from prison, they accepted counseling services. In July 1995, the four children were returned to the home.

In September 1995, the DFS received a report that the children were left unsupervised all day in the car at a Wal-Mart.⁴ The report was found to be "probable cause lack of supervision." However, the case was closed in January 1996.

In February 1996, the DFS received another report alleging that Father and Mother had not provided adequate supervision for the children. After an investigation, the allegations were found to be true, and physical neglect was also found, but the children remained with Father and Mother. The DFS provided preventative services to the family, including parent aide services, mental health classes for the children and the parents, parenting classes, and family therapy.

In the summer of 1996, the family moved out of their residence and began living in a tent and eventually in a 1969 mobile home without running water, sewage disposal, plumbing or electricity.⁵ Trash covered the campsite and an abandoned refrigerator was within access of the children. The DFS received a report that the children were unsupervised on busy streets and highways, where vehicles had to swerve to avoid hitting some of the children.⁶ Other reports stated that the children had chronic hygiene problems and chronic head lice. The children had to walk barefoot through animal feces and urine to gain entry to the home. Also, the children had to walk approximately 1/4 mile to the outhouse from their campsite without any supervision. The toilet was filled with feces within two inches from the top. Thousands of flies were present and a strong odor.

In October 1996, based on these conditions, T.E., J.E., J.F., and S.F. again were placed in protective custody by court order, and again the DFS provided services to the family. In January 1999, after a permanency review hearing, the trial court found that Father and Mother had not complied with the written terms of a Family Treatment Plan entered into with the DFS, that the DFS had made reasonable efforts, as described in Section 211.183, after removal of the children to make it possible for the children to return home, and that the DFS was not required to make further reasonable efforts for the children to return home.

In February 1999, the DFS filed a Petition for Termination of Parental Rights ("Petition") under Section 211.447. A hearing on the Petition was held for two days in June 1999 and for two days in August 1999. In its September 1999 judgment, the trial court concluded that, as to both Father and Mother, the DFS proved by clear, cogent and convincing evidence that grounds for termination of parental rights existed under Sections 211.447.2(1), 211.447.4(2), 211.447.4(3), and 211.447.4(6) and that termination was in the best interests of T.E., J.E., J.F., and S.F.

In September 1999, three days after her birth, A.R.F. was placed in protective custody by court order. In October 1999, the trial court entered a Finding of Jurisdiction over A.R.F. under Section 211.031.1(1) and affirmed, pending a disposition hearing, its previous order placing A.R.F. in protective custody.

Father and Mother filed separate appellate briefs. Thus, we will separately address each of their points on appeal. Father raises three points on appeal. In his first point, Father argues that the trial court erred in terminating the parental rights of Father and Mother because the DFS did not establish by clear, cogent and convincing evidence the basis for termination in that their home met the standard for adequate housing at the time of the Petition hearing and Father and Mother should not have had to defend their parental relationship with their children.

The trial court's judgment terminating parental rights will be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. In the Interest of F.N.M., 951 S.W.2d 702, 703 (Mo.App. E.D. 1997). The facts and reasonable inferences therefrom are viewed in the light most favorable to the trial court's judgment, and great deference is given to the trial court with respect to findings of fact and credibility of witnesses. Id. Before a court can terminate the rights of a parent, there must be clear, cogent and convincing evidence that one or more statutory grounds for termination set forth in Section 211.477 exist, and that such termination is in the best interest of the child. Id. at 705; Section 211.477.5. The parties seeking termination of parental rights bear the burden of proving their case by clear, cogent and convincing evidence, such that the finder of fact "is left with an abiding conviction that the evidence is true." In the Interest of F.N.M., 951 S.W.2d at 705. This standard of proof may be met even though the court has contrary evidence before it. Id.

In support of his argument that Father and Mother's home met the standard for adequate housing at the time of the Petition hearing,⁷ Father identifies the following evidence. Father testified that "electricity was granted" right after the Petition had been filed, the mobile home had running water, the sewer had been hooked up, and no debris was around the house and yard. Father stated that the home had been inspected and approved and that, at the time of the Petition hearing, "the mobile home [was] up and running and everything [was] working."

The trial court made the following relevant findings of fact as to Father:

16. Pursuant to Section 211.447.4(2), the children have been abused or neglected in that [Father] forced the children to live in an environment of extreme filth and squalor which did not come close to meeting minimal community standards in that they lived without clean water, sewer, electricity,...