J.A.R. v. D.G.R.

• Decision Date: 01 April 2014
• Docket Number: No. SC 93649.,SC 93649.
• Citation: 426 S.W.3d 624
• Parties: In the Interest of J.A.R., D.K.R., and A.E.R., Children Under Seventeen Years of Age, Greene County Juvenile Office, Respondent, v. D.G.R., Appellant.
• Court: Missouri Supreme Court

426 S.W.3d 624

In the Interest of J.A.R., D.K.R., and A.E.R., Children Under Seventeen Years of Age, Greene County Juvenile Office, Respondent,

v.D.G.R., Appellant.

No. SC 93649.

Supreme Court of Missouri, En Banc.

April 1, 2014.

Kristoffer R. Barefield, Mann, Walter, Bishop & Sherman, Springfield, for the Father.

Brittany O'Brien, Springfield, for the Juvenile.

Marily A. Braun, Fair Grove, for the guardian ad litem.

ZEL M. FISCHER, Judge.

D.G.R. (“Father”) appeals from judgments terminating his parental rights to his children, J.A.R., D.K.R., and A.E.R. (collectively the “Children”). The circuit court concluded that Father abandoned and neglected the Children, ¹ that he failed to rectify conditions that led to the Children coming into care,² and that terminationof Father's parental rights was in the best interest of the Children. Father appealed, challenging the sufficiency of the evidence to support these findings. Because the circuit court's determinations that Father neglected his children and that it is in the best interest of the Children to have his parental rights terminated are supported by substantial evidence, the judgment is affirmed.³

Standard of Review

Appellate review of termination of parental rights is set out in this Court's recent decision in In re Adoption of C.M.B.R., 332 S.W.3d 793 (Mo. banc 2011), which reinforced the generally accepted principle in all types of bench-tried cases that circuit courts are better positioned to determine witness credibility and weigh evidence in the context of the whole record than an appellate court.

This Court reviews whether clear, cogent, and convincing evidence was presented to support a statutory ground for terminating parental rights under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. The judgment will be reversed only if we are left with a firm belief that the order is wrong.

Conflicting evidence will be reviewed in the light most favorable to the trial court's judgment. Appellate courts will defer to the trial court's credibility assessments. When the evidence poses two reasonable but different inferences, this Court is obligated to defer to the trial court's assessment of the evidence.

...

After this Court determines that one or more statutory ground has been proven by clear, convincing, and cogent evidence, this Court must ask whether termination of parental rights was in the best interest of the child. At the trial level, the standard of proof for this best interest inquiry is a preponderance of the evidence; on appeal, the standard of review is abuse of discretion.

Id. at 815–16. (internal citations and quotation marks omitted); see also In re Q.A.H., 426 S.W.3d 7, 12, 2014 WL 1226342, at *3–4 (Mo. banc 2014) (No. SC93677, decided March 25, 2014).⁴

The circuit court made extensive findings of fact and conclusions of law. Rule 73.01 additionally provides “[A]ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.” ⁵

In reviewing questions of fact, the reviewing court is to recognize that the circuit court is free to disbelieve any, all, or none of the evidence, and it is not the reviewing appellate court's role to re-evaluate the evidence through its own perspective. Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012). “The trial court receives deference on factual issues because it is in a better position not only to judge the credibility of the witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” Id. (internal quotation marks omitted).

Procedural and Factual Background

Father, a California resident, was having difficulty providing for the Children. In July 2010, he sent the Children to Missouri to live with a couple whom the Children viewed as their maternal grandparents. Father said he intended to leave California and move to Missouri within a few weeks. In the months that followed, Father repeatedly promised to visit the Children but failed to follow through on his promises. Around November 2010, the Children began to live with their mother in Springfield.

In March 2011, the Children came to the attention of the Children's Division due to Mother's intoxication and failure to supervise the Children.⁶ An investigator contacted possible custodians, including Father, but Father did not have suitable housing for the Children or the ability to get them from Missouri. The Children were taken into protective custody.

The Children remained in care, and consistent with the case goal of reunification, a treatment plan was prepared and ordered into effect for Father. Among other things, the court expected Father to obtain and maintain suitable housing.

Shortly after the Children came into care, Father advised the Children's caseworker that he had housing and was employed but provided no verification. He said he was coming to Missouri in the near future. At that time, the Children wanted to be reunited with Father in Missouri.

Father remained in contact with the Children's caseworker but made little progress on his treatment plan. The caseworker offered to initiate a request under the Interstate Compact for the Placement of Children (“ICPC”) so that Father could get services in California, but Father declined, stating that he intended to move to Missouri sometime between September and November 2011. Father could have, but did not, work on his treatment plan while in California. ⁷

Early on, Father maintained contact with the Children by telephone. The Childreninitially enjoyed and looked forward to those calls. During the calls, Father typically disparaged Mother and promised visits that never occurred. Each time Father broke a promise, the Children felt very disappointed and let down. As time progressed, the Children preferred not to talk to Father because they “didn't even want to hear it any more.” Sometime prior to March 2012, the Children had lost trust in Father, and the telephone calls were discontinued at the Children's request. At no point did the Children ever ask to call Father. Father was encouraged to write letters to the Children but he typically failed to do so, sending only two letters the entire time the Children were in care.

Father provided financial support for the Children in 2010 and 2011, but not in 2012. He sent $3,000 in July 2011 to be placed in savings for the Children, but Father subsequently directed that $2,450 of those funds be used for his purposes, $2,000 of which went to pay a portion of Father's fines. Father was capable of working and reported that he was working much of the time the Children were in care. Father provided no financial support for the children after July 2011.

In March 2012, Father came to Missouri to attend a permanency hearing and to make preparations to move here that month or the next. Father arrived several days later than he said he would, then cut the trip short and skipped the hearing,⁸ after which the circuit court changed the Children's case goal to adoption and found no exceptions to the statutorily required filing of termination of parental rights petitions. By the end of the next month, Father had not moved to Missouri, and the Juvenile Office had filed the underlying cases.

In June 2012, Father announced that he intended to remain in California. Unbeknownst to the Children's caseworker, Father had signed a one-year lease for a residence in California, listing the residents as one adult and three children. The Children's caseworker requested an ICPC home study, which later was denied due to, among other reasons, Father's stated intent to move to Missouri.

In late September 2012, a few days prior to the trial, Father abruptly moved to Missouri without any notice to the Children's caseworker. Father was unemployed and living in his vehicle. At trial, the evidence was that the Children had not seen Father since July 2010. The Children, then 11, 12, and 13 years old, all felt neglected because Father never followed through on his promises and failed to put forth effort on their behalf. None of the Children wanted to see Father or be reunified with him. A.E.R. felt abandoned by Father and feared that Father would get back together with Mother and beat her again. D.K.R. was very vocal in his disappointment with Father and wanted nothing to do with him.

Reunification was not a possibility at the time of trial or in the near future because Father could not support the Children, Father had no suitable home for the Children, the Children did not want to be reunified with Father, and family therapy would be needed before even supervised visitation could be considered. The Children's caseworker, while sympathetic to Father, conceded that his situation was little improved and that reunification could take “a very long time” given Father's lack of progress.

The Children's Division and the Children's guardian ad litem (GAL) recommended termination of Father's parental rights. Father attended the trial but elected not to testify.

The circuit court found three separate legal grounds for termination of parental rights were supported by the record—abandonment, neglect, and failure to rectify. The circuit court also found and concluded that termination of parental rights would be in the Children's best interest. Father appealed the judgments terminating his parental rights to the court of appeals, which affirmed the circuit court.⁹

A Party is Not Permitted To Make A Claim After Transfer That Was Not Presented To The Court of Appeals

Several of Father's points on appeal in his substitute brief filed in this Court assert that the circuit court's findings are against the weight of the evidence. However, this argument...