Juvenile Officer v. B.J.H. (In re B.J.H.)

• Decision Date: 10 January 2012
• Docket Number: Nos. WD 73717,WD 73755.,s. WD 73717
• Citation: 356 S.W.3d 816
• Parties: In the Interest of: B.J.H., JR. & M.R.H., Respondents,Juvenile Officer, Respondent,Missouri Children's Division, Respondent, v. B.J.H., Sr. (Father), Appellant.
• Court: Missouri Court of Appeals

356 S.W.3d 816

In the Interest of: B.J.H., JR. & M.R.H., Respondents,Juvenile Officer, Respondent,Missouri Children's Division, Respondent,

v.B.J.H., Sr. (Father), Appellant.

Nos. WD 73717

WD 73755.

Missouri Court of Appeals, Western District.

Jan. 10, 2012.

J. Aaron Ellsworth, Lake Ozark, MO, for appellant.

Robert J. Seek, Eldon, MO, for respondent Juvenile Officer.

Gerard “Jay” Harms, Jr., Osage Beach, MO, Guardian Ad Litem.

Before Division Two: MARK D. PFEIFFER, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

B.J.H., Sr. (“Father”) appeals from the trial court's judgments terminating his parental rights to his son, B.J.H., Jr. (“Son”), and his daughter, M.R.H. (“Daughter”). In his five points on appeal, Father argues that the trial court erred in finding that there was a statutory ground for terminating his parental rights and in finding that termination of his parental rights was in the best interest of Son and Daughter. We affirm.

Factual and Procedural Background¹

Father is the biological father of Son, born February 15, 2007, and of Daughter, born December 16, 2007. At the time each child was born, Father was married to A.E.H. (“Mother”), and they lived together in Versailles, along with Mother's son from a previous relationship. While Mother and Father lived together with the children, Father was employed at Wal–Mart. Father testified that he provided most of the care for the children when he was not working.

Mother and Father separated in May 2008. Father testified that he offered the Versailles residence to Mother. She refused. Instead, Mother took the children with her to live with Father's sister. Mother and the children lived there for two weeks, at which time they moved in with Mother's friend, Ruby. Father testified that while Mother and the children lived elsewhere, he visited them regularly and voluntarily provided child support of approximately $300 per month.

In the days leading up to the Children's Division taking Son and Daughter into protective custody, Mother allowed Father's aunt to take Son and Daughter in her care. Father's aunt observed that Son and Daughter were covered in insect bites and rashes. As a result, Father's aunt purchased medicine for them. Then, Father's aunt delivered Son and Daughter to Father. At that time, Father's aunt told Father that Son and Daughter were living in a tent when she retrieved them from Mother's residence. Father admitted at trial that, although Son and Daughter were suffering from insect bites and rashes, he returned them to Mother.

On July 14, 2008, the Children's Division took Son, Daughter, and Mother's son from a previous relationship into protective custody. The children were in Mother's custody, and Son and Daughter were found covered with untreated and infected insect bites. Son and Daughter also were suffering from yeast infections. Additionally, Mother's son from a previous relationship had wandered from the house and had locked himself in a vehicle. He was missing for at least 2 hours, but Mother did not file a missing child report. The next day, the children were placed in a foster home with E.S. (“Foster Mother”) and R.S. (“Foster Father”).

A protective custody hearing, which Father attended, was held on July 16, 2008. At this hearing, an order was entered that placed physical and legal custody of the Son and Daughter in the Children's Division and maintained placement with Foster Mother and Foster Father. In addition, supervised visitation was offered to Mother and Father at this time.

Father's first one-hour, supervised visitation took place on July 23, 2008, at the Children's Division office in Miller County. Father's paramour accompanied him to the visit. According to the Children's Division supervisor, Father was hesitant to hold the children, but before the visit ended, Father held and cuddled Son while Father's paramour tended to Daughter's needs.

The one-hour, supervised visits took place weekly and continued until September 2, 2008. At that point, Father began having two-hour, supervised visits weekly with Son and Daughter. The two-hour, supervised visits were scheduled each week until May 15, 2009, and Father attended most of the visits.

In addition to the visits with Son and Daughter, Father had regular meetings with the Family Support Team, which consisted of employees of the Children's Division, a juvenile officer, Son and Daughter's guardian ad litem, Mother, and Father. During those meetings, the Family Support Team developed a written service agreement for Father. Father's written service agreement provided that he would keep Children's Division informed of his current address, schedule and participate in a psychological evaluation, attend all offered visits, attend all Family Support Team meetings and Permanency Planning Review Team meetings, and participate in all services offered by Children's Division.

In February 2009, Father's weekly visits with Son and Daughter were briefly interrupted because Daughter had surgery to correct a cranial deformity. On the day of the surgery, Father arrived at the hospital after the surgery began but stayed until the surgery was complete. Foster Mother was the first person to see Daughter following the surgery. After Foster Mother returned to the hospital's waiting room, Father was able to visit Daughter. During Daughter's five-day, inpatient recovery, Foster Mother stayed in the hospital overnight with Daughter. Father neither stayed overnight with Daughter nor visited Daughter during the remainder of her inpatient recovery.

Also in February 2009, a Children's Division employee inspected Father's residence in Urbana.² The inspection revealed that Father would need to obtain a fire extinguisher and additional smoke detectors before Son and Daughter would be allowed to live with him. In addition, Father would need to obtain an escape ladder because his apartment was located in the second story of a building. The Children's Division informed Father how to obtain those items, but he failed to do so.

On May 15, 2009, Father's visitations were extended to four hours. Father's first opportunity for a four-hour visit was on May 19, 2009. Father failed to call the Children's Division office to inform the employees that he would miss the visit. Father attended the next scheduled visit on May 26, 2009, but arrived thirty minutes late. After the May 26, 2009 visit, Father failed to attend four consecutive scheduled visits.

The next visit Father attended was on June 30, 3009. During that visit, Father informed the Children's Division employee that he had been fired from his job at Wal–Mart two weeks earlier for “gross misconduct.” Father said that he applied for unemployment and that he would like to obtain his GED. Father also mentioned that his landlord was selling the building in which he lived and that he had to be out of his apartment by August 15, 2009. After that time, Father was without a stable residence, living either with friends or his aunt in the Eldon area.

Father's first unsupervised visitation was on July 28, 2009. The first two hours of the visit were supervised, and the second two hours were unsupervised. On August 4, 2009, Father's visits were extended to six hours-two hours supervised and four hours unsupervised. The Children's Division employee noted the following: “[Father] did not have to be redirected at any time. He tended to their bathroom and diaper needs, and controlled the children without raising his voice. [Father] has made great improvement over the last few months.”

Despite Father's progress with his parenting skills, Father began missing visitations. Of the four visits offered between August 4 and September 15, 2009, Father only attended one. On September 15, 2009, Father attended a Permanency Planning Review Team meeting. At that meeting, the Children's Division employee reported that the inconsistency of Father's visits was hurting Son and Daughter. At that same meeting, Father refused to give the Children's Division his address. Eventually, though, Father said that he lived at his aunt's house, which was less than a mile from the Children's Division office.

Father's visits were still irregular after the September 15, 2009 Permanency Planning Review Team meeting. The next Permanency Planning Review Team meeting was held on March 17, 2010. Between those two meetings, Father was offered twenty-six visits with Son and Daughter but only attended eleven. A Children's Division employee made the following note at that time: “[Father] needs to be consistent; the children are losing their closeness with [him]. They cry at every visit now and do not want to go with [Father].”

During the time between the September 2009 and March 2010 Permanency Planning Review Team meetings, Father remained unemployed, and his housing situation was unstable. At first, he lived either with friends or his aunt in the Eldon area. In February 2010, Father's paramour bought a mobile home, and he lived with her there. Father and her paramour were making repairs to the mobile home so that Son and Daughter could live with them. In particular, Father and his paramour were repairing the portion of the ceiling in one of the bedrooms that had sustained water damage. A Children's Division employee inspected the mobile home and found that it was not suitable for living due to the mold that developed from the water damage.

Following the March 17, 2010 Permanency Planning Review Team meeting, Father continued to miss scheduled visitations. Of the next twenty-two visits offered to Father,³ he attended six. At one point, Father missed nine visits in a row without explanation, and as a result, his unsupervised visits were discontinued. Instead, Father was offered three-hour, supervised visits.

On June 28, 2010, Father attended a Family Support Team meeting and reported that he had a new address in Eldon. Father told the team that he...