Juvenile Officer v. B.M. (In re Interest of E.B.M.)
| Decision Date | 29 September 2020 |
| Docket Number | WD 83612 |
| Citation | 609 S.W.3d 919 |
| Parties | In the INTEREST OF: E.B.M., Juvenile; Juvenile Officer, Respondent, v. B.M., Appellant. |
| Court | Missouri Court of Appeals |
Katie Rooney, Kansas City, MO, Counsel for Appellant.
Michael Herrin, Kansas City, MO, Counsel for Respondent.
Lori Stipp, Kansas City, MO, Co-Counsel for Respondent.
Monica Hutchinson-Penrose, Kansas City, MO, Co-Counsel for Respondent.
Mary Mann, Kansas City, MO, Counsel for Juvenile.
Before Division One: Thomas H. Newton, P.J., Mark D. Pfeiffer and Edward R. Ardini, Jr., JJ.
B.M. (Father) appeals the Jackson County Circuit Court judgment terminating parental rights in E.B.M. (Child) who was born in January 2018. Father challenges the trial court's application of law, the weight and sufficiency of the evidence, the exercise of its discretion, and rulings in alleged violation of the constitutional right to travel freely. We reverse and remand for reconsideration in light of the home study that was finalized after the termination hearing concluded.
Father and Mother, who were not married, lived in a Texas hotel in January 2018 when Mother abruptly left and traveled to Missouri to give birth to the Child.1 Because Mother had unmedicated mental health problems and one of the Child's half-siblings had previously died from malnutrition and dehydration, the Child was immediately taken under the Jackson County Circuit Court's jurisdiction and into Children's Division custody.2 Father searched for Mother, guessing that she had gone to the Kansas City, Missouri area, found the hospital where she had given birth, and visited the Child in the hospital two days after the birth; he participated in person in the protective custody hearing during which the trial court ordered the completion of an Interstate Compact on the Placement of Children (ICPC) home study for Father. Father returned to Dallas, Texas. Father had two teenaged children, who were living with their mother in Indiana, and a good support system there, so he and the Child's Mother moved to Indiana in March 2018. At a disposition hearing in March 2018, the trial court expressed concern about Father's housing instability and ordered that Father have no contact with the Child until paternity was established. Father secured an apartment in Indianapolis several months after the return to Indiana and informed the Children's Division. Mother lived with him off and on until December 2018, when the relationship ended.
Father communicated sporadically with the Children's Division from January 2018 until the week before a hearing held in late June 2018 when he provided a copy of his lease. The trial court found, among other matters, that neither parent had communicated with the Children's Division between the March and June 2018 juvenile proceedings. The trial court also found that, while paternity testing had been arranged for Father in Texas in February 2018, he failed to appear, and neither parent had visited the Child or provided for the Child financially or otherwise since birth. The record shows that Father missed the test because he was in the hospital. The juvenile court concluded that the Child had been abandoned and changed the permanency goal to termination of parental rights and adoption, although both parents were ordered to participate in reunification services and paternity testing was ordered again; Father was to have no contact with the Child until paternity was established.
Paternity testing was conducted in August 2018 and showed that Father was the Child's father, but he did not learn the results for several months. The Juvenile Officer filed a petition in September 2018 to terminate Father's parental rights on grounds of abandonment, abuse/neglect, parental unfitness, and failure to rectify. After a third caseworker finished training and was assigned the case file, which included the testing results, she reached out to Father and was able to arrange a second visit with the Child in November 2018. Before the termination hearing began in October 2019, Father traveled to Kansas City five additional times to see the Child; some of the supervised one-hour visits coincided with court hearings or the psychological evaluation he was ordered to undergo. The evidence showed that he had to travel by bus to Kansas City, which took a significant amount of time and expense—up to 20 hours for the round-trip and $300—and he was sometimes forced to sleep in the bus station for lack of funds to pay for a hotel room. Between June and October 2019, he traveled to Florida and Chicago for a wedding and family business without incurring any expense other than $50 for the bus to Chicago.3 While he brought toys, diapers, formula, and clothes on several of the visits, Father did not contribute to the Child's financial support, nor had he been ordered to do so. Father regularly participated in Family Support or Permanency Planning Review Team meetings and court hearings in 2019 by phone.
The ICPC application was not finalized in Kansas City until February 2019; it was not assigned to an Indiana caseworker tasked with conducting the home study until September 2019, and she did not finish the study until after the termination hearing concluded.4 The trial court refused to delay the start of the termination hearing on account of the incomplete ICPC and denied Father's request to hold the termination hearing record open for receipt of the home study after the hearing ended in December 2019. According to the trial court, the ICPC results would not be "relevant for [it] to rely on or determine as it relates to the questions that are in front of [the court]."
The trial court terminated Father's parental rights in January 2020 under sections 211.447.2(2) (abandonment), 211.447.5(2) (abuse or neglect), and 211.447.5(3) & (5)5 (child under jurisdiction for one year/failure to rectify and parental unfitness), and Father filed motions for new trial and to enter a new judgment or to amend the judgment. Father sought a new trial or to enter a new judgment on the ground that he had newly discovered evidence—the ICPC home study results, which recommended that the Child be placed with Father. The motion to amend the judgment asserted nine bases for relief. The trial court denied the motions; Father raises ten points on appeal.
A trial court's authority to terminate parental rights is purely statutory. Section 211.447.6 requires two findings before parental rights may be terminated. First, the trial court must find that one statutory ground for termination of parental rights exists. § 211.447.6. The trial court's finding must be supported by clear, cogent and convincing evidence that grounds exist for termination pursuant to subsection 2, 4 or 5 of [section 211.447]. Evidence is clear, cogent and convincing, if it instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true.
In re B.J.H., Jr., 356 S.W.3d 816, 823-24 (Mo. App. W.D. 2012) (citations omitted). We review the statutory basis of a judgment terminating parental rights "by determining whether or not it is supported by substantial evidence, is consistent with the weight of the evidence, or accurately declares and applies the law." Id. at 824 (citation omitted). In re C.L.W. , 115 S.W.3d 354, 356 (Mo. App. S.D. 2003). In re B.J.H., Jr., 356 S.W.3d at 824 (citation omitted).
Because termination of parental rights implicates a fundamental liberty interest protected by the U.S. Constitution, we review a termination judgment closely. Id. "The fundamental liberty interest of natural parents in raising their children does not evaporate simply because they have not been model parents or have lost temporary custody of their children to the State." In re K.A.W. , 133 S.W.3d 1, 12 (Mo. banc 2004). Accordingly, we strictly construe statutes terminating parental rights in favor of the parent and of maintaining the natural parent-child relationship. Id.
Father's ten points include challenges to the evidence supporting the grounds for termination as well as the trial court's conclusions regarding the Child's best interest. A number of the points focus on the trial court's abandonment determination, evidence of which supports the other grounds for termination that the trial court found. Father also asserts a constitutional right-to-travel claim. We do not consider the merits of any of these issues, because we believe that the trial court abused its discretion in overruling Father's motion for new trial on the basis of newly discovered evidence, so we consider point nine only.
In that point, Father argues that the trial court abused its discretion by effectively excluding the ICPC home study from evidence and by denying the post-judgment motion for new trial once that evidence became available. Because the trial court ordered an ICPC home study and "excluded related testimony in anticipation of the home study," Father claims that the premature termination of parental rights without that evidence shocks the sense of fairness and justice.6
While a court has considerable discretion in the admission or exclusion of evidence, because the ICPC home study was not available when this case was heard, the trial court did not actually rule on its admissibility.7 In fact, the trial court's ruling d...
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