Juvenile Officer v. B.R. (In re Interest of G.E.R.)

• Decision Date: 09 September 2014
• Docket Number: No. WD 77128.,WD 77128.
• Citation: 441 S.W.3d 190
• Parties: In the Interest of G.E.R.; Juvenile Officer, Respondent, v. B.R. (Father), Appellant.
• Court: Missouri Court of Appeals

441 S.W.3d 190

In the Interest of G.E.R.; Juvenile Officer, Respondent

v.B.R. (Father), Appellant.

No. WD 77128.

Missouri Court of Appeals, Western District.

Sept. 9, 2014.

Roya R. Hough, Harrisonville, MO, for respondent.

Patricia L. Lear–Johnson, Peculiar, MO, for appellant.

Before Division Three: GARY D. WITT, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge.

Opinion

GARY D. WITT, Judge.

B.R. (“Father”) appeals from the trial court's judgment terminating his parental rights in his minor child, G.E.R., based on abandonment. Father argues on appeal that (1) the trial court erred in finding he had voluntarily and intentionally abandoned his child in that there was insufficient evidence of a clear, cogent, and convincing nature, and (2) the trial court erred in finding it was in the child's best interest to terminate Father's parental rights because there was evidence favorable to him based on the factors under Section 211.447.7.¹ We reverse the trial court's judgment terminating Father's parental rights, as the record does not support a finding of voluntary and intentional abandonment sufficient to support termination. Because Point I is dispositive, we need not address Father's second point. The termination of Mother's parental rights has not been raised on appeal, and the trial court's judgment in that respect is affirmed.

FACTS AND PROCEDURAL HISTORY ²

T.R.F. (“Mother”) gave birth to G.E.R. on April 6, 2009. When G.E.R. was born, she tested positive for marijuana and exposure to methamphetamine. On April 8, 2009, the Children's Division (“Division”)³ took jurisdiction over G.E.R. and was granted temporary protective custody. On June 2, 2009, the court entered an order placing G.E.R. in the legal custody of the Division.

Mother did not list a father on the birth certificate, but she contacted Father's mother to indicate the child might be her grandchild. Father went to the hospital to see her, but Mother had a hospital order that prevented any visitors from seeing the child. She led Father to believe he would be able to visit the child the next day.

When Father attempted to contact Mother the day after the birth, Mother had already checked out of the hospital. Father contacted Mother's family and friends, but was repeatedly told by each that the child was “with an aunt,” not present at that time, was at the lake with grandparents, was in the car with Mother, or other information regarding the child's whereabouts, none of which turned out to be true. Mother concealed the child's whereabouts from Father but always maintained that she had the child in her custody. Father asked Mother's family whether they needed financial assistance for the child and was told that they did not. There is no evidence at any point during the first eight months of G.E.R.'s life that Father was aware that G.E.R. was in the custody of the Division.

In 2006, Father was arrested for distribution with intent to manufacture or produce methamphetamine, possession with intent, and second-degree assault and was placed on probation.⁴ On November 13, 2009, approximately six months after the child's birth, Father was incarcerated at the Lafayette County Jail on a probation violation for felony eluding.⁵ Father was transferred from the Lafayette County Jail to the Missouri Department of Corrections (“DOC”) on December 18, 2009. Father was thereafter incarcerated in DOC for three years until his release in December of 2012.

The only evidence presented at trial regarding the events prior to his incarceration was Father's uncontroverted testimony. During this period, Father believed that Mother or her family had G.E.R. and that Mother refused to accept Father's offers and attempts to provide financial support. Father was unaware of the putative father registry. Father did not assert his legal rights during this time period or contact an attorney regarding the matter. Because he was unaware that the Division had taken the child at birth, Father “never had any reason to obtain a birth certificate. [He] thought [his] child was with its mother and that it was safe.”

Father testified that, during his incarceration in county jail in 2009, communication was limited, and he was not able to attempt to contact Mother. However, once Father was transferred to the DOC, Father attempted to contact Mother once a month until he was successful in 2011. Approximately every three months, Father also requested that his mother try to locate Mother and G.E.R., and he requested that she drive by the house where Mother indicated G.E.R. was staying to see whether G.E.R. was receiving proper care. During the subsequent interactions between Father and Mother, Mother gave him reason to believe that she was ready and willing to have Father build a relationship with G.E.R. upon his release. Father testified that he told Mother that he wanted to have a relationship with his daughter and “to make sure she has the things she wants in life.” Father offered to send money while he was in prison, but it was still refused by Mother.⁶ Even when Father offered to send a check at Christmas for G.E.R., Mother told him to keep the money “where he needed it in there.”

Mother originally informed the Division that another man (“L.H.”) was the putative father of G.E.R. A court report dated May 15, 2009 listed L.H. as the putative father. A court report dated November 14, 2009 listed the father as unknown. The November 14, 2009 court report indicated that paternity testing conclusively established that L.H. was not the father of G.E.R.

A March 2, 2010 court report from the Division listed Father as the putative father but used an incorrect spelling of Father's first name. Conversely, the next two reports once again listed L.H. as the putative father, even though the Division had the paternity report indicating that L.H. was conclusively not the father. The next report once again incorrectly spelled Father's first name. Finally, the October 18, 2012 report correctly listed Father as the putative father of G.E.R. with the correct spelling of his name. The Division's efforts to locate Father finally began in the spring of 2012, but the first attempts once again used the incorrect spelling of Father's first name. The search did yield one possibility for a match in DOC that stated “possible match currently incarcerated.” No further efforts were made by the Division to determine whether the “possible match” was, in fact, Father.

Finally, in October, 2012, when G.E.R. was three and a half years old, Mother admitted to Father during a phone conversation that she had been lying the whole time regarding the whereabouts of G.E.R. Mother finally informed him that G.E.R. was in the Division's custody and that it was taking her parental rights away. At this point, Father asked his mother to contact the Division, which responded to him with an “incarcerated parent” letter. Upon Father's release that December, the legal process between Father and the Division began, starting with a paternity test, which conclusively established Father's paternity.

After the paternity test, Father became engaged in services from the Division. Father completed a six-month inpatient therapeutic drug treatment program while he was incarcerated and had a written service agreement with the Division for steps he was to complete following his release. Father also participated in outpatient substance treatment. The agreement with the Division required Father to have a psychological evaluation, a drug-and-alcohol assessment, a parenting assessment, and to see an individual therapist. Katie Hillen (“Hillen”), the Division's employee assigned to G.E.R.'s case, testified that efforts to obtain documentation regarding Father's completion had been difficult for both Hillen and Father, as Father's parole officer had not been cooperative, and many of the services Father was receiving were also a part of his parole. The only requirement of the agreement that Father had not met before the termination hearing was providing written proof of employment through pay stubs or any other method. Father testified that he is employed as head mechanic and in charge of parts sales at Ace Auto. Hillen stated there was no reason not to believe Father's testimony that he had been employed at the same business for eight and a half months, earning $1200 per month.

Christina Lenon (“Lenon”), a professional counselor, conducted a bonding assessment between Father and G.E.R.⁷ Lenon concluded that there was no psychobiological bond⁸ between the two but she did see a rapport developing. Lenon was surprised that the rapport was built at all because (based on Lenon's recommendation) G.E.R. was not informed who Father was or why she was visiting with him.

Following the bonding assessment, Father and G.E.R. had six supervised visits between August 21, 2013 and October 29, 2013. Father attended every visit. No one informed G.E.R. that these supervised visits were with her biological father. Reports show that at first G.E.R. was hesitant and at times was crying and hiding behind the supervisor. By the last visit, G.E.R. appeared to enjoy all activities with Father, who would bring puzzles, toys, and clothes for the child to these visits. Further, Father made four $50 support payments during this period.

Father resides with his mother and her husband, and Father pays them rent. Father testified that he will reside there until he is able to support both himself and G.E.R. Father states that he is committed to continuing therapy appointments and other steps to show improvement, while maintaining support at home until he can show greater independence.

In May, 2013, psychologist William McDonnell (“McDonnell”) evaluated Father. He diagnosed Father with antisocial personality disorder.⁹ McDonnell believed that, while not necessarily putting a child at higher risk, this sort of personality disorder makes one resistant to change, more likely to relapse into drug abuse, and...