Juvenile Officer v. D.L.S. (In re Interest of D.L.S.)

• Decision Date: 28 July 2020
• Docket Number: WD 83518
• Citation: 606 S.W.3d 217
• Parties: In the INTEREST OF: D.L.S. III and D.L.S.; Juvenile Officer, Respondent, v. D.L.S. II, Appellant.
• Court: Missouri Court of Appeals

606 S.W.3d 217

In the INTEREST OF: D.L.S. III and D.L.S.;

Juvenile Officer, Respondent,

v.D.L.S. II, Appellant.

WD 83518

Missouri Court of Appeals, Western District.

OPINION FILED: July 28, 2020 Application for Transfer to Supreme Court Denied August 27, 2020

Lori A. Fluegel, Kansas City, MO, for respondent.

Sandra J. Wirtel, Kansas City, MO, for appellant.

Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Alok Ahuja, Judge and W. Douglas Thomson, Judge

Cynthia L. Martin, Judge

D.L.S. II ("Father") appeals from the trial court's judgment terminating his parental rights to D.L.S. III and D.L.S. (collectively "the Children"). Father argues on appeal that the trial court's judgment constituted error in that: (1) the judgment considered Father's emotional bond with the Children when determining whether statutory grounds existed for termination of his parental rights; and (2) the judgment found that Father was unfit to be a party to the parent-child relationship without finding a convincing link between past behavior and predicted future behavior. We affirm.

Factual and Procedural History¹

Father is the biological father to D.L.S. III and D.L.S., male twins born on May 13, 2012, and N.K.S. ("Mother") is their biological mother. The Children have not seen Father since approximately 2015. Father moved to Houston, Texas to be with his family at some point prior to 2017. While in Texas in 2017, Father suffered at least one stroke that caused him to have severe medical problems and limitations so that, despite making improvements, Father continued to reside in a rehabilitation facility in October 2019.

In October 2017, Mother gave birth to another son. Both Mother and the newborn son tested positive for methamphetamine at birth. On October 12, 2017, the Juvenile Officer of Jackson County, Missouri ("Juvenile Officer") instituted abuse and neglect proceedings, filing petitions that alleged the Children were without proper care, custody, and support necessary for their well-being in that Mother neglected the Children while abusing methamphetamine; lacked appropriate housing for herself and for the Children; exposed the Children to her live-in paramour, a registered sex offender; and exposed the Children to domestic violence between Mother and her live-in paramour. The trial court issued orders for temporary protective custody on October 12, 2017, placing the Children in the temporary legal custody of the Missouri Children's Division ("Children's Division") with appropriate placement. Following an adjudication hearing in December 2017, the trial court sustained the Juvenile Officer's first amended petition, finding that the Children were in need of care and assuming jurisdiction over the Children. In January 2017, the trial court entered an order of disposition that indicated Father "resides out of state in Texas: he is disabled and resides in a care facility" and indicated that Father "is not requesting custody." While the trial court ordered that Mother receive services provided by the Children's Division, no services were offered to Father other than the trial court's mandate that contact between Father and the Children be supervised as deemed appropriate by the Children's Division.

On October 21, 2018, the trial court issued an order adopting a family court commissioner's findings and recommendation that concluded the Children had been in alternative care for more than twelve consecutive months and that it was not reasonably likely that reunification may be accomplished within the foreseeable future. Thus, the trial court altered the permanency goal from reunification to termination of parental rights and adoption.

The Juvenile Officer instituted a proceeding for terminating Father's parental rights as to the Children on December 19, 2018 ("Petitions").² The Petitions alleged that the following statutory grounds existed to terminate Father's parental rights to the Children: (1) Father had abandoned the Children for a period of six months or more under section 211.447.5(1)³ ; (2) the Children had been abused or neglected pursuant to section 211.447.5(2); (3) the Children had been under the jurisdiction of the trial court for a period of at least a year and the conditions which led to the assumption of jurisdiction continue to exist with little likelihood that those conditions would be remedied so that the Children could be returned to Father in the foreseeable future pursuant to section 211.447.5(3); and (4) Father is unfit to be a party to the parent-child relationship pursuant to section 211.447.5(5)(a). The Petitions further asserted that it would be in the best interests of the Children to terminate Father's parental rights.

In May 2019, the trial court held a permanency review hearing in the abuse and neglect proceedings. During that hearing, Father orally requested that the permanency goal change from termination of parental rights and adoption to placement with a willing and fit relative pending Father's rehabilitation; that the trial court find that the Children's Division failed to make reasonable efforts in support of reunification with Father; and that the trial court find the Children's Division failed to make reasonable efforts to locate a paternal kinship or relative placement for the Children. Following testimony and other evidence, the trial court rejected all of Father's requests. In its findings, the trial court concluded that no evidence warranted changing the permanency goal to placement with a fit and willing relative pending Father's rehabilitation because, in the eighteen months the Children had been in the Children Division's custody, Father had not had contact with the Children despite the ability to do so via phone or video calls or via letters or cards. The trial court further found that there was no evidence adduced as to a parent-child relationship between Father and the Children, including a relationship prior to the Children's placement in protective custody.

A trial on was held on October 15, 2019, in the termination of parental rights proceedings to determine whether there were statutory grounds to terminate Father's parental rights and to determine whether termination of his parental rights would be in the Children's best interests. The Juvenile Officer submitted twenty-seven exhibits, and requested that the trial court take judicial notice of the trial court's records in the underlying abuse and neglect proceedings and in criminal proceedings involving Father. Father did not object to either the admission of the exhibits or to the requests for judicial notice.

The trial court also heard testimony from two Children's Division supervisors who worked on the Children's cases, and from Father. A Children's Division supervisor testified that Father did not have any in-person visitation with the Children during their placement in protective custody but acknowledged that the Children had phone contact with Father during calls with members of their paternal family. The Children's Division supervisors each testified that they had no knowledge of any financial support provided by Father while the Children were in protective custody. Father testified that he continued to live in a rehabilitation facility and that he was unable to care for himself fully. Father admitted that he did not know how long he would be in the rehabilitation facility but indicated that his condition had been improving. At the conclusion of the trial, Father's counsel indicated to the trial court that Father was not contesting the grounds for termination but instead was arguing that termination of his parental rights would not be in the Children's best interests. The trial court took the matter under advisement.

The trial court issued a judgment terminating Father's parental rights ("Judgment") on December 2, 2019.⁴ While the Judgment concluded that the Juvenile Officer failed to meet its burden to prove by clear and convincing evidence that Father had abandoned the Children pursuant to section 211.447.5(1), the Judgment concluded that the Juvenile Officer met its burden to prove by clear, cogent, and convincing evidence three other statutory bases for terminating Father's parental rights: (1) that the Children had been abused or neglected pursuant to section 211.447.5(2); (2) that the Children had been under the jurisdiction of the trial court for more than one year, that the conditions that led the assumption of jurisdiction still persisted, and that those conditions still existed with little likelihood that they would be remedied soon so that the Children could be returned to Father pursuant to section 211.447.5(3); and (3) that Father is unfit to be a party to the parent-child relationship pursuant to section 211.447.5(5)(a). The Judgment further concluded that terminating Father's parental rights was in the best interests of the Children.

Father appeals. Additional facts are discussed in the analysis portion of this Opinion as necessary.

Standard of Review

"Termination of parental rights is an exercise of awesome power, and therefore we review such cases closely." In Interest of A.R.B. , 586 S.W.3d 846, 856 (Mo. App. W.D. 2019) (quoting In Interest of G.M.G. , 525 S.W.3d 162, 164-65 (Mo. App. W.D. 2017) ). Termination of parental rights is appropriate when a statutory ground for termination is supported by clear, cogent, and convincing evidence and when evidence establishes that termination of parental rights is in the best interest of the child by a preponderance of the evidence. In Interest of J.A.F. , 570 S.W.3d 77, 82 (Mo. App. W.D. 2019). When, as here, the trial court has found more than one statutory basis for terminating parental rights, we need only find that one of the statutory bases for termination was supported by clear, cogent, and convincing evidence and that termination was in the best interests of the child to affirm the trial court's judgment. Id. at 83. Father's appeal only concerns whether a...