Juvenile Officer v. T.B. (In re Interest of A.R.B.)

Decision Date03 September 2019
Docket NumberWD 82162
Citation586 S.W.3d 846
Parties In the INTEREST OF: A.R.B.; Juvenile Officer, Respondent, E.R. and M.R., Respondents, v. T.B., Appellant.
CourtMissouri Court of Appeals

Lori A. Fluegel and Lisa Robinett, Kansas City, MO, for respondent Juvenile Officer.

Ryan F. Kaiser, Kansas City, MO, for respondents E.R. and M.R.

Reginald L. Stockman, North Kansas City, MO, for appellant.

Before Division One: Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and Alok Ahuja, Judge

Cynthia L. Martin, Judge

T.B. ("Mother") appeals from the trial court's judgment terminating her parental rights to A.R.B. ("Child"). Mother argues on appeal that the trial court's judgment constituted error in seven respects: (1) the commissioner who presided over the termination of parental rights trial and made findings and recommendations to the trial court was obligated to recuse himself pursuant to Rule 121.01;1 (2) Mother was never served with a summons for the petition filed on July 16, 2015; (3) Mother was not properly served with the first amended petition filed on August 19, 2016, because the officer making the return did not comply with Rule 54.20(b)(1); (4) in the underlying juvenile proceedings, Mother was not given notice of her right to counsel, Mother was not provided an application for appointment of an attorney, and Mother went unrepresented for over two and a half years; (5) Mother was not given notice of her right to counsel and was not appointed counsel for nearly six months after the petition to terminate parental rights was filed, and once Mother was appointed counsel, she was denied effective assistance of counsel; (6) the trial court improperly considered Mother's "mental condition" as a basis for terminating parental rights; and (7) the guardian ad litem failed to discharge her duties to act diligently in the best interests of the child and to undertake a diligent independent investigation. We affirm the trial court's judgment, but remand this matter to the trial court for consideration of Mother's pending motion for attorney's fees in excess of the regulatory maximum.

Factual and Procedural History2

Mother is the biological mother of the Child, born on April 29, 2011. On June 27, 2013, the Juvenile Officer of Jackson County filed a petition ("abuse and neglect petition") in case number 1316-JU000703 ("underlying juvenile matter") alleging that the Child was without the proper care, custody, or support necessary for his well-being because Mother exhibited a pattern of neglect toward the Child. In particular, the abuse and neglect petition alleged that, in or around January 2013, Mother left the Child in the care of a friend without providing the friend authority to seek medical treatment for the Child despite knowing that the Child required special medical treatment due to a heart condition. The abuse and neglect petition further alleged that Mother had not provided any emotional or financial support for the Child since January 2013 and had failed to have any contact with the Child since April 2013. The abuse and neglect petition noted Mother's criminal record and the fact that Mother had two other children, one of whom was in the custody of E.R. as a result of a paternity action, and one of whom was in the custody of E.R. as a result of a guardianship action.3 At the time the abuse and neglect petition in the underlying juvenile matter was filed, William R. Jackson was the Juvenile Officer of Jackson County ("Juvenile Officer"). An attorney for the Juvenile Officer signed the petition.

The same day the abuse and neglect petition was filed, the trial court entered an order for temporary protective custody, placing the Child in the temporary protective custody and in the temporary legal custody of the Children's Division. The trial court held a protective custody hearing on July 2, 2013. Following the hearing, the trial court ordered that the Child remain in protective custody and in the temporary legal custody of the Children's Division, and ordered that the Children's Division investigate E.R. as a possible kinship placement for the Child. The trial court further ordered that E.R. have visitation with the Child.

Mother was served with a summons for the abuse and neglect petition on July 11, 2013, while she was incarcerated in the Henry County jail. The first hearing on the abuse and neglect petition in the underlying juvenile matter was held on July 24, 2013. Mother did not appear. The trial court set an adjudication hearing in the underlying juvenile matter for August 20, 2013, and reiterated its order that E.R. have visitation with the Child.

The adjudication hearing was held as scheduled on August 20, 2013. Mother did not appear, as she was still incarcerated in the Henry County jail. Commissioner Geoffrey E. Allen ("Commissioner Allen") presided over the adjudication hearing, during which evidence was received. Commissioner Allen entered findings and recommendations sustaining the allegations in the abuse and neglect petition and finding that the Child was in need of care and treatment. The findings and recommendations ordered the Child to be committed to the custody of the Children's Division for placement. The findings and recommendations further ordered Mother to submit to a psychological evaluation; that Mother complete a substance abuse assessment; that the Children Division place the Child with E.R. if justified by a home study; that Mother have closely supervised visits with the Child if the guardian ad litem agrees; that E.R. have supervised and unsupervised visits with the Child; and that the Children's Division provide a parent aid. The trial court adopted the findings and recommendations on August 22, 2013.

Following a case review hearing in December 2013, Commissioner Allen ordered that the Children's Division place the Child in the home of E.R. and M.R. (collectively "Prospective Adoptive Parents") in Sturgeon, Missouri. The trial court adopted these findings and recommendations on December 20, 2013. The Child has remained in the Prospective Adoptive Parents' home since that time.

On April 7, 2014, another case review hearing took place. Commissioner Allen entered findings and recommendations that ordered the Child to remain in the custody of the Children's Division and in the placement of the home of the Prospective Adoptive Parents, and that ordered adoption planning to commence. The April 7, 2014 findings and recommendations scheduled a permanency hearing for July 29, 2014. The trial court adopted these findings and recommendations on April 10, 2014.

The permanency hearing was held on July 29, 2014, and was presided over by Commissioner Allen. The findings and recommendations continued the court's previous orders and stated that the goal for the Child should be adoption. The trial court adopted these findings and recommendations on August 1, 2014.

Additional case review hearings were held in November 2014, April 2015, and June 2015, and in each of these instances, the trial court adopted Commissioner Allen's findings and recommendations to continue all previous orders, including the order that adoption remained the goal. The June 2015 case review hearing was the final hearing over which Commissioner Allen presided in the underlying juvenile matter.

On July 16, 2015, the Prospective Adoptive Parents filed a petition to adopt the Child ("adoption petition") in case number 1516-FC06455 ("termination of parental rights action"). The adoption petition alleged that Mother was the Child's natural mother and that the Child's natural father was unknown. The adoption petition further alleged that Mother "willfully abandoned, and willfully, substantially, and continuously neglected to provide the [C]hild with the necessary care and protection for a period of at least six months immediately prior to the filing of the Petition for Adoption" so that "her consent to adoption is not required." The adoption petition made the same allegations about the Child's unknown natural father. The Prospective Adoptive Parents served the Child's unknown natural father by publication but otherwise took no other action in the termination of parental rights action.

While the termination of parental rights action was initially assigned to Commissioner Allen, Commissioner William R. Jackson ("Commissioner Jackson"), former Juvenile Officer of Jackson County, was appointed to the case on September 1, 2015. Commissioner Jackson also replaced Commissioner Allen in the underlying juvenile matter. On October 27, 2015, at a case review hearing for the underlying juvenile matter, Commissioner Jackson asked the parties present (the attorney for the Juvenile Officer and the guardian ad litem) whether either party wanted Commissioner Jackson to recuse himself based on his prior role as the Juvenile Officer of Jackson County. Neither the attorney for the Juvenile Officer nor the guardian ad litem requested recusal. Mother was not present at the hearing.

On November 5, 2015, a Children's Division caseworker met with Mother while Mother was incarcerated in the Chillicothe Correctional Center to discuss adoption of the Child. The caseworker testified that the purpose of her visit was to introduce herself, to advise Mother about steps she could be taking if she wished to retain parental rights, and to complete the necessary paperwork if Mother wanted to consent to the termination of her parental rights. Mother conveyed to the caseworker that she wanted to request an attorney, and on December 29, 2015, the caseworker forwarded those documents to Mother.

On January 6, 2016, Mother submitted her request for an attorney to the trial court in the underlying juvenile matter. The trial court appointed counsel to represent Mother in both the underlying juvenile matter and in the termination of parental rights action on January 8, 2016. In ...

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