M.J.H. v. Greene Cnty. Juvenile Office

• Court: Missouri Court of Appeals
• Writing for the Court: WILLIAM W. FRANCIS
• Citation: M.J.H. v. Greene Cnty. Juvenile Office, 398 S.W.3d 550 (Mo. App. 2013)
• Decision Date: 28 May 2013
• Docket Number: SD 32354.,Nos. SD 32353,s. SD 32353
• Parties: In the Interest of M.J.H. and L.M.J., Minors, M.H., Natural Father, Appellant, v. Greene County Juvenile Office, Respondent.

398 S.W.3d 550

In the Interest of M.J.H. and L.M.J., Minors,M.H., Natural Father, Appellant,

v.Greene County Juvenile Office, Respondent.

Nos. SD 32353, SD 32354.

Missouri Court of Appeals,

Southern District,

Division One.

March 28, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 9, 2013.

Application for Transfer Denied May 28, 2013.

James R. Sharp, of Springfield, MO, for Appellant.

Brittany O'Brien, of Springfield, MO, for Respondent.

WILLIAM W. FRANCIS, JR., J.

M.H. (“Father”) appeals the respective judgments terminating his parental rights to his minor children, M.J.H. and L.M.J. (“the Children”). ¹ Finding no merit in his three points on appeal, we affirm the judgment of the Juvenile Division of the Circuit Court of Greene County (the “trial court”).²

Factual and Procedural Background

“In reviewing a judgment terminating parental rights, this Court consider[s] the facts and reasonable inferences derived therefrom in a light most favorable to the judgment.” In re C.A.M., 282 S.W.3d 398, 401 (Mo.App. S.D.2009) (internal quotation and citation omitted). Viewed in that context, the following information is pertinent to this appeal.

The record reveals the Children have been in protective custody since May 3, 2010. M.H. is the natural father of M.J.H., born June 7, 2008, and L.M.J., born May 2, 2010.³ Tara Becker, an investigator with the Children's Division of the Missouri Department of Social Services, began an investigation regarding the Children after the birth of L.M.J. when Mother tested positive for marijuana, benzodiazepine, cocaine and alcohol at the hospital. A determination was made by Ms. Becker that the Children needed to be in protective custody because of Mother's drug usage, her untreated mental health needs, and Mother's reports that she did not allow the Children to have unsupervised contact with Father due to his alcohol abuse.

On or about May 4, 2010, a “Petition” was filed with the trial court by a Deputy Juvenile Officer (“Juvenile Officer”) with the Greene County Juvenile Office (“Juvenile Office”), on behalf of each child, alleging the Children were in “need of the care and treatment of [the] [c]ourt,” pursuant to section 211.031.1.⁴

On June 16, 2010, an adjudication hearing was held in which the trial court found that the Children came under the court's jurisdiction, the allegations in the petitions were true, and the Children were in need of the care, protection and services of the court.

Alisa Griffiths (“Griffiths”), a caseworker with Children's Foundation, was assigned as the caseworker for Mother, Father and the Children, when the Children were taken into care. When Griffiths first became involved in the case, she was not provided any information as to the Children's father other than his name. Father was then located and on May 4, 2010, he was made aware the Children had been taken into protective custody. He was later served with the petitions filed by the Juvenile Officer.

When Griffiths began working on the case, Father was not incarcerated. He became incarcerated approximately two weeks after the children came into care. The only opportunity Griffiths had to visit with Father before he was incarcerated was at the 72–hour meeting. Griffiths was unable to set up visits between Father and the Children because he remained incarcerated for the remainder of the case up to and through the time of trial.

On June 9, 2010, Griffiths prepared an “Incarcerated Parent Treatment Plan” for Father, which was approved by the trial court on June 16, 2010. The treatment plan was structured to work toward the goal of reunification as evidenced by “Goal 1” of the treatment plan which stated: “[Father] will maintain an ongoing relationship with [the] [C]hildren[.]”

On June 21, 2011, more than a year after the Children came into care, a “PETITION TO TERMINATE PARENTAL RIGHTS” was filed with the trial court, for each child. The trial, as to both Children, was held on August 14, 2012. Griffiths and Father were the only witnesses to testify.

At the outset of the hearing, the trial court took judicial notice of the abuse and neglect and termination files, along with several criminal cases involving father, including the conviction for which Father was in custody. The trial court also receivedin evidence the paternity tests showing that Father was the biological father of the Children.

In addition to the testimony outlined above, Griffith also testified as to Father's tasks under the treatment plan. Griffiths testified Father kept in regular contact with her sending letters every couple of months; had phone calls with M.J.H., which were frequent; and sent letters every eight weeks or so and pictures to the Children. She testified that other than the cards and pictures sent by Father, neither Father, nor his family, had provided any gifts for the Children. Father also had not provided any financial support for the Children. Griffiths testified she was unable to refer services to Father due to his incarceration, but Father was able to participate in some programs once he was transferred to the Department of Corrections (“DOC”).

Griffiths testified that early in the case, Father gave her his mother's name (“J.H.”), and requested that an “ICPC” ⁵ home study be done so that placement with J.H. could be considered for the Children. J.H. resided in Memphis, Tennessee, and had never met either of the Children. The ICPC was completed and approved. The family support team felt it was important for J.H. to come to Springfield and meet the Children, as well as meet with L.M.J.'s doctors in light of his special needs ⁶ to make sure J.H. felt she could care for L.M.J. However, J.H. was unable to travel to Springfield due to financial reasons. J.H. neither came to visit the Children, nor provided any cards, letters or pictures to the Children.⁷ The decision was made not to place the Children with J.H. because J.H. made no effort to contact the Children or meet with L.M.J.'s doctors regarding his necessary care and treatment.

Griffiths testified the Children did not reside together. L.M.J. was placed in a home that was able to meet his medical needs, and M.J.H. was residing with his maternal great-grandmother and two half siblings. Despite being in separate placements, M.J.H. and L.M.J. continued to have contact with each other throughout the case. Griffiths testified there was a bond between M.J.H. and his two siblings, and it would be in his best interest to remain in a placement with them. Griffiths testified she saw both the Children every two weeks and neither one ever brought up the subject of Father during those visits.

Griffiths did not feel there were any additional services that could be provided to Father to enable reunification between him and the Children, and it was her recommendation that parental rights be terminated, the Children continue in their current placements, and they be eligible for adoption.

Father testified on his own behalf. Father testified that at least a year and a half prior to his incarceration and prior to the Children coming into care, M.J.H. was living with his maternal great-grandmother. Although M.J.H. was not living with him, Father testified he “car[ed]” for M.J.H. by visiting him every day. Father testified that at the time the Children came into care, he was out on bond waiting disposition of a charge for manufacturing a controlled substance in Greene County. Approximately two weeks after the Children came into care, Father committed and was charged with robbery in Newton County. Father was ultimately convicted of the charge related to the robbery and was sentenced to 12 years in the DOC.⁸ Father then entered an Alford⁹ plea in Greene County on the charge of manufacturing a controlled substance and was sentenced to 8 years, to run concurrent with the 12–year sentence. At the time of trial, Father was serving the concurrent sentences of 8 and 12 years on the convictions from Greene and Newton County, with two years' credit for time served. Father had appealed the Newton County conviction.

As to his release date, Father testified his understanding was that as a part of his Alford plea, he was to serve only 30 percent of his 8–year sentence and since he had been credited two years for time served, he believed he had met the requirements of that sentence and then, if his “appeal is reversed for the 12 years,” he would “have immediate release.” The DOC records indicated Father's earliest release date was May 21, 2018. Father testified he was “pretty sure [he would] be out before then.” Father testified that he expected to come before the parole board in November 2013, but he had “heard of occasions when the Parole Board push[ed] up your date if [you were] not in any trouble” and he had “zero percent.”

At the time of trial, Father's appeal on the Newton County conviction was still pending and he expected to “hear something by the end of the year.” ¹⁰ Also pending at the time of trial, was a federal lawsuit Father filed alleging civil rights violations and his treatment while in the Newton County Jail.

Father testified he had been participating in multiple programs while incarcerated, including studying for his “GED” and attending Alcoholics Anonymous and Narcotics Anonymous meetings. Father testified he frequently talked to M.J.H. on the phone,¹¹ sent cards and pictures he had drawn to the Children, and had sent some movies to M.J.H.

Father was not ordered to pay child support. Father received $7.50 a month from the DOC, but only received $6.00 because $1.50 was paid towards the filing fee on a lawsuit he had pending in federal court alleging civil rights violations against the Newton County Jail. Father had not paid any of the remaining $6.00 per month towards child support for the Children. He had not provided any financial support for the Children, nor had he asked his family to do so. At the time of trial, Father admitted his inability...