M.R.S. v. Greene Cnty. Juvenile Office (In re Interest of J.P.B.)

Decision Date05 January 2017
Docket NumberNo. SC 95602,SC 95602
Citation509 S.W.3d 84
Parties IN the INTEREST OF J.P.B. M.R.S., Appellant, v. Greene County Juvenile Office, Respondent.
CourtMissouri Supreme Court

The father was represented by Kristoffer R. Barefield of the Law Offices of Kristoffer Barefield LLC in Springfield, (417) 720–1000;

and the juvenile office was represented by R. Paul Shackelford of the Greene County juvenile office in Springfield, (417) 868–4008.

Zel M. Fischer, Judge

M.R.S. ("Father") appeals from the circuit court's judgment terminating his parental rights to his child, J.P.B. ("Child"). The circuit court found that Father neglected Child, failed to rectify conditions that led to Child coming into the care of the Children's Division, was unfit to be a party to the parent-child relationship, and that termination was in the best interest of Child. The circuit court's judgment is affirmed.

I. Factual and Procedural History

Father has been incarcerated since July 2013. He pleaded guilty to driving while intoxicated (as a chronic offender), second-degree attempted assault of a law enforcement officer, resisting arrest, and two counts of third-degree assault. He has a conditional release date of November 14, 2018, and a maximum release date of July 14, 2021. Child was born in February 2014 and came to the attention of the Children's Division shortly thereafter due to a report that Child's mother attempted to sell Child. The Children's Division took temporary legal custody and placed Child in a foster home. With respect to Father, the circuit court held an adjudication hearing, declared Father to be the biological father based on paternity testing, found Child could not be returned home due to Father's incarceration, criminal history, and substance abuse issues, and, on November 12, 2014, ordered an incarcerated parent treatment plan.

The juvenile officer filed a petition to terminate the parental rights of both of Child's natural parents on July 2, 2015. Father subsequently filed a motion to place Child with Child's paternal grandmother and requested that he be permitted visitation in the prison.1 He also filed a writ of habeas corpus ad testificandum, requesting that he be allowed to appear in person at the trial concerning the termination of his parental rights. The circuit court denied Father's request to appear in person, but allowed him to participate via videoconference. The day before trial, Father filed a motion for continuance on the basis that the circuit court had yet to rule on his motion for placement with the grandmother. The next day, the circuit court overruled Father's motion for continuance and motion for placement of Child with the grandmother. After being given a short recess to review the circuit court's findings and conclusions on the motion for placement, Father filed an application for change of judge on the basis that the denial of the motion for placement indicated the judge had prejudged the matter of termination. The circuit court denied this application.

At trial, the Children's Division case manager for Child testified that each month Father sent $2 for support, as well as two or three letters, but that Father had never met Child in person and that Child had no emotional ties to Father.2 She testified that Father had told her he attended weekly meetings to address his substance abuse, but provided no written confirmation of such. She also testified that she could not think of any additional services that could be offered to change Father's circumstances to a point of having Child returned to him within an ascertainable period of time, or any services that could create a bond between Father and Child. The case manager further testified that Child was doing well in the foster home and called the foster parents "mom" and "dad." Father testified that he wanted Child placed with Child's paternal grandmother. Both the case manager and Child's guardian ad litem recommended that Father's parental rights be terminated.

Following trial, the circuit court entered a judgment terminating both parents' parental rights in accordance with § 211.447.6.3 The circuit court found that termination was in the best interest of Child and, with respect to Father, found three separate grounds for termination: that Father neglected Child pursuant to § 211.447.5(2); that Father failed to rectify conditions that led to Child coming into care pursuant to § 211.447.5(3); and that Father was unfit to be a party to the parent-child relationship pursuant to § 211.447.5(6)(a). On appeal, Father challenges the constitutional validity of § 211.447.5(6)(a), the circuit court's finding on each ground for termination, the circuit court's finding that termination was in the best interest of Child, and the circuit court's rulings on his procedural requests. Because Father's appeal involves the constitutional validity of a Missouri statute, this Court has exclusive appellate jurisdiction pursuant to article 5, § 3 of the Missouri Constitution.

II. Father's Challenge to the Constitutional Validity of § 211.447.5(6)(a)

Father argues § 211.447.5(6)(a) is unconstitutionally vague as applied to his case because the circuit court's determination that he was unfit to be a party to the parent-child relationship is "inextricably tied to his incarceration" and § 211.447.7(6) "explicitly provides that incarceration alone shall not be grounds for termination of parental rights." Father argues that, to the extent § 211.447.5(6)(a) "can be read to equate incarceration with parental unfitness, it is unconstitutionally vague and thus, void."

"The standard for determining whether a statute is void for vagueness is whether the terms or words used are of common usage and are understandable by persons of ordinary intelligence." Bd. of Educ. of City of St. Louis v. State , 47 S.W.3d 366, 369 (Mo. banc 2001) (internal quotations omitted). Section 211.447.7 states:

When considering whether to terminate the parent-child relationship pursuant to subsection 2 or 4 of this section or subdivision (1), (2), (3) or (4) of subsection 5 of this section , the court shall evaluate and make findings on the following factors, when appropriate and applicable to the case ... (6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights[.]

(emphasis added). By the statute's plain terms, subdivision (6) of § 211.447.7 applies only to termination that is pursuant to certain subsections or subdivisions. Section 211.447.5(6)(a) is not included. Even if the circuit court's finding pursuant to § 211.447.5(6)(a) were "inextricably tied" to Father's incarceration, there is nothing vague about the lack of applicability of § 211.447.7(6) to termination that is pursuant to § 211.447.5(6)(a). Father's challenge on vagueness is wholly without merit.

III. Father's Challenges to the Circuit Court's Findings

For each of the three grounds for termination found by the circuit court, Father argues the circuit court's finding is not supported by substantial evidence and is against the weight of the evidence.4 In reviewing termination of parental rights cases, like all types of bench-tried cases, this Court is mindful "that circuit courts are better positioned to determine witness credibility and weigh evidence in the context of the whole record than an appellate court." J.A.R. v. D.G.R. , 426 S.W.3d 624, 626 (Mo. banc 2014). As previously explained by this Court:

This Court reviews whether clear, cogent, and convincing evidence was presented to support a statutory ground for terminating parental rights under Murphy v. Carron , 536 S.W.2d 30 (Mo. banc 1976). Therefore, the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. The judgment will be reversed only if we are left with a firm belief that the order is wrong.
Conflicting evidence will be reviewed in the light most favorable to the trial court's judgment. Appellate courts will defer to the trial court's credibility assessments. When the evidence poses two reasonable but different inferences, this Court is obligated to defer to the trial court's assessment of the evidence.
After this Court determines that one or more statutory ground has been proven by clear, convincing, and cogent evidence, this Court must ask whether termination of parental rights was in the best interest of the child. At the trial level, the standard of proof for this best interest inquiry is a preponderance of the evidence; on appeal, the standard of review is abuse of discretion.

Id. (quoting In re Adoption of C.M.B.R. , 332 S.W.3d 793, 815–16 (Mo. banc 2011) ). This Court has "laid to rest any argument that the ‘clear, cogent, and convincing’ burden of proof requires this Court to consider any contrary evidence when reviewing whether the judgment is supported by substantial evidence." Id. at 626 n.4.

"In reviewing questions of fact, the reviewing court is to recognize that the circuit court is free to disbelieve any, all, or none of the evidence, and it is not the reviewing appellate court's role to re-evaluate the evidence through its own perspective." Id. at 627. "The trial court receives deference on factual issues because it is in a better position not only to judge the credibility of the witnesses and the persons directly, but also their sincerity and character and other trial intangibles which may not be completely revealed by the record." Id. (internal quotations omitted).

A. Failure to Rectify Harmful Conditions

A parent's failure to rectify the conditions that led to a child coming into care is a ground for termination pursuant to § 211.447.5(3) when the following three elements are present:...

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