R.H.S., In Interest of

• Decision Date: 18 August 1987
• Docket Number: No. WD,WD
• Citation: 737 S.W.2d 227
• Parties: In the Interest of R.H.S., and J.L.S., Juveniles. Thomas D. CARVER, Juvenile Officer, Respondent, v. R.E.S., Natural Father, Appellant. 38851.
• Court: Missouri Court of Appeals

Page 227

737 S.W.2d 227

In the Interest of R.H.S., and J.L.S., Juveniles.

Thomas D. CARVER, Juvenile Officer, Respondent, v. R.E.S., Natural Father, Appellant.

No. WD 38851.

Missouri Court of Appeals,

Western District.

Aug. 18, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 29, 1987.

Mary Murphy, Kansas City, for appellant.

Audrey J. Bimby, Kansas City, for respondent.

Before CLARK, P.J., and NUGENT and LOWENSTEIN, JJ.

NUGENT, Judge.

Defendant R.E.S. seeks reversal of the trial court's judgment terminating his parental rights as to his young sons, R.H.S. and J.L.S. Defendant claims that § 211.447.2(3), ¹ the recent enactment setting out the grounds for termination of parental rights, is unconstitutionally vague and, as applied in this case, violated his right to due process guaranteed by the Fourteenth Amendment to the United States Constitution. In addition to those constitutional challenges, defendant claims that the juvenile officer failed to establish a statutory ground for termination by clear, convincing and cogent evidence and that the trial court failed to set out in its order certain findings required by § 211.477.5 and § 211.447.3.

We find that the defendant has not preserved the constitutional questions for appellate review and that his other arguments do not compel reversal, and we affirm the judgment of the trial court.

In 1980, the defendant married a woman who had two daughters born out of wedlock. He never adopted those children. Two sons were born of the marriage, and they are the subjects of this appeal: R.H.S., born December 3, 1980, and J.L.S., born May 28, 1982.

On December 1, 1982, when the couple and all four children were living together in Kansas City, the defendant's wife called the Missouri Division of Family Services (DFS) hotline. The juvenile officer promptly filed petitions under § 211.031, R.S.Mo.1978, alleging that the mother could not protect the boys as the father "is physically abusive to the mother and [her two daughters]," and "the mother fears future physical abuse." As a result of a detention hearing on December 3, 1982, DFS assumed custody of all four children for placement in foster care.

At a hearing in February, 1983, both parents, through their appointed counsel, admitted the allegations of the petitions filed on behalf of R.H.S. and J.L.S. In its order of February 8, 1983, the juvenile court granted sole custody of the boys to their mother under the supervision of DFS, although the parents lived together as husband and wife. The court also ordered that both parents continue counseling they had begun with a psychologist, not to be terminated without the court's consent, and that both parents attend "parenting" classes.

On about March 7, 1983, the parents took the children from Missouri without informing DFS and without the court's consent. Because of the "parents' failure to cooperate," the juvenile court issued an order to take the children into judicial custody.

On October 5, 1983, Commissioner Kierst modified his order of February 8 thereby committing R.H.S. and J.L.S. to the custody of DFS for placement in foster care, terminating his original order, and ordering that a treatment plan be submitted for court approval. The defendant appeared in person at the October 5, 1983, hearing without an attorney present. On October 27, 1983, he signed a treatment plan designed by his social worker. That plan was never approved by the juvenile court. Later, the parties signed a second plan developed by Glen Schowengert, another social worker, and Commissioner Kierst approved it on May 15, 1984.

In August, 1985, Commissioner Kierst ordered the juvenile officer to pursue a termination of defendant's parental rights. At the September, 1986, hearing, Mr. Schowengert, Leslie Brown and Terry Johnson--three social workers who had been assigned to the defendant's case at various times--collectively testified that the approved treatment plan addressed six areas of concern: (1) that defendant maintain a stable residence; (2) that defendant maintain stable employment and send child support when financially able to do so; (3) that defendant "attend counseling" and "get his anger under control;" (4) that defendant visit the children regularly and send them letters and gifts; (5) that defendant undergo a chemical dependency screening test; and (6) that defendant resolve his "legal difficulties" and "issues." At the time of the hearing, the defendant was serving a ten-year sentence in an Alabama prison. Two of the social workers felt that the fact that the defendant would not have an opportunity for parole until at least January of 1989 created another obstacle to reuniting the defendant and his sons.

The three social workers testified about the potentially harmful conditions--most of which the treatment plan identified--that continued to impede the defendant's reunification with his sons. Mr. Schowengert, who was assigned to the defendant's case in 1983 and 1984, had referred the defendant to a vocational rehabilitation program to help him obtain stable employment. After about a month, however, the program expelled the defendant for "verbal abuse and explosiveness on the jobsite." The defendant attended counseling for a three-month period before he was extradited to Florida to face criminal charges for check forgery. The defendant called the social worker from Florida but never gave a forwarding address. He told Mr. Schowengert that he was working for a construction company but never disclosed his earnings. He sent no child support during that period or at any time. ² Upon his return to Missouri in March, defendant telephoned Mr. Schowengert sporadically. When the social worker repeatedly referred him to the DFS "parenting" classes, the defendant would become hostile and refuse. At one point, he told Mr. Schowengert that he was attending "parenting" classes at the Salvation Army. However, when Mr. Schowengert called to verify, the Salvation Army explained that they did not offer such classes.

From December, 1983, to February, 1984, the defendant occupied three residences, then his whereabouts became unknown to DFS. When he returned to Missouri, he would not reveal his address. Eventually he went back to Florida and later to Alabama, again leaving no address.

DFS was never able to substantiate the claims that the defendant abused alcohol or drugs and that was the reason Mr. Schowengert requested a screening test. The defendant, however, repeatedly refused to be screened for chemical dependencies.

Nor had DFS been able to substantiate reports that defendant had physically abused his children or that his alleged "anger control problem" had ever transferred to a problem with his children. However, Mr. Schowengert's testimony reveals many incidents where the defendant became angry, cursed and yelled when the social worker attempted to refer him to various counseling programs and also reveals that the defendant harassed the boys' foster parents.

Mr. Schowengert acknowledged the existence of a bond between the defendant and R.H.S., his elder son, but did not recall that R.H.S. ever cried or became upset after a visit from his father. He noted that the defendant was always adamant in stating his desire to regain custody of the boys.

In November, 1984, Leslie Brown became the defendant's social service worker. She testified that during that year, she arranged only one visit between the defendant and his sons. For the visit to occur, the defendant was to surrender himself to his probation officer. He never called back to confirm the arrangements for the visit. Ms. Brown could not schedule other visits because she had no way to contact the defendant.

When Ms. Brown first took the case, the defendant maintained sporadic telephone contact with the boys, calling them at their foster homes. DFS discontinued that arrangement at the foster parents' request because the defendant made threats toward them and promised the children toys and gifts that, apparently, he never sent. Once, Ms. Brown had to change the foster placement of J.L.S. and his half-sister because of the defendant's threats to the foster parents.

In February or March of 1985, the defendant informed Ms. Brown that he was going to Alabama. Once there, he contacted a social service worker in Anniston, who in turn contacted Ms. Brown. Ms. Brown sent a new treatment plan to the defendant for his signature and a copy to the case worker. The defendant refused to sign the new plan. Ms. Brown learned from the social service worker that the defendant had been arrested in Alabama. She next heard from the defendant in August, 1985, when he was in an Alabama prison.

During her year as case worker, Ms. Brown never saw the defendant and his sons interact. However, she was aware that R.H.S. was very fond of his father and spoke of him often. She acknowledged that the defendant occasionally sent cards and letters to the children. At one point, she sought, but did not obtain, permission to refrain from reading certain letters to them because the letters "made promises to the children that were not logical and that they would be together soon and this type of thing."

At that point, the court admitted the juvenile officer's Exhibits 1 and 2 into evidence, a certified copy of the defendant's conviction in Missouri of stealing a motor vehicle and a certified document from the Alabama Department of Corrections confirming defendant's sentence of imprisonment for ten years for theft and receiving stolen property.

Terry Johnson, the current social worker who took the defendant's case in November, 1985, testified that the defendant had been in prison in Alabama the entire time she had the case except for one week in August, 1985, when she did not know where he was. Ms. Johnson stated that the defendant had not visited the children since 1984, and although he maintained contact by telephone and letters while s...