S--- G., In Interest of, 16090

• Decision Date: 26 October 1989
• Docket Number: No. 16090,16090
• Parties: In the Interest of S___ G. G___, et al.
• Court: Missouri Court of Appeals

Page 45

779 S.W.2d 45

In the Interest of S___ G. G___, et al.

No. 16090.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 26, 1989.

James L. Thomas, Waynesville, for appellant.

Wayne Gifford, Waynesville, for respondent deputy juvenile officer.

Ralph W. Muxlow II, Richland, for intervenors Rebecca and James J___.

CROW, Presiding Judge.

Mary G___ ("Mary") appeals from an order terminating her parental rights to S___ G. G___, a female born August 20, 1976; J___ G___, a female born May 8, 1979; M___ G___, a male born May 18, 1982; and T___ G___, a female born March 29, 1985. ¹ Termination was predicated on a finding that Mary had, for a period of more than six months prior to the filing of the petition for termination, abandoned the children as defined in § 211.447.2(1)(b), RSMo 1986, in that Mary, without good cause, left the children without any provision for parental support and without making arrangements to visit or communicate with them, although able to do so.

Mary also complains in this appeal that the trial court erred in allowing the foster parents of the two youngest children to remove them to Germany where the foster father had been assigned by military orders.

Inasmuch as one of Mary's contentions on appeal is that the evidence was insufficient to support the finding of abandonment, a comprehensive account of the evidence is necessary. The evidence was presented at a hearing November 2, 1988. Mary was represented by counsel at the hearing but she did not attend, as detailed infra.

The evidence revealed that on December 2, 1987, with Mary's consent, caseworkers of the Division of Family Services ("DFS") picked up the four children at a residence in Pulaski County where the children had been living with Mary and one Fred W___. Other caseworkers transported Mary to the "stress center" at Phelps County Regional Medical Center in Rolla.

The next day a deputy juvenile officer filed a petition in the juvenile division of the Circuit Court of Pulaski County praying the court to take jurisdiction of the children per § 211.031.1(1)(b), RSMo 1986, as the children were without proper care, custody or support. The petition alleged Mary had signed a consent to voluntarily place the children in foster care to protect them from a potentially dangerous situation. The petition continued: "[Mary] is, fleeing from a man who has emotionally and physically abused her. She is planning to admit herself into the Phelps County Stress Center to receive counseling and guidance."

A document bearing Mary's signature was filed with the court. The document stated, among other things, that Mary wanted to place the children in the care of the State, that she was unable to care for them at that time and believed it was in their best interest that they be placed in foster care, that she understood that placing them in foster care meant that the juvenile officer or caseworker must receive an order from a judge, that once the order was signed the children became wards of the court and were no longer in her legal custody, that in order to have the children returned to her at a later date she would cooperate with any written service agreement developed between her and DFS, and that she understood she might be asked to support the children while they were not in her care.

The day the petition was filed (December 3, 1987) the court entered an order placing the children in the custody of DFS, which in turn placed the two eldest children in the foster home of Donna C___ ("Donna") and her husband, and the two youngest children in the foster home of Rebecca J___ ("Rebecca") and her husband, a member of the United States Army.

On December 12, 1987, Donna and Rebecca took the four children to visit Mary at the hospital in Rolla. A day or two later Rebecca went to North Carolina, where her father was terminally ill, taking the two youngest children with her.

On December 24, 1987, Victoria Trump, a DFS caseworker, took the two eldest children to visit Mary at the hospital in Rolla. The next day (Christmas) Mary had a "pass" from the hospital. She went to Donna's home and visited the two eldest children "approximately one hour." The two youngest children were still in North Carolina with Rebecca.

Mary was discharged from the hospital December 29, 1987. Caseworker Trump brought Mary back to Pulaski County to pick up her belongings, then returned her to Rolla. Trump testified Mary stated she was going to either St. Louis or Springfield, Missouri. Trump added: "I gave her my business card, told her it was most important to keep in contact with me to let me know where she was...."

On December 31, 1987, Mary appeared at the Salvation Army shelter in Jefferson City and told Ann Ward of that agency that the Salvation Army in Rolla had referred her. Mary remained in the shelter until January 6, 1988, during which time she became acquainted with Alice MacNaughton, another resident. Ms. MacNaughton testified that on January 6 she took Mary to the bus station so Mary could go to Tennessee to get her "LPN" license. Ms. Ward's testimony confirmed that Mary left the shelter January 6 to go to Tennessee.

In February, 1988, a friend of Mary's in Rolla gave caseworker Trump a letter the friend had received from Mary. The letter was postmarked February 3 at Chattanooga, Tennessee, and bore no return address. The back of the envelope carried this message: "Will you please mail this to Vicki at Family Services." This was the first time Trump had heard from Mary since December 29.

Ms. MacNaughton testified that on February 5, 1988, Mary returned to Jefferson City from Tennessee and moved into an apartment occupied by MacNaughton and the latter's son. MacNaughton recalled Mary obtained employment a week and a half later at a restaurant; the job lasted "about three weeks." MacNaughton encouraged Mary to save her tips so she would have money for an application to transfer her LPN license to Missouri and "get her pictures taken."

According to MacNaughton, a week or so after Mary's restaurant employment ended Mary obtained a part-time job "doing some cleaning for a church." Mary held this job until she received a "temporary" LPN license. Mary then obtained employment at Still Hospital at a starting salary "a little over $6 an hour." MacNaughton recalled that about this time she, her son, and Mary moved into a "convenience apartment" on Madison Street in Jefferson City.

Caseworker Trump testified that on Sunday, March 13, 1988, Donna informed Trump by phone that Mary was "in town" asking to visit the two eldest children. Mary, at Donna's request, telephoned Trump. This was the first Trump had heard of Mary since the letter from Chattanooga. Trump quoted Mary as saying she was starting the "orientation program" at Still Hospital the next day. Trump told Mary that visits with the children had to be set up through Trump.

Donna allowed Mary to visit the two eldest children at Donna's home March 13. Donna testified she (Donna) helped Mary call Rebecca's home so Mary could talk to the two youngest children even though Mary "didn't want to."

Ms. MacNaughton testified that Mary quit at Still Hospital after approximately two weeks. MacNaughton quoted Mary as saying she wanted night shifts but the Hospital informed her she had to have a month of "orientation" on days before she could have nights. A few days later Mary obtained a waitress job at a motel restaurant, but quit after four nights for the stated reason she "was getting some sexual harassment."

MacNaughton recalled that "the first couple of days of April," 1988, Mary "moved in with a boyfriend," Don B___, who was residing in the basement of a house occupied by "a couple that he knew." Mary left her belongings in MacNaughton's apartment. In "the middle part of April," said MacNaughton, Mary got a job as a cook in a "retirement home" in Jefferson City.

On April 20, 1988, in Cole County, Mary signed a document wherein she waived her appearance at the adjudication hearing in the § 211.031 proceeding initiated by the deputy juvenile officer December 3, 1987. The document stated Mary agreed to the disposition recommended by that official.

Ms. MacNaughton testified that around 11:00 p.m., May 22, 1988, Mary asked MacNaughton to drive Mary to Waynesville the next day for the adjudication hearing. MacNaughton responded she was unable to do so.

On May 23, 1988, the trial court conducted the adjudication hearing. Mary was not there. At the conclusion of the hearing the trial court entered an order finding that placement of the children in their home would be contrary to their welfare, consequently they were to remain wards of the court in the care and custody of DFS in foster care until further order.

Caseworker Trump testified she met Mary in Jefferson City May 23, 1988, to ask Mary "her intentions for her children." Trump informed Mary the State was going to seek termination of her parental rights. At Mary's request a visit was scheduled by Trump for Mary with all four children May 25. The one-hour visit took place as scheduled. This was the first time Mary had seen the two youngest children since December 12, 1987.

A document signed by Mary and Trump May 25, 1988, established a visiting schedule for June. One visit was scheduled each week, on Tuesday from 4:00 to 5:00 p.m., at the Pulaski County office of DFS.

Ms. MacNaughton testified she vacated the apartment on Madison Street in Jefferson City "the first of June," 1988, and had the utilities cut off, as they were all in her name. At that time, according to MacNaughton, Mary was still living with her boyfriend. MacNaughton recounted that Mary asked MacNaughton not to give up the apartment, as she (Mary) and her boyfriend wanted to move into it. MacNaughton added: "And so that is what they did. They ... took over the apartment." Asked whether Mary ever contributed anything to the rent or utilities while she lived with MacNaughton,...