Juvenile Law"

Editor:
Shawn R. McCarver, Esquire

Where Chapter 211 termination of parental rights (TPR) was combined with Chapter 453 adoption, all of the requirements of Chapter 211 (not just the 211 grounds) must be strictly followed or TPR judgment must be reversed.  Where alleged errors were not preserved for review, court undertook plain error review, and finds that failure to comply with investigative and reporting requirements of Chapters 211 and 453 is manifestly unjust requiring reversal. Remand is required because petitioners made a submissible case on abandonment.  In re Adoption of C.M.B.R., No. 91141 (Mo. Banc January 25, 2011), Breckenridge, J.
Mother, a citizen of Guatemala, did not receive prenatal care, and her living conditions were poor.  Child was born in October 2006.  Mother did not obtain a birth certificate for the child.  Homeland Security conducted a raid on a poultry processing plant where mother was employed.  Mother was arrested.  The child was left with mother's brother, who placed the child with mother's sister, who then placed the child with the Velascos, first for babysitting, and the part-time babysitting arrangement became virtually full-time care.  The Velascos then placed the child with adoptive parents in October 2007.  Two days later, when the child was 11 months old, adoptive parents filed a three count petition seeking transfer of custody, termination of parental rights and adoption. 
Mother pleaded guilty to certain offenses, received a two year sentence and was ordered deported.  On October 16, 2007, mother was served with the adoption petition.  Two days later, the court held a hearing after giving notice to adoptive parents and the guardian ad litem (GAL).  The court transferred custody to adoptive parents.  Ten days later, mother sent adoptive parents' attorney a letter in both English and Spanish stating she did not want the child adopted and that she wanted the child placed in foster care.  Mother also requested visitation.
In December 2007, the court appointed counsel to represent mother, but service of the notice to mother at the county jail was refused.  Mother had been transferred to a federal penitentiary in West Virginia.  Adoptive parents authorized their attorney to find an attorney for mother who was fluent in Spanish.  An attorney was found, adoptive parents agreed to pay his fee, and the attorney was appointed for mother.  The attorney sent a letter to mother and spoke to her by telephone. 
At trial on the petition, mother was not present, but her attorney was present.  On October 9, 2008, the trial court rendered its judgment finding the adoption could be granted without mother's consent because of abandonment.  The judgment also terminated parental rights for abandonment under Section 211.447.2(2)(b). Mother appeals, raising several grounds, including a failure to comply with certain reporting requirements, failure to properly place the child under the adoption statutes and several failures of due process. 
The Supreme Court discussed the relationship between Chapters 453 (adoption) and 211 (juvenile code termination of parental rights).  Under a Chapter 453 adoption, the mandates of Chapter 211 are irrelevant, unless cross-referenced by Chapter 453. However, if petitioners plead termination of parental rights, petitioners invoke not only the grounds, but all procedural requirements of Chapter 211. 
Mother's Chapter 453 claims are a failure to place the child through an intermediary (the Velascos do not qualify under the statutes), failure to obtain the report mandated by 453.026, failure to comply with 453.110 related to transfer of custody and failure to give five days' notice prior to transfer of custody under Rule 44.01(d). 
These alleged failures do not make the judgment void, as alleged by mother, but render the proceedings defective.  Mother is required to timely raise the allegations of error, and she did not.  Thus, the court conducts only plain error review, which requires that the errors result in a "manifest injustice." 
Mother failed to meet her burden.  The child urgently needed a transfer of custody, the court reviewed a report as to adoptive parents' suitability to be foster parents, which was relevant to their ability to take custody.  The placement had a negative impact on mother's relationship with child, but mother herself exacerbated the negative impact by her delay in challenging the errors.
Mother also raises issues related to the failure of the court to comply with the reporting requirements of SectionSection 211.455 (TPR report), 453.070 (adoption full investigation) and 453.077 (adoption post-placement assessment).  These claims are also reviewed under the plain error standard. 
The requirements of Chapter 211 are mandatory.  Failure to comply requires reversal, as the lack of a report means the court is not fully informed on all issues.  Therefore, the termination of parental rights is reversed.  The purpose of the Chapter 453 reports is to provide the court with information for its determination as to whether the child is suitable for adoption.  Completion of the reports post-decree is futile.  In this case, the court received a report and a one paragraph update (the GAL furnished the update) about the fitness of petitioners to be foster parents, not adoptive parents.  It was manifestly unjust for the court to enter its judgment without the essential information required by these reports.  This requires reversal.  A remand is required if petitioners presented sufficient evidence to make a submissible case on the claim of abandonment. 
Incarceration alone does not constitute abandonment, although it may be considered, along with additional evidence, showing that a parent intentionally withheld his presence, care, love, protection, support and opportunity for display of filial affection.  Mother's arrest caused an involuntary end to her custody, but mother had no further involvement thereafter.  One post-petition gesture to request visitation does not outweigh the substantial evidence of abandonment.  Mother's expression of surprise about her child's whereabouts on September 9, 2007 shows that she had not been in contact with her brother or sister about her child.  Mother's reliance on family members for care of her child does not excuse mother from maintaining a relationship with her child.  There is, therefore, clear, cogent and convincing evidence of abandonment under Chapter 211.
Under Chapter 453, an adoption can be granted without consent if there is abandonment for the 60 days immediately preceding the filing of the petition.  Mother made no effort during the relevant period, August 5, 2007 to the date of filing, October 5, 2007.  There is clear, cogent and convincing evidence of abandonment under Chapter 453. 
On remand, if adoptive parents continue to rely on Chapter 211, the juvenile officer must be joined as a party and shall actively participate in the trial.  In either an adoption or TPR, the GAL shall diligently discharge the duties of a GAL under Section 211.462.3.
Reversed and remanded. 

Two unauthorized absences from foster care by mother wherein she takes her child with her do not constitute sufficient evidence of neglect and the decision of the trial court is reversed and the case is remanded with directions that the child be returned to mother's custody.  In Interest of J.M., 94515 (Mo. App. E.D., December 21, 2010), Mooney, J.
Mother, already under juvenile court jurisdiction, appeared pro se for a review hearing.  The court ordered mother's child taken into protective custody for neglect.  Three months later, the court found mother had engaged in a pattern of neglectful behavior.
The petition alleged a pattern of neglectful behavior, including leaving a court ordered placement on two occasions (once in October 2009 and once in July 2008) and by failing to supervise the child. 
Three of five witnesses testified that they had not observed any conduct giving them any cause to suspect abuse or neglect.  The therapist said there were issues with parenting, but none requiring a report of abuse or neglect.  Another witness testified that the main reason for the removal was to motivate mother to do what she needed to do.
The trial court expressly found that the allegation of failing to supervise had not been proven, but that the other allegations had been proven.  Mother appeals.
On appeal, the court holds that two unauthorized absences from her own foster care placement wherein mother took her child with her does not constitute evidence of neglect.  Reversed and remanded with directions that the child be returned to mother's custody.

The Missouri Bar Courts Bulletin, 11-May