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
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
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
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