Juvenile Law

Editor:
Shawn R. McCarver, Esquire

Trial court was not without subject matter jurisdiction due to alleged erroneous appointment of Father to serve as child’s next friend in Uniform Parentage Act (UPA) case because (1) the UPA cannot take away subject matter jurisdiction granted by Constitution; and, (2) although the UPA has a permissive list of who may be appointed next friend for a minor, Rule 52.02 does not, and to the extent of any inconsistency, the Rule controls. In re E.A.K. by next friend R.L.K., No. 30936 (Mo. App. S.D., September 20, 2011).

Mother unsuccessfully moved to set aside a default judgment and Mother appeals, arguing that the trial court lacked jurisdiction to enter the judgment. Child was born to Mother and Father, who were not married. Father was named as such on child’s birth certificate, child was given Father’s last name, and the parties shared child’s care and custody for seven months before Mother took child and left the country. Father filed a petition under the Uniform Parentage Act. Father was appointed as child’s next friend. 

The court entered a judgment declaring paternity and making custody orders. Ten weeks later, Mother filed a motion to modify the judgment. Nearly five months after that, with her motion to modify still pending, Mother moved to set aside the judgment, alleging that Father was not qualified to act as next friend. The court denied the motion and mother appeals, arguing that Father was not a “father” for UPA purposes until the court declared his paternity; thus, his earlier appointment as next friend violated the UPA; and as a result, child was not properly a party to the case. Rule 52.02(m), however, provides that even a total failure to appoint a next friend or guardian ad litem “shall not invalidate the proceedings” if the minor’s interests “were adequately protected.”  Further, the jurisdictional view underlying Mother’s theory has been laid to rest by J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009) and its progeny, which recognize just two types of circuit court jurisdiction: subject matter and personal. This was a civil case, so the trial court had subject matter jurisdiction under the Constitution, and it cannot be taken away by a statute. Personal jurisdiction was not at issue here. Thus, Mother’s jurisdictional analysis is rejected.

Mother also argues that Father was not qualified to serve. “Father” is not a term defined by the UPA. Next friend appointments are addressed both by that statute and Rule 52.02. The statute states that a father and specified others “may” act as next friend; the rule, governing civil actions by and against minors in general, has no such list. There may be no conflict because “may” usually is permissive, not mandatory. If there is an inconsistency, however, Rule 52.02 controls.

Mother never suggests any prejudice to herself from Father’s appointment or any conflict of interest or problem beyond her technical, non-meritorious Section 210.830 complaint. Judgment affirmed.

Termination of Mother’s parental rights for neglect with aggravating factor of mental condition affirmed where Mother’s mental illness was well documented, did not improve after years of treatment and where Mother, even while on medication and receiving treatment, made threats to kill herself and the children. In Interest of T.L.B., et al., Nos. 31135 and 31139 (Mo. App. S.D., September 21, 2011).

Mother appeals the termination of her parental rights and argues the trial court’s finding that Mother’s mental condition is either permanent or has no reasonable likelihood of being reversed and renders her unable to provide the children with the necessary care, was against the weight of the evidence.

An against-the-weight-of-the-evidence argument requires completion of four sequential steps: (1) identify a challenged factual proposition; (2) identify all of the favorable evidence supporting the proposition; (3) identify evidence contrary to that proposition, resolving all conflicts in testimony in accordance with the trial court’s credibility determinations; and (4) demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.

To support termination, the mental condition must be so severe that it renders the parent incapable of providing minimally acceptable care and the condition cannot be reversed or improved in a reasonable time.

Mother’s mental illness was well documented as both in-depth testimony and reports were presented from various mental health professionals treating Mother. She was diagnosed with depression, panic disorder, obsessive compulsive disorder, eating disorder, personality disorder NOS (not otherwise specified) with histrionic and borderline traits, mood disorder NOS, and narcissistic personality disorder. The evidence supports the conclusion that Mother’s conditions cannot be resolved within a reasonable period of time as several mental health professionals reported little to no change in her conditions after years of treatment.

The evidence showed the severity of Mother’s condition and its effect on caring for the children and their safety. While on medication and while undergoing therapy, Mother made threats to kill herself and the children. Mother continued to express suicidal statements. None of the children, except the youngest, desired to be reunited with Mother. In addition, mental health professionals determined it was unlikely Mother would be able to care for a child safely and appropriately. The older children were parentified due to Mother placing too much parenting responsibility on them. Judgment affirmed.

(1) Each ground for termination of parental rights must be found by clear, cogent and convincing evidence, and the judgment must so recite. (2) Each fact supporting a particular ground need not be explicitly found by clear, cogent and convincing evidence. (3) It is not error where the trial court did not recite the burden of proof as to each aggravating factor where the trial court did correctly recite the burden of proof as to the specific ground for termination. (4) Mother’s due process rights are not violated by Missouri’s involuntary termination statutory framework which requires that the ground be established by clear, cogent and convincing evidence, but which requires that best interests be found only by preponderance of evidence. (5) The stricter standard as to the ground is required to protect the parents’ fundamental liberty interest in the care, custody and management of their child. (6) The stricter standard is not required as to best interests as to do so would transform a statutory protection for the child into a statutory impediment for the child. (7) Where the court found continued care in the hands of Mother would likely cause future harm to the child based upon past conditions and the conditions existed at the time of judgment, the court has adequately addressed the requirement that past conduct demonstrate a risk of future harm. In Interest of B.H., No. 91584 (Mo. banc October 4, 2011), Russell, J.

Mother appeals the termination of her parental rights. She alleges that the trial court did not correctly articulate the proper burden of proof for the evidence supporting the termination. To terminate parental rights, it must be proven that one or more statutory grounds exist and that termination is in the best interest of the child. Section 211.447 requires that the ground be proven by clear, cogent and convincing evidence. Best interests need only be proven by preponderance of evidence, a lower standard.

Although the trial court terminated on three grounds, the court stated the burden of proof as to only one ground, i.e. the ground of abuse/neglect. The other two grounds, therefore, do not meet the statutory requirements. The court made findings as to all four aggravating factors. The court did not, however, state the burden of proof as to each of the supporting factors. The court must state the burden of proof as to each ground, not each factor supporting the ground.

Mother asserts a violation of her due process rights in not requiring the best interests finding to be supported by clear, cogent and convincing evidence. Missouri has a two-step analysis in termination cases. First, the ground must be shown by clear, cogent and convincing evidence, and then termination must be proven by preponderance of evidence to be in the child’s best interests. The first step protects the fundamental liberty interests of the parent in the care, custody and management of their child. The second prong is not, however, a protection for the parent. To impose a higher standard of proof for the second prong of the analysis would transform a statutory protection into a statutory impediment for the child.

The trial court adequately addressed the prediction of future harm by finding that continued care by mother would cause harm in the future based upon past conditions that still existed at the time of judgment. Termination affirmed.