Juvenile Law

Editor:
Shawn R. McCarver, Esquire

(1) Father, listed on birth certificate, is properly appointed as next friend as he is on birth certificate under Uniform Parentage Act.  Rule 52.02(a) prevails over the statute, and father is properly appointed next friend under the Rule as the Rule allows any interested party to be appointed next friend.  (2) Appointment of a GAL is necessary when abuse or neglect of a child is alleged, but not every matter touching on the fitness of a parent is abuse or neglect.  Allegation that father did not change diapers when necessary does not require appointment of GAL.  In re the matter of R.A.D., a minor child, et al., No. 31032 (Mo. App. S.D. August 16, 2011), Barney, J.

Father filed a petition under the Uniform Parentage Act. Mother filed a motion for appointment of a GAL and her counter-petition. Father then filed a petition for appointment of next friend. Father was appointed next friend. Mother’s request for appointment of a GAL was denied.  A judgment was entered awarding joint legal and physical custody. Mother appeals, alleging father should not have been appointed next friend.

Section 210.830 states that the mother, father, division of child support enforcement or any person with physical or legal custody may serve as next friend.  That section further states that a GAL shall be appointed only if abuse or neglect is alleged, the child is named as a defendant or the interests of the child and next friend are in conflict.

Mother alleges that father should not have been appointed next friend because he was not yet determined to be father at the time of his appointment.  Father was properly appointed as he was listed on the birth certificate as father.  Further, Rule 52.02(a), which prevails over the statute, does not require that the next friend be any of the statutorily listed persons.  The rule allows any interested party to seek appointment as next friend.

Mother also alleges the court should have appointed a GAL due to abuse or neglect.  The pleadings do not allege abuse or neglect in this case.  The only allegation that hints at neglect is that father fails to change diapers when necessary.  While some of the incidents described in the case are items the court should consider in determining custody, the court need not regard every item bearing on the fitness of a parent as abuse or neglect.

(1) Failure to appoint counsel in hearings leading up to the filing of the termination petition was not error where no request was made by parents and where trial court secured a waiver of the right to counsel at each hearing.  (2) Refusal to grant continuance where parents failed to appear for termination trial without any known excuse is an abuse of discretion where consequences are severe, parents had appeared for all but one prior hearing and where they had complied partially with the written service agreement and made progress towards reunification.  In Interest of J.R., D.R., W.R. and K.R., No. 95833 (Mo. App. E.D. August 16, 2011), Gaertner, J.

After a hotline related to unsanitary living conditions was received, the children were taken into protective custody.  Parents signed a consent judgment and order and finding of jurisdiction and waived counsel.  A written service agreement was approved.  Parents complied, at least partially, with the agreement.  Visitation was expanded to unsupervised, but then restricted again when parents did not have a proper residence. Parents attended various court hearings and waived counsel.  After a TPR petition was filed, the court appointed counsel for parents. TPR was sought for failure to rectify.  Neither parent appeared for the trial.  Appointed counsel for father requested a continuance, stating that father was aware of the trial date and had always appeared for court.  Counsel stated he had no explanation as to why father did not appear.  The request was denied and parental rights were terminated.

Parents appeal alleging that the court failed to appoint counsel from the outset of the case.  There was no request.  The court had secured affirmative waivers of counsel from parents at the earlier hearings. Parents claim that the waiver was not knowing or voluntary because they did not know that by waiving counsel and entering an agreement they were opening the door to a path that could lead to termination of parental rights is rejected, as the court warned parents that rights could be terminated if they did not comply with the service agreement.

Parents also allege that the court abused its discretion in denying the continuance on the day of the termination trial.  Considering the severe consequences and the fact that parents attended court regularly, participated in the process, did not abuse the judicial process with numerous continuance requests, had cleaned up the house, had a strong bond with the children, at least partially complied with the service agreement, attended three parenting classes, participated in evaluations and some counseling and obtained employment, denial of the continuance was an abuse of discretion.  It is not clear from the record that termination was not based on failure to comply with the service agreement rather than upon failure to rectify because the conditions leading to jurisdiction continued to exist.  Termination reversed.