Juvenile Law

Shawn R. McCarver, Esquire

Termination affirmed for parental unfitness and abuse/neglect based upon aggravating factor of failure to support.  Parent is required to support child even when in custody of the Division and even absent a court order or request.  Continued drug use, including in the presence of the child, and a positive drug test showing use at time of trial or shortly before, is a sufficient predictor of future behavior.  Procedural challenges, including failure to order investigation, failure to obtain home study on adoptive parents, and failure to join the juvenile officer as a party, reviewed for plain error, are rejected for lack of showing of manifest injustice.  In Interest of D.D.C., No.73294 (Mo. App. W.D., August 16, 2011), Newton, P.J.

Father appeals the judgment terminating his parental rights and permitting adoption of the child by the foster parents.  Father did not challenge the ground of parental unfitness, but did challenge the ground of abuse/neglect based upon aggravating factors of chemical dependency and failure to provide support. 

The court analyzed the grounds under abuse/neglect, finding that chemical dependency was not supported by sufficient evidence.  Neither drug use, nor chemical dependency constitutes grounds for termination.  Chemical dependency must also be such that it cannot be treated.  In this case there was no evidence that substance abuse treatment was offered to Father.  Absent evidence of a service plan, a substance abuse assessment, or a request or an attempt at treatment, the record does not support a finding that Father had a chemical dependency that could not be treated.

A parent is required to support a child even if the child is in the custody of the Division and even absent a court order or request.  Father made no provision for support while he was in Arizona, and after moving to Kansas City, Father only provided some toys and clothes.  Father was employed full-time and admitted he could have paid $100 per month.

Father was found unfit because of a consistent pattern of drug abuse, including use in the presence of the child.  Father argued the use was a past act, but his positive drug test is a reasonable predictor of future behavior.  Father was still using drugs at the time of termination.  This is a continued threat that Father will use while caring for the child.  While Father’s use of drugs may be treatable, the child is not required to remain in “legal limbo” for an indeterminate time.

There was sufficient evidence that termination was in the best interests of the child where the child had only limited ties to Father; Father maintained regular visitation with the child; Father had not provided support for the child; additional services might eventually allow reunification, but not with an ascertainable period of time; Father showed interest after moving back to Kansas City, but was disinterested in the child prior to moving; and there was no evidence of felony convictions, but there was evidence that Father used drugs in the presence of the child.

Father made claims of procedural error on appeal, but not at trial.  The court analyzed those for “plain error” which requires that the error result in “manifest injustice.”  The court did not comply with § 211.455.  The failure to order the investigation and social study does not require reversal where the child had been under the court’s jurisdiction for over two years and the court heard testimony, and had a home study with criminal background check, and and other reports and documents.  In addition, the court also questioned witnesses.  Father argued that Exhibit 14, a report on the adoptive parents, was not ordered by the court and did not contain information required for purposes of §§ 453.070 and 453.077.  This was rejected as Father failed to provide Exhibit 14 to the court on appeal.  Father also complained that the juvenile officer was not joined as a party.  Joinder of the juvenile officer is only required under a section not applicable to this case, and the Division was joined as a party, in compliance with § 211.447.2(1).  Father finally challenged the denial of his motion for judgment on the pleadings, based upon an allegation that the petition failed to allege specific facts.  The petition, however, is sufficient if it tracks the language of the statute and gives the parent adequate notice of the allegations.  Here, the petition alleged each ground for termination found by the trial court. 

Held: Affirmed. 

Where mother requests appointment of counsel in Termination of Parental Rights (TPR) case, and evidence shows mother is indigent, summary denial of request requires reversal and remand.  Mother’s pro se participation in trial does not waive her due process right to appointed counsel.  In Interest of D.P.P., No. 96324 (Mo. App. E.D., December 6, 2011),

After the juvenile officer filed a petition for termination of mother’s parental rights, mother filed an application stating that she was unable to afford counsel.  Mother requested that an attorney be appointed to represent her.  Mother filed an income and expense statement and financial statement showing income of $600 per month and expenses of $674 per month.  Mother’s 2009 yearly income was $7,118 she listed a checking account balance of $41, ownership of a vehicle worth $5,000, subject to a lien of $8,700, and a debt for unpaid attorney’s fees of $5,000.

Without holding a hearing, the trial court summarily denied the request, finding that mother was not indigent.  The court did not obtain an affirmative waiver of the right to counsel from Mother.  Mother participated in the TPR trial by appearing pro se, giving testimony and by cross-examining witnesses.  Mother appeals the termination of her parental rights.

Counsel shall be appointed upon request and where the requesting parent is indigent, under § 211.462.2.  The only evidence before the court (the income and expense statement and financial statement) shows that mother did not have the means to obtain counsel.  Thus, the trial court s finding that mother was not indigent is not supported by substantial evidence.  Mother s appearance and participation at trial after her request was denied does not operate to waive her due process right to have counsel appointed.  Thus, there is no evidence that mother clearly and unequivocally waived her right to counsel

Held: Reversed and remanded.