Juvenile Law

Editor:
Shawn R. McCarver, Esquire

Termination of parental rights for parental unfitness is affirmed where factors related to father’s lengthy incarceration render father unfit for the reasonably foreseeable future. Father is incarcerated out of state, and is thus unable to receive services or have visitation. Further, he is not expected to be released until 2016, he was unable to establish a bond before being sent to prison due to the young ages of the children, he has no other relatives willing or able to care for the children, and upon release from prison, he would have to begin the process of working on parenting skills and establishing a bond with the children – a process that could take years. In Interest of C.S. and C.S., Jr., No. 73782 (Mo. App. W.D., November 1, 2011), Mitchell, P.J.

Father was arrested for possessing a stolen firearm while mother was pregnant. Father was incarcerated by the time the twins were born. Mother committed suicide, and the children were placed in the custody of the Division, in the home of the Knights, one of whom was a relative of mother. From prison, father indicated he was opposed to termination of his rights, and he told the worker he would do whatever was asked of him. Father maintained contact with the worker by e-mail, sent cards and letters to the children, arranged to have Christmas gifts sent to the children, attempted to have his sister take the twins, and had both his sister and his mother visit the twins after mother committed suicide. Father’s sister decided, however, that she could not care for the twins.

Due to his imprisonment, Father was not able to visit the children or to receive any other services. His imprisonment prevented the children knowing him and also prevented the establishment of a bond between father and the twins. Neither father nor any of his relatives provided support for the twins.
Father’s parental rights were terminated for neglect and for parental unfitness. Father appeals, alleging that his rights were terminated solely because he was incarcerated. On appeal, the court found that sufficient evidence supported termination for parental unfitness. The trial court’s finding that father is unfit is not based solely on father’s incarceration. Termination is, instead, based on factors related to father’s incarceration. Those factors include the fact that father is incarcerated out of state, and is thus unable to receive services or have visitation, he is not expected to be released until 2016, he was unable to establish a bond before being sent to prison due to the young ages of the children, he has no other relatives willing or able to care for the children, and upon release from prison, father would have to begin the process of working on parenting skills and establishing a bond with the children, a process that could take years.

Held: Termination affirmed.


Termination of parental rights for abuse/neglect and failure to rectify on the aggravating factor of permanent mental condition is reversed where mother received substantial services; made more than minimal progress on two service agreements; issues with cleanliness of mother’s home were largely corrected; and mother’s mild mental retardation and depression were treatable, allowing mother to correct her parenting deficiencies with help, although mother's depression could impair mother’s ability to parent and might cause mother to lack the motivation to develop necessary parenting skills. In Interest of L.J.D., No. 96322 (Mo. App. E.D., November 15, 2011), Odenwald, P.J.

Mother appeals the termination of her parental rights for abuse/neglect and failure to rectify on the aggravating factor of permanent mental condition. Child remained in mother’s care for the first eleven months of life, but was removed because of unsanitary conditions in the home. Mother received considerable services and entered into two service agreements.

During a single session involving several tests, mother was diagnosed by the testing psychologist with mild mental retardation and depression, which “could impair” mother’s ability to parent the child. The psychologist never observed mother with the child and never met the child, and testified that mother’s depression might cause mother to lack the motivation to develop necessary parenting skills. The psychologist admitted that she had similarly diagnosed patients who were excellent parents, that mother’s condition was treatable and that mother could correct her parenting deficiencies with help. This evidence is insufficient, as a matter of law, to support termination of parental rights.

In order to terminate parental rights on the aggravating factor of mental condition, the condition must (1) be supported by competent evidence, (2) be permanent or not likely to be reversed, and (3) render the parent unable to knowingly provide care, custody and control. In addition, even a qualifying mental condition cannot be the basis for termination if the parent has access to additional support because parenting is frequently a “group effort.”  Further, the legislature has enacted §§ 211.447.5(2) and 211.447.10, which, respectively, prohibit discrimination based upon disability or disease and prevents termination of parental rights based upon a disability or disease without showing a causal relation between the disability or disease and harm to the child.

The cleanliness issues related to the home had largely been corrected by the time of trial, although mother had lice shortly before the trial and there was speculation that mother may expose the child, who suffers from asthma, to cigarette smoke. Neither issue was cause for termination.

As to the service agreements, the standard is whether mother made progress, not whether she completed the agreements. Although mother failed to accomplish some of the benchmarks of the agreements, she made more than minimal progress toward the agreements.

Termination reversed.


(1)  Where juvenile is charged with a status offense, same due process accorded to juvenile charged with delinquency does not apply, so trial court did not err in refusing to dismiss or stay proceedings after determining juvenile was incompetent. (2)  Rather than dismiss or stay proceedings, trial court correctly appointed a GAL so that juvenile was represented by both a GAL and an attorney. (3)  Clear and convincing is the correct burden of proof for a status offense. (4)  Section 211.059 is not violated where juvenile is not questioned, but instead makes spontaneous statements. (5)  Section 211.061.1 is not violated where juvenile is not taken immediately to the juvenile officer after arrest, but instead is driven a few blocks back to the scene of the crime so the arresting officer can confer with juvenile’s mother, where delay and deviation was not unreasonable. In Interest of A.G.R., No. 73007 (Mo. App. W.D., December 27, 2011), Pfeiffer, P.J.

Juvenile was charged under a second amended petition with a status offense (behavior injurious to the welfare of a child) by exposing his genitals and placing his hand on the hand of his two-year-old niece and moving her hand up and down on his exposed penis. When picked up by the police, juvenile made a spontaneous statement, after which he was instructed by the officer not to speak about anything that occurred. The officer took juvenile a few blocks back to his uncle’s house, where the acts had occurred, and told juvenile’s mother that juvenile would be transported to the police station and from there juvenile would be transported to juvenile detention.

Although initially charged with an act of delinquency, the juvenile officer amended the petition to charge a status offense. After a competency evaluation, the court determined that juvenile was mentally incompetent and appointed a GAL to advocate for juvenile’s best interests. Juvenile also had a lawyer to represent him. Legal counsel moved to dismiss or stay the proceedings while the juvenile remained incompetent. The trial court denied the motion. Juvenile appealed.

Although moot, the court considered the appeal as a matter of general interest and importance. As juvenile was charged with a status offense, rather than an act of delinquency, the due process rights accorded criminal defendants do not apply. Due process requires competence to stand trial in a criminal matter, however, there is no such requirement in civil cases. Instead, parties who are incompetent are entitled to appointment of a GAL. A status offense is unique to juveniles and such offenses are treated differently than delinquency offenses. The burden of proof is clear and convincing instead of beyond a reasonable doubt, status offender records are closed, and different rules apply to the use of secure detention. Status offenders may not be placed in secure facilities unless later adjudicated for delinquency, sex-related acts charged as status offenses do not require sex offender registration. A status offense is not a prior offense for purposes of mandatory certification based upon commission of two or more prior unrelated offenses, and status offenses cannot be used in certain sentencing consideration in subsequent adult criminal proceedings. Since juvenile was not exposed to the consequences of a delinquency adjudication, protections available to delinquent offenders are not afforded to the juvenile. Failure to dismiss or stay the proceedings was not error.

Juvenile’s complaint that the court should have applied the beyond a reasonable doubt burden of proof is also rejected, as the juvenile was charged with a status offense. If no procedure is specifically provided in the rules, then practice and procedure customary in proceedings in equity govern a juvenile proceeding. The burden of proof in equity proceedings is clear, cogent and convincing evidence.

Since § 211.059 was not violated, there was no requirement to suppress juvenile’s statements. Although juvenile was not read his rights, he was not questioned. Finally, taking juvenile back to the scene of the crime a few blocks from the place of arrest was not a violation of § 211.061.1 since the delay was not unreasonable and involved conferring with juvenile’s mother to advise her where juvenile would be taken.

Held:  Affirmed.