Shawn R. McCarver, Esquire
In Uniform Parentage Act (UPA) case where no party is a Missouri resident, venue is proper in any county in Missouri. The circuit court has personal jurisdiction over Mother because she filed the action and over Father because he engaged in sexual intercourse in Missouri. The trial court has subject matter jurisdiction under the constitution because the matter is a civil case. K.M.J. v. M.A.J., No. 96677 (Mo. App. E.D., January 31, 2012), Dowd, Jr., P.J.
Mother filed an action in St. Louis County under the UPA seeking declaration of paternity and an order of support and reimbursement for necessaries. The petition alleged neither parent resided in Missouri, but that the parents had sexual intercourse in St. Louis County, Missouri. Father was served by special process server in California. Prior to the UPA filing, Mother filed an action in Oklahoma for step-parent adoption. On August 16, 2010, the adoption was granted, which terminated Father’s rights. The Missouri court thereafter dismissed Mother’s UPA action on the grounds that the court did not have jurisdiction over the parties as Mother and Child resided in Oklahoma and Father was a resident of Spain.
The court had subject matter jurisdiction under Article V, Section 14 of the Missouri Constitution as the case is a civil case. The court had personal jurisdiction over the parties because Mother consented thereto by filing in Missouri and Father is subject to personal jurisdiction in Missouri under § 210.829.2 because he engaged in sexual intercourse in Missouri. Venue is proper in St. Louis County because where the venue choices set forth in § 210.829.4 (child’s residence, mother’s residence, alleged father’s residence or where he may be found) are not applicable, the general venue statute allowing filing in any county in Missouri where no party is a Missouri resident controls.
The Missouri case may proceed to determine support and necessaries owed prior to the grant of the adoption by the Oklahoma court.
Held: Reversed and remanded.
Unemployment is no excuse for failure to support where there is no evidence Father was incapable of employment. Father’s visitation is so inconsistent as to amount to token contact. The K.A.W. factors were established to show neglect as a ground for Termination of Parental Rights (TPR). Failure to rectify is proven by Father’s failure to obtain safe and stable housing and his failure to comply with all but one of the tasks on the service agreement. TPR is in the best interests of the children where Father’s ties with the children are harmed by his own conduct, and where he has failed to support the children and where there were no additional services that could be offered. In Interest of B.J.H., JR., et al., Nos. 73717 & 73755 (Mo. App. W.D., January 10, 2012), Martin, J.
The TPR trial began January 12, 2011. Father did not pay support after April 2010, and child support arrears was $2401.86. Father failed to finish parenting classes, complete a psychological evaluation, apply for low income housing, and also missed 57 of 118 visits over the course of the case. In the six months leading up to filing of the TPR petition, Father missed 19 of 25 visits. TPR was granted for abandonment, neglect and failure to rectify.
As to abandonment, Father’s unemployment, a result of his being fired for gross misconduct, is not good cause for failure to support. There was no evidence that Father was incapable of employment. Father did not apply for jobs suggested by the case worker, and he missed an unemployment report date, resulting in discontinuance of his unemployment benefits. Evidence that a parent is capable of employment is sufficient for the court to determine that the parent is able to provide support. Father’s visitation may be disregarded as a token gesture.
As to neglect, Father’s intermittent visitation coincided with negative reactions by children toward Father including crying, anger and bedwetting. Thus, the court considered the impact of Father’s conduct on the children. Father’s conduct was severe enough to constitute neglect. Father’s living situation was unstable, Father failed to make his home safe by failing, for two years, to obtain smoke detectors and a fire extinguisher, Father visited only sporadically, failed to attend medical appointments, all of which affected the emotional health of the children. Father was afforded numerous opportunities by the Division to comply with reasonable conditions, but did not do so, which is sufficient to predict future harm.
As to failure to rectify, Father’s lack of stable and safe housing continued to exist, and Father completed only one task on his service agreement.
That TPR is in the best interests of the children is supported where Father had emotional ties, but damaged those ties by failing to consistently visit, where Father failed to support the children, where there were no additional services that could be provided, and where Father claimed commitment, but his actions demonstrated a lack of commitment to the children. Termination affirmed.
Termination of Parental Rights (TPR) for failure to rectify affirmed where TPR is in the best interests of Daughter and where Daughter had been under the jurisdiction of the court for greater than one year, where conditions which led to assumption of jurisdiction still persisted, and where Father failed to cooperate with services and failed to follow nearly every term of the service agreement. Father’s habitual drug use, past drug convictions and recent drug trafficking conviction justified a finding that Father had a chemical dependency which prevented him from parenting Daughter. In Interest of J.M.W., No. 97077 (Mo. App. E.D., January 24, 2012), Romines, J.
In June 2009, daughter was placed in protective custody because father was incarcerated for drug trafficking and mother was homeless. The initial plan was reunification and father was granted certain visitation and services were offered. In September 2010, the Division filed a TPR petition. A hearing was held in March 2011. Father initially wrote letters from prison, but sent no further letters after May 2010. Father did not inform the service worker when he was moved to a different prison and failed to respond to inquiries concerning programs in which he was participating in prison. The worker later learned father had completed no programs in prison, including a substance abuse evaluation and treatment that had been ordered by the court.
Sufficient evidence supported TPR for failure to rectify where daughter had been under the jurisdiction of the court for greater than one year. The conditions which led to assumption of jurisdiction still persisted and father failed to cooperate with services. Father failed to follow nearly every term of the service agreement. The division made efforts to provide services to father and stayed in contact with him by letter, but father failed to comply with the division’s requests for letters, contact, and information about programs which father was taking. Father had various drug convictions and was in prison for trafficking. Although he apparently did complete a drug program in prison, his habitual use and conviction history justified a finding that father had a chemical dependency which prevented father from parenting daughter.
HELD: Affirmed. TPR was in the best interests of the child where there were no emotional ties between father and daughter, where father had only sent one letter to daughter since May 2010, where father did not pay even nominal support and where there are no additional services that could be offered to father to aid in reunification. Father showed interest, but lacked commitment to daughter as evidenced by his failure to communicate or to complete services recommended and offered.
Mother’s claim that she was denied effective assistance of counsel is rejected where her attorney stipulated to admission of exhibits and no party called witnesses. Assuming, without deciding, that Mother is entitled to effective assistance of counsel at an adjudication/disposition hearing as in a Termination of Parental Right (TPA), Mother failed to prove prejudice. Further, Mother did not allege her right to adduce evidence was restricted in any way. Stipulations and failures to object to evidence are treated, in post- conviction relief cases, as matters of trial strategy, and rarely support a claim for ineffective assistance of counsel. In Interest of I.R.S., B.S. and C.T.S., Nos. 31312, 31313 and 31314 (Mo. App. S.D., January 25, 2012).
At the juvenile adjudication/disposition hearing, the matter was submitted by stipulation and evidence consisted of exhibits offered by the juvenile officer. No party called witnesses and no objection was made to the exhibits. The court assumed jurisdiction and ordered a written treatment plan. Seven months later, Mother claimed the court should not have taken jurisdiction and complained about her attorney. The attorney was allowed to withdraw and the court appointed another attorney for Mother. On appeal, Mother claims ineffective assistance of counsel and says she was denied a meaningful hearing due to the brevity of the hearing, counsel’s failure to object to and counsel’s stipulation regarding the exhibits. Mother also argues that her attorney should have argued that the evidence was insufficient for the court to assume jurisdiction.
The court assumed, without deciding, that the right to counsel, including appointed counsel, implies a right to effective assistance of counsel at the adjudication, just as in TPR cases. Inherent in a claim for ineffective assistance of counsel is that prejudice must be proven. Mother must demonstrate that different actions by counsel would have resulted in a different outcome.
As to the brevity of the hearing, Mother did not allege that her right or ability to offer evidence or to present her case was restricted, and Mother cited no proof that she wanted to offer. Stipulations and failures to object to evidence are treated as matters of trial strategy in post-conviction relief cases, and rarely support a claim for IAC. This situation is no different. Mother asserts no substantive objection and does not argue that live witnesses would not have testified as stated in the exhibits. Mother did not cite a need or desire to cross-examine. Most of the exhibits’ content would have been admissible even had counsel been more adversarial. However, in a court tried case, it is nearly impossible to predicate reversal on erroneous admission of evidence. In addition, the rights and issues in TPR cases are not the same as in a jurisdictional hearing. Effective representation and strategy, therefore, may not look identical at the two types of hearings. The ongoing nature of an abuse/neglect case and the focus on reunification means, hypothetically, that trial strategy could be not to deny the issues, but to highlight parental efforts and progress toward improvement.