Juvenile Law

Editor:
Shawn R. McCarver, Esquire

Termination of parental rights (TPR) for neglect reversed where there was no evidence of either a current chemical dependency or a current failure to provide food, clothing, shelter or education. TPR for failure to rectify is also not supported by sufficient evidence where Father has not been in jail since 2004 and where there is no evidence that contact between Mother and the child is potentially harmful to the child. Judgment taxing one-half of appointed counsel’s fee to Father is reversed as § 211.462 only permits taxing of such fees to the county or the agency having legal or actual custody of the child. In Interest of C.J.G., Nos. 31238 and 31239 (Mo. App. S.D., January 30, 2012).

The first TPR judgment involving these parties was reversed for failure to provide the social study at least 15 days prior to the trial. The second TPR petition was dismissed by the Division. The subject of this appeal is the Amended Judgment terminating Father’s parental rights entered March 21, 2011. The trial court granted TPR for neglect on the aggravating factors of chemical dependency and repeated or continuous neglect; and for failure to rectify.

Father had a chemical dependency, but there was no evidence that Father continues to suffer from any chemical dependency. Father had not used drugs since 2003. Father had not used alcohol since 2007. Father was married, successfully raising a child, attending college, and had participated in numerous programs. Father was described as a “success story” after prison. There was also no substantial evidence that Father failed to provide food, clothing, shelter or education for the child. Father had paid $3,190 toward arrearages of $12,7140.00, and Mother had paid $5,170.71 for support. Although indigent, Father and Mother were adequately caring for their second child, who has a severe medical issue.

The evidence also did not support a finding of failure to rectify. The condition that led to assumption of jurisdiction was that Father was in jail at the time of the child’s birth. Father is not in jail and has not been since 2004. There is no evidence that Mother is potentially harmful to the child, which is a condition cited by the trial court as a harmful condition preventing reunification. Mother had been allowed unsupervised visits with the child, so even the Division did not believe contact with Mother was harmful. Failure to sign the service plan is not a basis for termination of parental rights. Finally, § 211.462 only permits taxing of fees for appointed counsel to the county or the agency having legal or actual custody of the child. Therefore, the judgment ordering Father to pay one-half of said fee is reversed, as is the termination of parental rights judgment itself.

Held: Reversed.


Termination of parental rights (TPR) for abandonment reversed where Father learned of the child only one month prior to the filing of the petition against him; thus, he did not abandon the child for the required six month period. TPR for repeated or continuous neglect reversed where Father wrote letters, promoted his family as a placement resource for the child, and did nearly everything asked of him. His failure to provide financial or in-kind support does not justify TPR in this case. In Interest of G.T.M., No. 31470 (Mo. App. S.D., February 29, 2012).

Child was born August 2009. Child was removed from Mother in October 2009 when Mother tested positive for methamphetamine. At that time, another man was thought to be the child’s father. The caseworker learned that Father might be the child’s father in July 2010. Father agreed to a paternity test, which was given September 2010. A TPR petition had already been filed in August 2010 seeking termination of Mother’s rights and the rights of the “unknown Father.” In October 2010, test results confirmed Father was the child’s father. The caseworker notified Father in late November 2010. Father signed a treatment plan and other documents in mid-December 2010. In late December 2010, the TPR petition was amended to name Father. The amended petition alleged that Father had abandoned the child for the six months prior to filing of the petition.

After Father learned that he was the child’s father, he sent the child an appropriate letter, expressed his intent to get custody upon release from prison in April 2012 and he recommended the child’s placement with relatives until he was released. Father maintained regular contact with the caseworker, as did the paternal grandmother, who also inquired about the child and had a home study done on her home by the time of the trial. Father completed most tasks requested of him on the service agreement.

Father’s rights were terminated for abandonment and neglect. Father appeals. He alleges that the statutory six month period of abandonment was not met because Father learned of the child only one month prior to the filing of the amended TPR petition. Given the short time between when Father learned of the child and the attempt to terminate his parental rights, abandonment is not supported by substantial evidence.

Father also alleges that termination for neglect is not support by substantial evidence. Father wrote letters and sent documents requested and promoted his family as a placement resource. Failure to provide financial or in-kind support does not support termination for neglect on the aggravating factor of repeated or continuous neglect where Father otherwise cooperated with the Division.

Held: Reversed.


Father’s appeal from an order entered under § 210.720 (a permanency hearing) is dismissed as there is no basis in either Chapter 210 or 211 for an appeal of an order entered in a permanency hearing. In Interest of T.G.O., No. 95829 (Mo. App. E.D., March 6, 2012), Sullivan, J.

Child was born to Mother, at which time he tested positive for amphetamines. Child was taken into the custody of the Children’s Division. Father was found to be the child’s Father and was made a party to the proceedings. At a permanency hearing, Father made an oral request for custody, invoking the non-offending parent statute. Father did not make his request under a dispositional hearing under § 211.181 or a modification under § 211.251. Father’s request was denied and Father appeals. The right to appeal is purely statutory. Section 211.261.1 provides that an “appeal shall be allowed to a parent from any final judgment, order or decree made under the provisions of this chapterwhich adversely affects him.” Father is appealing an order under § 210.720. There is no basis in either Chapter 210 or 211 for an appeal from an order entered under § 210.720.

Held: Appeal dismissed.